Fripp v Gibbon & Co

• Jurisdiction: South Africa
• Judge: Lord De Villiers CJ, Solomon J, De Villiers JP, AFS Maasdorp CJ and Buchanan AJP
• Judgment Date: 08 September 1913
• Citation: 1913 AD 354
• Hearing Date: 02 September 1913
• Court: Appellate Division

Lord De Villiers, C.J.:

In appeals upon questions of costs two general principles should be observed. The first is that the Court of the first instance has a judicial discretion as to costs, and the second is that the successful party should, as a general rule, have his costs. The discretion of such Court, therefore, is not unlimited, and there are numerous cases in which courts of appeal have set

Lord De Villiers, C.J.

aside judgments as to costs where such judgments have contravened the general principle that to the successful party should be awarded his costs. A difficulty, however, often arises as to which of the parties should be regarded as the successful party, for it sometimes happens that both parties are successful upon separate and distinct issues raised in the action. In the Transvaal case, for instance, of Clarke v Bethal Co-operative Society (1911, T.P.D., p. 1152), the plaintiff had sued the defendant for two sums of £1 5s and £4 5s., the former being for subscription and entrance fee and the second for damages for loss of commission by reason of the defendant's breach of the rules of the society by having sold 200 bags of mealies otherwise than through the society. The defendant denied his liability on both claims, and in the result the plaintiff succeeded only on the first claim, but the resident magistrate of Bethal ordered the defendant to pay the costs incurred in respect of both claims. The Transvaal Provincial Division held that the two issues were separate and distinct and that the magistrate ought to have given costs in favour of the plaintiff only with regard to the first issue. He had been successful on the first issue and was held entitled to his costs connected therewith, but he had been entirely unsuccessful on the second distinct issue, and it was held not to be a proper exercise of the magistrate's discretion to saddle the defendant with the costs of an issue decided entirely in his favour. If in the present case it were clear that the defendant had been entirely successful on a distinct issue wholly unconnected with the issue upon which the plaintiff was successful, I would have been unable to support the judgment whereby the defendant was ordered to pay all the costs of the action. How then did the case stand when the magistrate had to give his decision as to costs? He had before him a claim by the plaintiff against the defendant for £65 for goods sold and delivered. Then there was a plea that the debt of £65 was extinguished by a set-off of £65, being amount due to the defendant for bookkeeping work done, and there was an "alternative plea or claim in reconvention" that should the Court hold that the debt of £65 had not been extinguished by set-off, judgment in his favour should be given for £65 for bookkeeping work done by him for the plaintiff. The magistrate found that this counterclaim for £65 was excessive, that the bookkeeping work done by the defendant should be assessed at £48, and that this counterclaim was not of sufficiently

Solomon, J.

liquidated a nature to be capable of compensation against the, plaintiff's claim. The magistrate then proceeded as follows:- "The only point outstanding was that of costs. Only one lot of costs were incurred, and plaintiff's, claim of £65 was not admitted until after issue of summons. The point, therefore, that appealed to me was: had plaintiff to pay defendant anything, or was defendant indebted to plaintiff? On the judgment, defendant had still to pay plaintiff the substantial sum of £17, and I, therefor awarded the plaintiff the costs of the action."

Can it be said that this was an improper exercise of the judicial discretion conferred on the magistrate? If it had been a judgment of a superior court, this Court would have been loth to interfere with it; and should not this Court be equally loth to disturb it, although given by an inferior court? By pleading the extinguishment of the plaintiff's claim, the defendant himself made it necessary that full evidence should be given of his claim, in order to enable the magistrate to decide whether the plaintiff's claim had been extinguished. The defendant succeeded in showing that £48, being part of his claim of £65, was owing to him; but he wholly failed in showing that any portion of the plaintiff's claim had been extinguished. If the defendant had tendered the sum of £65 claimed by the plaintiff, or had submitted to a judgment for that amount, it would have been possible to treat the claim in reconvention as an entirely distinct issue from the claim in convention. By...