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[1984] ZASCA 161
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Martrose Enterprises (Pty) Ltd. v Emblin (8/1983) [1984] ZASCA 161; [1985] 1 All SA 438 (A) (30 November 1984)
LL
Case No. 8/1983
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
MARTROSE ENTERPRISES (PROPRIETARY) LIMITED
Appellant
and
DEREK KEITH
EMBLIN
Respondent
CORAM
: CILLIé, BOTHA JJA et SMALBERGER
AJA
HEARD
: 6 NOVEMBER 1984
DELIVERED
: 30 NOVEMBER 1984
JUDGMENT
/
BOTHA JA
...
2.
BOTHA JA
:-
This appeal was set down for hearing on 6 November 1984. When the matter
was called in Court on that date there was no appearance
for or by the
respondent. He had in fact not received notice of the date of hearing. Counsel
for the appellant (having been requested
in advance to do so) addressed us first
on the question whether the appeal should be entertained on its merits, having
regard to
the facts I have mentioned. At the conclusion of the argument on that
question the Court announced that it was prepared to entertain
the appeal on its
merits and argument proceeded on that basis. This Court decided to deal with the
appeal on its merits because of
certain exceptional features of the
circumstances surrounding the respondent's default of appearance. It is
necessary now to refer
to those circumstances. I shall do so as briefly as
possible.
/The ..."
3.
The judgment appealed against was delivered in
the Witwatersrand Local Division on 21 December 1982, in an action instituted by
the
respondent as plaintiff against the appellant as defendant. Summons had been
issued in May 1981 and the hearing of the trial took
place during October 1982.
Throughout the proceedings in the Court
a quo
the respondent was
represented by a firm of attorneys in Benoni, Slomowitz, Dobie, Smith and
Myburgh Inc, and their correspondent
in Johannesburg, Mr David R Snaier, who
acted as the attorney of record. The appellant's notice of appeal was served on
Mr Snaier
and on the Registrar of this Court on 13 January 1983. For a
considerable period of time thereafter the respondent's aforementioned
attorneys
continued to act on his behalf in matters pertaining to the prosecution of the
appeal. So, for instance, on 18 March 1983,
Mr Slome, a member of the Benoni
firm of attorneys, refused, on the respondent's behalf, to accede to a request
by the appellant's
/attorney ...
4.
attorney to consent to an extension of the time
in which the appellant was required to file copies of the record; on 15 June
1983
Mr Snaier accepted service on the respondent's behalf of an application by
the appellant for condonation of the late filing of copies
of the record; and on
the same day Mr Snaier acknowledged receipt of two copies of the record and of
notice to the Registrar that
security for costs had been agreed upon. A firm of
Bloemfontein attorneys, Messrs E G Cooper and Sons, was appointed to act on the
respondent's behalf at the seat of this Court.
Then, on 17 and 24 February 1984, a document headed "Notice of
Withdrawal" was served on the Registrar of this Court and on the appellant's
Johannesburg and Bloemfontein attorneys. It purports to be signed on behalf of
the respondent's Benoni, Johannesburg and Bloemfontein
attorneys, and in part it
reads as follows:
/"BE ...
5.
"BE PLEASED TO TAKE NOTICE THAT SLOMOWITZ, DOBIE,
SMITH & NYBURGH of .... Benoni and DAVID R SNAIER of .... Johannesburg and E
G COOPER & SONS of .... Bloemfontein, hereby withdraw as Attorneys of Record
for the abovementioned Respondent (Plaintiff a quo).
AND TAKE NOTICE FURTHER that the Respondent's last known address is 123
Elsie Road, Baps-fontein, care of P O Box 17343, Hillbrow,
2038."
In May 1984 the appellant's Johannesburg attor-ney attempted to serve a
copy of the appellant's heads of argument and list of authorities
on the
respondent in compliance with the provisions of A D Rule 8 (1). He did so in two
ways. First, he sent a copy of the documents
by registered post to the
respondent at the post office box number in Hillbrow mentioned in the notice of
withdrawal quoted above.
The envelope was returned by the post office, marked
"Unknown", and bearing the legend: "Return to sender. Not for Box 17343".
Secondly,
he
/despatched ...
6.
despatched a copy of the documents to the Deputy
Sheriff of Bronkhorstspruit with a request that they be served on the respondent
at "123 Elsie Road, Bapsfontein", the other address mentioned in the notice of
withdrawal. The Deputy Sheriff thereafter reported
to the Registrar of this
Court that the respondent could not be found at the address stated or elsewhere
in Bapsfontein and that
enquiries from a number of people and an estate agency
in Bapsfontein revealed that the respondent was wholly unknown in that
area.
