10
20
1 JUDGMENT
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION. PRETORIA
CASE NO : 033715/2024
DATE: 15.05 .2026
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE ~ / NO
(2) OF INTEREST TO OTHER JUDGES ~ / NO
(3/ REVISED ~
In the matter between
ANNALI CHRISTELLE SASSON &
FRANCOIS BOUWER
And
MINISTER OF JUSTICE & CONSTITUTIONAL
DEVELOPMENT & AN NALi EN SMIT
JUDGMENT
Applicant
Respondent
VAN DER WESTHUIZEN , J · In matter 033715/2024 , the
applicants launched an application to compel the
respondents to comply with the prov1s1ons of Rule 41(A )
relating to the mediation possibility.
The truncated history of the matter in this regard ,
commenced on or about 3 February 2026 , when the
applicants served the required Rule 41(A) notice upon the
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20
2 JUDGMENT
respondents ' attorneys. In the present instance been the
State Attorney Pretoria.
In terms of the further provisions of Rule 41(A) , the
respondents were obliged to deliver an amplified Rule 41
notice in response within 15 court days .
However , on 3 February. a letter was addressed by
the State Attorney to the attorneys of the applicant
indicating that , or suggesting that the mediation be put on
hold pending other interlocutory issues
On 4 February there was correspondence forwarded
to the State Attorney pointing out the recording that the
pleadings had been closed . There Is no impediment to a
mediation process being followed and it is not necessary at
that stage to hold everything in abeyance until interlocutory
applications had been finalised .
It would appear that the proposed interlocutory , or
suggested interlocutory applications were Rule 28(1) . On
13 February , the respondents withdrew their original 28(1 )
notice.
At that stage , there was no impediment to proceed
with a response . The 15-day period in terms of the notice
expired on 24 February 2026 . Nothing was forthcoming .
Counsel on behalf of the respondents submitted that
there was in principle agreement to mediation and
immediately conceded that certain issues still had to be
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3 JUDGMENT
sorted and finalised . That concession endorses the fact
that the applicants were entitled to issue the Rule 41(A)
notice.
On 25 February the applicants ' attorney granted a
further five days to enable the respondents to comply with
the Rule 41(A) application. indicating that if they do not
respond appropriately , an application to compel in terms of
Rule 41(A) will be served .
Assuming that said extension warning was received
10 by the respondents' attorneys on 25 February , or shortly
thereafter . They still did not respond .
On 9 March 2026 . having received no response to any
request , the application to compel in terms of Rule 41(A)
was filed and served . Four or five days later a letter on
13 March 2026 . the applicants ' attorneys addressed a
further letter, where it was indicated that the original plea
amendment notice had been withdrawn and the parties were
obliged to proceed on 16 March .
The respondents filed a response to the applicants '
20 Rule 41(A) notice and effectively complying with the
application to compel them . The compliance by the
respondents to the application did not deal with the issue of
costs that were incurred to launch the application .
It is trite that where a party effectively concedes an
application , or the relief in an application , it would be
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4 JUDGMENT
obliged to pay the costs of such application. A full
hardiness of the respondents not tender and to outright
refuse it , to pay the costs is not in accordance with the
principles applicable .
In response to a request to tender the costs on
20 March , the respondents delivered a further notice of
intended amendment . There appears to be a view that that
amendment , or proposed amendment was defective , It was
irregular and that was recorded in the applicants · response
10 thereto on 23 March 2026 .
Still being full-hardy , the respondents refused in a
letter of 26 March 2026 to tender the costs and suggested
that the costs should be reserved , to be argued in the main
application.
On 10 April 2026 . the respondents effected their
amendment of their plea. by delivering a compliant amended
pages and that is a full month after they delivered their
Rule 41 (A) response .
On 29 April 2026 , the respondents were advised of
20 the set down of the matter on 15 May, being today ' s date
and that the issue of costs would be the only issue to be
addressed.
The only response from the respondents was on
12 May 2026 , three days earlier to todays date . On that
day the respondents requested that the matter be removed
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5 JUDGMENT
from the roll as it becomes opposed and to be moved to the
opposed roll and an answering affidavit was also served.
The whole issue is , as counsel on behalf of the
applicants submitted his opening submissions . in his oral
argument was that It is a storm In a teacup It is in fact a
huge storm in a very small Expresso cup
If It Is correct , as is submitted on behalf of the
respondents that in principle there was an agreement to
mediate and considering the concession that there were still
10 issues that had to be finalised and those issues were
finalised in the belated response to the Rule 41(A) notice
and subsequent application to compel .
No logic can be inferred why there would be such a
resistance to the issue of costs. Where . at that stage the
costs were in a greater scheme negligible . Nevertheless , a
simple compliance with an application ' s request evolved
into a monstrous argument on costs.
It is submitted on behalf of the applicants that the
applicants are now out of pocket , having to argue an
20 opposed motion on a simple issue such as costs and that
the costs that are really in issue would be negligible , but for
the full-hardiness on the part of the respondents , it is
submitted today on behalf of the respondents that the whole
issue , that the order In respect of costs which has now
evolved into a monstrous opposed motion should be borne
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6 JUDGMENT
by each party . should bear their own costs. The logic in
that submission and proposal ,s lost.
The only inference , in my view , would be Is that the
parties are attempting to catch files of«>ne another . Taking
the eye of the real problem why a matter has commenced ,
evolved into an agreed mediation , but still sticking needles
in each other ' s eyes .
My initial view was that It being a storm In a teacup ,
that the issue of costs should be follow a very simple route ,
10 namely that it be costs in the cause .
However , after hearing argument by both parties , it is
clear that the respondents are trying their utmost to strain
the relationships between the parties , by not addressing the
real issue , but tending to draw out the litigation . Such
attitude is not expected from the respondents in view of
their varies capacities It may very well be that It is an
issue of egos , that does not warrant a matter to evolve into
the present.
In my view , the applicants could also have stepped
20 down and agree to an order, or to an agreement that the
costs would be costs in the cause. If the applicants are
successful in the mediation , they would get their costs . If
the mediation fails and the applicants were successful In
their action, they would still be awarded their costs.
The attempt to focus on skirmishes , rather than the
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7 JUDGMENT
real battle , escapes the logical consequences of such
actions .
It is further submitted on behalf of the applicants that
the answering affidavit to this application and particular the
issue of costs was deposed to by a person who does not
have the personal knowledge . A reliance on a so-called
confirmatory affidavit Is neither here nor there .
The issue of condonation for the very late filing of the
answering aff1dav1t Is also not properly addressed .
10 Following from the foregoing am of the view that
there ought to be a distinguishing in cost orders . In the
first instance , had the respondents played ball , the costs
would have been on a party-and-party basis on Scale A .
That ought to have been tendered by the respondents .
However , the further costs that were incurred in
arguing the issue of costs before the Court on an opposed
basts , where there is no real reasons or circumstances
explained why the answering affidavit is belatedly filed , at
the so-called eleventh hour. That attitude on the part of the
20 respondents ought to be sanctioned
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8 ORDER
ORDER
accordingly grant the following order
1. The respondents are to pay the costs incurred in the
la unching of the application to compel in terms of
Rule 41(A) on a party-and-party basis , Scale A .
2. The further costs incurred as a consequence of a full
hardy opposition to the cost order , the respondents
are directed to pay the costs of the frivolous
opposition on an opposed scale of attorney and
client.
VAN DER W1($THUIZEN , J
JUDGE OF THE HIGH C OURT
DATE : ...... ~ .. . ~';}.<;.~'-'.>- ~-X....
033715/2024_ 15052026 / AWB
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