VDM v VDM

The applicant and respondent were married but involved in divorce proceedings. They had an erstwhile matrimonial home in V[…] d[…] V[…], Paarl. The respondent resided in Plumstead, Cape Town, for almost two years until 27 July 2024. On Saturday, 27 July 2024, shortly after the applicant left for Europe with their children and while she had a tenant due to occupy the property from 1 August 2024, the respondent took occupation of the Paarl property. The applicant warned him via WhatsApp that she would get a court order to evict him. The respondent responded with hostile, insulting messages, stating the court would be reluctant to evict a spouse from the marital home and accusing the applicant of extortion. The applicant launched an urgent spoliation application on 30 July 2024. The respondent vacated the property later that day, about four hours after his attorneys received the unissued application and about half an hour after receiving the issued application. The substantive relief became moot, leaving only the question of costs.

• Whether the applicant was entitled to a spoliation order (mandament van spolie).
• Whether the respondent should pay the costs of the application where the substantive relief had become moot.
• Whether the applicant was required to send a letter of demand before launching urgent spoliation proceedings.
• Whether costs should be awarded on a punitive scale (attorney and own client) or on a party and party basis.
• Whether counsel's fees should be on Scale C.

The respondent is to pay the costs of the application on a party and party basis, with counsel's fees granted on Scale C.

Where an urgent spoliation application is justified and well-founded, but the substantive relief becomes moot because the respondent voluntarily capitulates by vacating the property, the applicant is entitled to costs on the basis that the application would have succeeded on the merits. A letter of demand is not a prerequisite for an urgent application to recover costs, and each case turns on its own facts. An applicant is entitled to recover costs commensurate with counsel's seniority where the respondent's indicated strategy was to complicate and delay the matter, justifying the briefing of experienced counsel.

The court observed that the respondent's WhatsApp communications could arguably be considered petulant bluster that, in a pre-electronic communication age, would have been intemperately said in the heat of the moment without being accorded long-lasting significance. The court also noted that, given the speed with which the respondent capitulated, the applicant could perhaps have limited the costs incurred on the merits, making a punitive costs order unfairly punitive to the respondent.

This case clarifies the principles governing costs awards in urgent spoliation applications where the substantive relief becomes moot. It confirms that an applicant is not required to send a letter of demand before launching urgent proceedings, particularly where the respondent's prior communications indicate that a demand would be futile. It also affirms that the conduct of the respondent which renders the merits moot does not deprive the applicant of costs, and it provides guidance on when punitive costs and higher scale costs for counsel are appropriate in family law-related property disputes.