On 24 September 1984 the Registrar of this Court attempted to comply with
the requirements of A D Rule 7 (1) by despatching by registered
post an envelope
containing a notice of set down of the hearing of the appeal on 6 November 1984,
addressed to the respondent's erstwhile
Benoni attorneys, but at the address of
Mr Snaier in Johannesburg, as it appeared on a number of
/documents ...
7.
documents in the Registrar's file. It would seem
that Mr Snaier had in the meantime moved from that address to another. In any
event,
the envelope was returned by the post office to the Registrar, with
stamps on it indicating that the addressee had "left" and that
delivery could
not be effected.
On 15 October 1984 (after the appellant's counsel had been notified that
the Court would require argument on the question whether
the appeal should be
heard on its merits) the appellant's attorney filed with the Registrar an
affidavit deposed to on 8 October
1984 by Mr Slome, referred to above, which
reads as follows:
1.
I am an Attorney of the Supreme Court of South Africa (Transvaal
Provincial Division) duly admitted and practising as such as a director
of
Slomowitz, Dobie, Smith and Myburgh Inc. at 65 Bedford Avenue, Benoni
(hereinafter referred to as 'the firm').
/2. ...
8.
2.
The facts contained in this affidavit are within my personal
knowledge.
3.
I represented the Respondent, not only in the above appeal but in the
trial and motion proceedings between the Appellant and him,
,and I continued to
do so until the firm withdrew as the Respondent's Attorneys of Record in this
appeal.
4.
The firm withdrew as the Respondent's Attorneys of Record pursuant to
instructions to do so given to me by the Respondent, who informed
me that he
could not afford to contest the appeal. The Respondent informed me further that,
in so doing, he did not intend to concede
the appeal. However, he did not intend
to attend the hearing of the appeal or to argue same, either in person or by
Counsel, but
would leave the matter in the hands of the Court.
5.
I am not in contact with the Respondent at present, nor is his present
address known to me. I believe that he is somewhere in Zululand."
On these facts it is clear that if this Court
/declined ...
9.
declined to dispose of the appeal on the merits,
the only alternative would have been to postpone the hearing of it. But if that
course
was followed, it would have had the effect of depriving the appellant of
its right to be heard in this Court, unless the appellant
took steps to trace
the present whereabouts of the respondent and thereafter, depending on the
outcome thereof, to cause a fresh
notice of set down to be served on him, or to
approach this Court by way of a substantive application for directions as to a
substituted
form of service or other relief. The Court decided against burdening
appellant with the necessity of taking such further steps in
order to procure a
decision on the merits of the appeal. In weighing up the interests of the
appellant in having the appeal heard
against the interests of the respondent in
being notified of the date of the hearing of the appeal, the Court considered
the contents
of Mr Slome's abovequoted affidavit to be of decisive
importance.
/Paragraph ...
10.
Paragraph 4 of Mr Slome's affidavit makes it
quite clear why the respondent terminated his attorneys' mandate to represent
him in
matters relating to the appeal. There is, of course, no reason to doubt
the correctness of the information supplied by Mr Slome,
nor is there any reason
to think that, in disclosing that information, Mr Slome breached any confidence
reposed in him by the respondent.
The Court is accordingly obliged to take
cognizance of the information which has been placed before it.
That information discloses that the respondent intentionally and
deliberately terminated his attorneys' mandate to act for him in
the appeal,
upon the footing that he did not desire to be afforded the opportunity of being
represented or being present himself
at the hearing of the appeal. It is
implicit in his instructions to Mr Slome that he did not expect to be
notified
/of ...
11.
of the date of hearing. That being his attitude,
considerations of fairness dictate that the appellant's right to have the appeal
heard should not be frustrated or postponed because of the absence of notice of
the date of hearing to the respondent, having regard
also to the fact that his
present whereabouts cannot readily be ascertained.
It is conceivable that the respondent's attitude towards the appeal may
have changed since the occasion of his instructions to Mr
Slome, as deposed to
by the latter, because of an improvement of his financial position or for some
other reason. That possibility
should not, however, carry any weight, for it was
the respondent himself who deliberately severed the link of communication
between
himself, on the one hand, and the appellant and its attorneys, on the
other, in connection with matters relating to the further prosecution
of the
appeal, and
/if ...
