M.K.N v Kalenga (65432/2018) [2025] ZAGPPHC 1361 (8 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1361 | Noteup | LawCite sino index ## M.K.N v Kalenga (65432/2018) [2025] ZAGPPHC 1361 (8 December 2025) M.K.N v Kalenga (65432/2018) [2025] ZAGPPHC 1361 (8 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1361.html sino date 8 December 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy FLYNOTES: COSTS – Mediation – Equal contribution – Mediation is a mandatory prerequisite to obtaining a trial date – Applicant’s inability to pay alone would prevent matter from advancing – Causes direct prejudice to minor – Equitable cost sharing was necessary to advance minor’s best interests and ensure meaningful access to mediation – Reserving or deferring costs risked obstructing further progress in litigation – Parties ordered to share mediation costs equally. IN THE HIGH COURT OF SOUTH AFRICA GAUTENG   LOCAL DIVISION, PRETORIA Case No: 65432/2018 (1)      REPORTABLE: NO (2)      OF INTEREST TO OTHER JUDGES: NO (3)      REVISED: NO DATE: 8 December 2025 SIGNATURE In the matter between: M K N[...]                                                                                            PLAINTIFF and DR DMM KALENGA DEFENDANT JUDGEMENT NHARMURAVATE AJ Introduction [1] This is an interlocutory application where the Applicant M[...] M[...] M[...] an adult female acting on- behalf of her minor child O[...] M[...] (the minor) seeks to compel the First Respondent to a mediation process as per the directives with costs. [2] Initially, the First Respondent, Dr DMM Kalenga, filed a written opposition to this application. However, at the hearing, he consented to proceeding with the mediation process, with the costs of the application to be determined as costs in the cause of the main application. [3] However, the First Respondent is opposed to paying the mediation expenses/ costs simply because he is of the view that the subject matter is pending before a full bench. Therefore, the costs of the mediation should be held in abeyance pending finalization of the matter pending before going the full bench. Background Facts [4] The Plaintiff M[...] M[...] M[...] an adult female instituted an action on- behalf of the minor O[...] M[...] D[…] N[...] a male born minor child born on the 9th of February 2016. [5] The First Respondents is a medical practitioner Doctor DM Kalenga an adult male specialist gynecologist and obstetrician who practices at the Botshilo private hospital situated in Soshanguve. The Second respondent is the Botshilo private hospital situated at Soshanguve. [6] The Applicant has initiated legal proceedings against the Respondents, alleging that negligent treatment was provided to her and her minor child during her admission. It is asserted that this negligence resulted in the minor experiencing hypoxia, which subsequently led to brain damage. The First Respondents proposal [7] Mr. Mataboge, counsel for the Respondent, conceded to the relief sought in the Applicant's notice of motion with respect to the mediation process. He further proposed that each party bear its own costs in relation to the interlocutory application. The Applicants partially accepted this proposal, with the exception of the issue of costs. Ultimately, both parties agreed that the costs of the application would be costs in the course. [8] The First Respondent submitted that the Defendant should not be responsible for covering the mediation expenses, asserting that these costs ought to be borne by the Applicant. In the alternative, Mr Mataboge contended that it would be inappropriate to require the First Respondent to pay such expenses pursuant to a directive whose validity and constitutionality are currently under judicial review before the full bench in the matter of PIPLA v Road Accident Fund and Others. [9] Mr. Mataboge also submitted, as an alternative argument, that the costs of mediation should be reserved until the full bench has made its final decision. He further contended that the application was filed prematurely because the constitutionality of the directives was still being challenged. Mr. Mataboge maintained that reserving mediation costs until the matter is fully resolved would be fair and just in these circumstances, as it would help to prevent any unintended prejudice. [10] Counsel for the Applicant, Mr. Uys, submitted that the Plaintiff is a minor who cannot afford the costs associated with mediation. He further contended that the Applicant is unemployed and resides in informal housing. In contrast, the First Respondent is a medical doctor who likely possesses the means to cover these expenses. Mr. Uys argued that if the First Respondent does not contribute equally to the mediation costs, mediation will not proceed, thereby prejudicing the minor by preventing the scheduling of a trial date. ANALYSIS OF THE MATTER [11]     The directive effectively introduced on the 22 nd of April 2025 introduced mandatory mediation as issued by the Gauteng division it directed as follows  when it comes to costs of the mediation that : [12] “ Professional Fees for Mediators and Costs of Mediation [1] “ 5.5.2. Unless agreed to otherwise between the parties, professional fees will be paid to the appointed sole mediator or co-mediators (where the appointment of co-mediators was agreed to between the parties), as the case may be, by the parties jointly, no less than 10 (ten) days in advance of the commencement of the mediation. ……… 5.5.4 Whilst the costs of mediation are typically shared between the parties equally, the parties are at liberty to agree to any alternative arrangement insofar as it concerns the liability for payment of the costs of the mediation and/or the mediator’s professional fees. 5.5.5 As a general rule the costs incurred by the parties in their compliance with the provisions of the Mediation Directive and this Protocol, including the mediation administration fees (if any), the professional fees for the mediator(s), the costs of the mediation (including)travelling charges and venue fees, if applicable), and the fees payable to their legal representatives for attendance at the mediation shall constitute costs in the cause and be