12.
if he wished to restore such link in order to be
notified of the date of hearing of the appeal, it was incumbent upon him to take
appropriate steps in that regard. This he has failed to do.
I accordingly turn now to the consideration of the merits of the
appeal.
The appellant carries on business as a dealer in second-hand fork-lift
trucks ("fork-lifts"). The respondent was formerly employed
by the appellant as
a salesman. He was paid a salary of R800 per month and a travelling allowance of
R400 per month. In addition,
he earned a commission on sales of fork-lifts
effected by him. He stopped working for the appellant as from the end of March
1981.
It was the events surrounding the termination of his association with the
appellant at that time that gave rise to the litigation
between
/the ...
13.
the parties.
Some time prior to the end of March 1981 the appellant's sole director,
Milligan, received information which caused him to believe
that the respondent,
acting in collusion with one Couling, was diverting to the latter, for his
benefit, sales of fork-lifts that
should have been effected by the respondent on
behalf of and for the benefit of the appellant. Milligan consulted his attorney
and
as a result an application to Court for an interdict against Couling and the
respondent was launched. The papers in that application
were served on the
respondent on 31 March 1981, at the appellant's offices. Milligan and his
attorney were present. In the ensuing
discussion the respondent demanded payment
of the remuneration due to him for the month of March, but his demand was turned
down.
The respondent left and thereafter did not return to work. The
further
/course ...
14. course of the application need not be referred to.
In his particulars of claim the respondent alleged that the appellant had
wrongfully and unlawfully refused to pay him his salary
and travelling allowance
for March 1981, had wrongfully and unlawfully accused him of dereliction of his
duties as an employee of
the appellant (such accusation being false), had
instituted certain legal proceedings against him, and had "in all" created a
situation
in which a continuation of the relationship of master and servant had
become impossible. It was further alleged that "such conduct"
on the part of the
appellant constituted a repudiation of the contract of employment and that the
respondent, as he was entitled
to do, accepted such repudiation on 7 April 1981,
thereby terminating the contract of employment. The respondent claimed, in
respect
of March 1981, payment of his salary (R800) and travelling
/allowance ...
15.
allowance (R400), and an account in respect of
commis-sion earned by him. (It became common cause at the trial that the
commission
earned by the respondent during March 1981 amounted to the sum of
R603.) In addition the respondent claimed damages in lieu of notice
in respect
of April 1981, in an amount which was reduced at the trial to the sum of
R800.
In its plea the appellant admitted that the respondent had not been paid
remuneration for his em-ployment during March 1981, but pleaded
(a) that by
reason of the respondent's breach of contract he had disentitled himself to any
such remuneration, and (b) that the respondent
was indebted to the appellant in
an amount exceeding that of the respondent's claim, in respect of damages which
formed the subject
matter of the appellant's counterclaim. The appellant denied
that it had repudiated the contract. In its counter-
/claim ...
16.
claim the appellant alleged that the respondent
had committed a breach of contract by wrongfully and unlawfully diverting
potential
custom or business from the appellant to Couling's company, and that
in consequence the appellant had suffered damages in an amount
of R7 800,
payment of which was claimed from the respondent. In further particulars two
instances of diversion of business were specified.
For the sake of brevity I
shall refer to them as the Liberty Box transaction and the Minarex transaction.
It was alleged that the
loss of profit suffered by the appellant in the former
in-stance was R2 500 and in the latter R5 300.
The trial Judge (VAN REENEN J) granted judg-ment in favour of the
respondent, on his claim, for payment of an amount, in respect of
March 1981, of
R1 803 (salary, R800; travelling allowance, R400; and commis-sion, R603), and of
an amount of R800 in respect of
/April ...
17.
April 1981, being damages in lieu of notice. On
the appellant's counterclaim the trial Judge decreed absolution from the
instance
in favour of the respondent. The appellant was ordered to pay the costs
involved in so far as the respondent's claims were concerned,
and each party was
ordered to pay his or its own costs in regard to the counterclaim.
In regard to the respondent's claims it was not disputed on appeal that
the respondent was correctly granted judgment in a total amount
of R1 803 in
respect of March 1981, subject only to the contentions advanced on the
appellant's behalf in respect of the counterclaim
and the possibility of set-off
operating if the trial Judge's order in that regard were to be altered to one
granting judgment on
the counterclaim in favour of the appellant. It will be
convenient to observe at this stage, however, that the respondent's entitlement
to
/the ...
18.
the amount of R1 803 had not been conceded
either in the appellant's plea or during the course of the trial. The latter
fact appears
from the heads of argument filed on behalf of the appellant and
signed by counsel who appeared for it at the trial, but who did not
appear in
this Court. Counsel who appeared for the appellant in this Court very properly
accepted the position as reflected in his
predecessor's heads of argument. I
shall revert to this point later, when dealing with the question of
costs.
In regard to the appellant's counterclaim, the trial Judge's order of
absolution was based solely on the ground that - as he found
- the appellant had
not proved that it had sustained any damage as a result of the respondent's
breach of contract. The issue to
which most of the evidence at the trial was
directed, viz whether or not the respondent had committed a breach
/of ...
19.
of contract as alleged by the appellant, was
firmly resolved in favour of the appellant by the trial Judge, who said the
following
in his judgment:
"I now turn to the defendant's counter-claim, which is for damages based
on the plaintiff's averred dereliction of duty. I find it
unnecessary to deal
with the factual allegations in detail. I am satisfied that the defendant has
established that the plaintiff
was in breach of the duty he owed to the
defendant. I need but refer to the evidence given by Mr. T. du Bruyn which I
accept. The
probabilities favour his version of what had happened during the
last week or so of February 1981. In addition, the plaintiff did
not impress me
as a truthful witness. He prevaricated at times and altogether made a poor
impression. I have no doubt that the plaintiff
was trying to promote the sales
of the fork-shifts which Couling had come by in the expectation that he would
benefit from these
deals, and he clearly connived at Couling's attempts to
subvert du Bruyn."
Like the learned Judge, I find it unnecessary to enter upon a discussion
of the evidence on this aspect of the case. For the purposes
of this judgment it
is sufficient
/to ...
20.
to say that, having studied the record with
care, I am quite satisfied that there is no reason at all to doubt the
correctness of
the conclusion arrived at by the trial Judge in the passage of
his judgment I have quoted.
It follows from what has been said above that two matters call for
consideration: first, whether the trial Judge's judgment in favour
of the
respondent for payment of R800 in respect of April 1981, being damages in lieu
of notice, was correct; and secondly, whether
the trial Judge was correct in
finding that the appellant had failed to prove that it had suffered damage as a
result of the respondent's
breach of contract.
As to the first point, the respondent's claim for payment of R800 in
respect of April 1981 was a claim for damages based on alleged
breach of
contract, consisting in a repudiation of the contract by the appellant.
/The ...
21.
The conduct relied upon in support of the
allegation of a repudiation was that Milligan had refused to pay the respondent
his remuneration
for March 1981 and had falsely accused him of a dereliction of
his duties. The latter allegation was obviously the main ground of
the
respondent's complaint, but it cannot be sustained in view of the trial Judge's
finding that the respondent had in fact acted
in breach of his duties towards
the appellant. In regard to the refusal to pay the respondent his remuneration
for March 1981 Milligan
testified that he explained to the respondent that
payment was being withheld as against the loss of profit that the respondent had
caused the appellant to suffer because of his unlawful conduct. The respondent
gave a different version in his evidence, but in view
of the trial Judge's
adverse credibility finding against the respondent and the incidence of the
onus
in respect of
/the ...
22.
the alleged repudiation, there is no need to
deal with it; Milligan's evidence on the point must be accepted. On that
evidence the
refusal to pay the respondent for March 1981 was part and parcel of
the appellant's stance that the respondent had committed a breach
of contract,
and the validity of that stance having been upheld by the trial Judge, it would
seem that there is something to be said
for the view that the respondent's
complaint in respect of the refusal to pay him for March 1981 also fell away.
However, it is not
necessary to pursue this line of enquiry, for there is a more
obvious ground upon which this issue can be decided.
The well-known test for deciding whether the conduct of a party to a
contract constitutes a repudiation of it which entitles the other
party, by
accepting it, to put an end to the contract, is whether such conduct, fairly
interpreted, exhibits a deliberate and
/unequivocal ...
23.
unequivocal intention no longer to be bound by
the contract. The
onus
of proving that Milligan's conduct satisfied this
test rested upon the respondent. On the evidence it is clear, in my view, that
the respondent failed to discharge this
onus
. Milligan testified that he
at no time intimated to the respondent that he was being dismissed from his
employment, or that Milligan
intended to dismiss him. This evidence was not
controverted by the respondent. But Milligan went further: he said in his
evidence
that he did not wish the respondent's employment to be terminated; his
sole object in bringing the interdict application and confronting
the respondent
with his dereliction of duties, was, as far as the respondent was concerned, to
induce the respondent "to come clean",
i e to acknowledge that he had been
involved in a wrongful association with Couling to act to the appellant's
detriment. Although
Milligan did not testify in so many words that this
/attitude ...