recoverable by the party in whose favour costs are granted at the trial of the matter unless the parties reach an express written agreement to the contrary in this regard or in exceptional circumstances a court orders otherwise. - Should a matter proceed to trial, or in the absence of an express agreement between the parties in relation to the aspects of costs, the general rule set out in paragraphshall apply to all costs incurred by the parties in relation to the entire mediation process.” Should a matter proceed to trial, or in the absence of an express agreement between the parties in relation to the aspects of costs, the general rule set out in paragraph shall apply to all costs incurred by the parties in relation to the entire mediation process.” [13] The costs or expenses associated with mediation, as stipulated by the directives, are to be shared equally among the parties to the litigation. The principal concern of this Honourable Court with respect to the arguments advanced by counsel for the First Respondent is that the matter currently before the Court pertains to a minor child, O[...] M[...] D[...] N[...], who is currently 9 years of age. [14] It is well established in law that the High Court serves as the upper guardian of all minor children [2] . It would be inequitable to require the minor child to bear these costs exclusively. In circumstances such as these, the court is compelled to exercise its discretion judiciously, taking into account the socio-economic realities faced by the parties. The court’s paramount consideration must remain the best interests of the child, ensuring that the process of mediation is not rendered inaccessible due to financial hardship on the part of the parent acting on the child’s behalf. [15] If the parties do not share in the mediation costs, the applicant may be unable to proceed with the required mediation process. Mediation process is mandatory and obtaining a mediation certificate is mandatory prior to applying for a trial date, failure to participate in mediation would prevent scheduling a trial hearing. Consequently, this could disadvantage the minor child, as their case would be unable to move forward to a hearing. [16] This scenario underscores the importance of ensuring that mediation, particularly in matters involving minor children, remains accessible and fair to all parties, regardless of their financial standing. The court recognizes that imposing an undue financial burden on the parent representing the child could effectively bar the minor from securing the protections and resolutions that mediation aims to provide. As such, the equitable distribution of costs not only aligns with the directives but also serves to uphold the fundamental rights and welfare of the child involved. [17] The First Respondent is not permitted to subsequently consent to mediation with attached conditions. Mediation directives are binding upon all litigating parties unless and until they are amended or revoked. In my assessment, these directives remain in effect, and the First Respondent is not entitled to reserve mediation costs after consenting to participate in the mediation process. Once a party agrees to mediate then the directives applicable thereto apply in their entirety until they are amended (specially costs). [18] Moreover, it is crucial to emphasize that the primary objective of these directives is to ensure that access to mediation is not impeded by financial barriers, particularly in cases involving minor children. The court must guard against any approach that would have the unintended effect of excluding a vulnerable party from the mediation process due to their inability to pay. This approach not only maintains procedural fairness but also strengthens the integrity of the legal process by upholding the fundamental rights of the child and the guiding principle of acting in their best interests. [19] The interest of justice is a determinative and flexible test used by courts when considering procedural matters this has been particularly used by Zondo CJ in the Von Abo matter that: “ The interests of justice must be determined with reference to all the relevant facts….. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice [3] .” [20] The interest of justice requires that both parties share in the costs of mediation further the directives make the same expenses recoverable by the party that ultimately succeeds in the main action. The goal should be to facilitate meaningful participation in the mediation process without creating additional financial hurdles that could deter or disadvantage the party acting in the best interests of the child [4] . Conclusion [21] Given these findings, the argument raised by the First Respondent is flawed as it would be unjust to require reservation of costs under such circumstances. [22] It is clear that the equitable sharing of mediation costs is not merely a procedural requirement but a vital safeguard for the interests of minor children involved in this litigation. The Court’s approach must therefore be both pragmatic and compassionate, recognising that the effective administration of justice relies on removing obstacles that may prevent vulnerable parties from fully participating in the process. Upholding these principles ensures that the rights and welfare of the child remain central to all decisions relating to mediation and access to justice. [23] I therefore make the following order: 1. The Applicant and First Respondents are to share equally in the mediation costs. 2. Costs in the cause. NHARMURAVATE, AJ JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA For the Applicant: Adv Uys Instructed by: De Brogolio For the Respondent: Adv Mataboge Instructed by: Maria Phefadu Date of Hearing: 12   September 2025 Date of Judgment: 08 th of November 2025 [1] Directive Introducing Mandatory Mediation in the Gauteng Division [2] Shawzin v Lauver 1968 (4) SA 657 (A) at 662H – 663A as referred to in Terblanche supra at 504C [3] Von Abo v President of South Africa  2009(5) SA 345 (CC) [4] Section 28 of the Constitution “ A child’ best interest are paramount in any matter concerning the child ” sino noindex make_database footer start