24.
attitude of his was conveyed to the respondent,
it is inherently probable that that would have been the case. And, indeed, this
is
borne out by passages in the res-pondent's own evidence. In the course of
being cross-examined about the events on 31 March 1981
(which was a Friday),
after service of the papers in the interdict application on him, the respondent
gave the following evidence:
"And do you recall that you asked, "Am I
fired?" No, I don't
recall that.
Didn't you say that? I can't recall
that.
And that Mr. Milligan replied to you and
said, no? Yes, in
fact, that Mr. Milli-
gan asked me to report for work at
eight-
thirty on Monday morning.
THE COURT
: I am sorry, you ...? No,
not then - not then he didn't, no.
MR. SAPIRE
: But the point is, do you re-
member at
that time? No, actually to
be quite honest, I wouldn't say - I
/couldn't ...
25.
couldn't remember it because
everything was in very much of a quandary at that time."
The clear impression left by this evidence is that the respondent was
asked by Milligan to continue in his employment, and this is
confirmed by a
later passage in his cross-examination, when he was asked whether he spoke to
Milligan between 31 March 1981 and 1
May 1981:
"Between those dates? Oh yes. Some
where between -
following the service of the
application I had spoken to Mr
Milligan, and,
in fact, he actually asked me to return
to
his employ.
He did? Yes."
In all probability this discussion took place before the respondent
purported to accept Milligan's alleged repudiation on 7 April
1981, for on this
date the respondent's attorney wrote a strongly worded letter
/to ...
26.
to Milligan, and it is most unlikely that the
latter would only thereafter have asked the respondent to return to his
employment.
On this evidence, then, the respondent failed to prove a repudiation of
the contract by Milligan, and it follows that the appeal must
be allowed in
regard to the trial Court's judgment for the respondent in the sum of R800 as
damages in lieu of notice.
I turn now to the question whether or not the appellant proved that it
had suffered damage as a result of the respondent's breach
of contract. I shall
deal first with the Minarex transaction. The appellant's case was that the
respondent sold a fork-lift belonging
to Couling to the Minarex company, while a
suitable fork-lift of the appellant's was available to be sold, thereby causing
the appellant
to suffer a loss of the
/profit ...
27.
profit it would have made on a sale of its own
fork-lift to Minarex. I agree with the trial Judge that the appellant failed to
prove
its damages in this transaction, but for entirely different reasons. (I do
not propose to deal with the reasons of the learned trial
Judge.)
When Milligan gave evidence about this transaction, he said that the
appellant's fork-lift which was available in its stock, and which
would have
suited the requirements of Minarex, represented by one Boss, was a model called
a Hyster H40H. His evidence was quite
definite and consistent in this respect,
and the figures he supplied in support of his calculation of the loss of profit
suffered
by the appellant (e g in regard to the cost of acquisition, the cost of
refurbishing, the re-sale price) were all pertinently related
to that particular
machine. Later,
/Boss ...
28.
Boss was called as a witness on the respondent's
be-half. He described the fork-lifts which he saw amongst the appellant's stock,
before he decided to buy the fork-lift belonging to Couling.
Inter alia
he saw a fork-lift that was probably a petrol machine (but not an L P gas
machine) and that he might have bought were it not for the
high price quoted for
it by the respondent, and also another machine that was "in pieces", i e not
ready for delivery. He could give
no further detailed description of these two
machines. Thereafter Milligan was re-called by the appellant's counsel. He then
proceeded
to say that the fork-lift which was "in pieces" was actually a
diesel-powered Hyster H40H, which would not have met Boss's requirements.
The
fork-lift which was avail-able for sale and which would have suited Boss's
re-quirements perfectly, Milligan said, was a Hyster
H60H
/L P gas ...
29.
L P gas machine. He was quite
emphatic about that.
From the above summary of the evidence of Milligan it is apparent that he
was utterly confused about the identity of the fork-lift
which, on the
ap-pellant 's case, the respondent should have sold to Minarex. In view of his
later evidence regarding the H60H fork-lift,
the figures he used originally in
order to calculate the loss of profit on a sale of the H40H fork-lift cannot
serve as a basis for
assessing the appellant's loss of profit in this
transaction. The evidence as a whole is too confused and inconclusive to allow
of
any judgment being given in the appellant's favour regarding the Minarex
transaction.
The position is different in regard to the Liberty Box transaction.
Liberty Box was in the pro-cess of buying a particular fork-lift
of the
appellant's, which had in fact already been delivered. The
/respondent ...
30.
respondent, by means which need not
be detailed, wrongfully caused that sale to fall through and instead sold to
Liberty Box a fork-lift
belonging to Couling. The appellant's machine was
returned to its stock, where it remained still when the trial was heard. There
is no difficulty with regard to the identity of this machine. Milligan in his
evidence supplied figures of the cost of acquisition,
the cost of refurbishing
and the sale price, which were not challenged, and which showed that the
appellant suffered a loss of profit
in this transaction amounting to R1 899,84
(allowing for the commission that would have been earned by the respondent if
the sale
had been allowed to go through).
The trial Judge disallowed the appellant's claim for damages in respect
of the Liberty Box transaction on the sole grounds that the
appellant was still
in possession of the fork-lift in question and that
/there ...
31.
there was no evidence that the
machine had since depreciated in value or that it could not be sold. With
respect to the learned Judge,
I have no doubt that this approach was unsound. On
the facts of this case, the criterion of market value is not appropriate in
considering
the appellant's claim for damages. It was clearly established by
Milligan's evidence that fork-lifts of the kind in question were
freely
available in the market for the purposes both of acquisition and of re-sale by
the appellant. Buying and selling at a profit
was the essence of the appellant's
business. Clearly it was in the contemplation of both the appellant and the
respondent that if
the latter committed a breach of contract by frustrating the
sale of a fork-lift in stock the appellant would suffer a loss of profit,
and
for that loss the respondent is liable to compensate the appellant. It is no
answer to the appellant's claim that it has the
fork-lift available
/for ...
32.
for sale to another prospective customer at the same profit, for
ex
hypothesi
, if the sale to Liberty Box had gone through, the appellant would
have obtained another machine for sale to another customer, thus
obtaining a
profit in both transactions instead of one only.
It follows, therefore, that judgment should have been granted in favour
of the appellant on its counterclaim in the sum of R1 899,84,
and that the
appeal must be allowed in this respect also.
In the result the orders issued by the trial Judge will be altered so
that the respondent will be granted judgment on the main claim
in an amount of
R1 803,00 and the appellant will be granted judgment on the counterclaim in an
amount of R1 899,84, in effect leaving
a balance of R96,84 payable by the
respondent to the appellant. This result will, of
/course ...
33.
course, carry with it the costs of
the appeal.
It remains to deal with the costs of the ac-tion in the Court
a
quo
. Counsel for the appellant argued that those costs should be awarded to
the ap-pellant if - as has now been found - it succeeded
in establishing a
balance in his favour. I do not agree with this argument. Counsel's argument
would have carried weight if the appellant
had in its plea con-ceded its
indebtedness to the respondent in the sum of R1 803 and prayed merely that that
sum should be set off
against the amount for which judgment would be granted on
the counterclaim. But this was not the tenor of the appellant's plea. As
pointed
out earlier, the respondent's entitlement to the amount of R1 803 was not
conceded in the plea nor even during the course
of the trial. The respondent was
accordingly compelled to pursue the enforcement of his right to the amount
of
/R1 803 ...
34.
R1 803 throughout the trial.
Moreover, the appellant succeeded in respect of one part of its counterclaim
only, while failing in respect
of the other. In all these circumstances I do not
consider that the mere fact that it succeeded in establishing a balance in its
favour entitles the appellant to an award of the costs of the action. Taking
into account all the circumstances, I am of the view
that a fair order would be
that each party is to bear his or its own costs of the action.
The order of the Court is as follows:
1.
The application
for condonation of the late filing of the record is granted. The appellant is to
bear the costs occasioned
thereby.
2.
The appeal is
allowed with costs.
/3. ...
35.
3. The orders made by the Court
a quo
are set aside and there is
substituted therefor the following orders:
(a) Judgment is granted in favour of
the plaintiff on the
main claim
for payment of the sum of R1 803,00.
(b) Judgment is granted in favour of
the defendant on the
counterclaim
for payment of the sum of R1 899,84.
(c) The amount mentioned in paragraph
(a) is set off against
the amount
mentioned in paragraph (b), with the
effect
that the defendant is entitled
to payment by the plaintiff of
the
balance of R96,84.
(d) The plaintiff and the defendant are
each to pay his or
its own costs of
/the ...
36.
the action.
A.S. BOTHA JA
CILLIé JA
CONCUR
SMALBERGER AJA