Haine v Podlashuc and Nicolson

• Jurisdiction: South Africa
• Judge: Curlewis JA, Beyers JA and De Villiers JA
• Judgment Date: 16 March 1933
• Citation: 1933 AD 104
• Hearing Date: 10 March 1933
• Court: Appellate Division

Beyers, J.A.:

Ek meen dat verlof nie toegestaan moet word nie want die betrokke bedrag van £14 ls is baie gering en die Appèlhof most verlof om te appelleer in sake oor nietige bedrae nie aanmoedig nie. Verder is dit nie wenslik dat die koste wat reeds aangegaan is in aanmerking geneem moet word nie. Die regspunt is nie van sulke substansiele belang vir een of beide partye nie dat dit die verlangde verlof om te appelleer regverdig.

DE VILLIERS, J.A., concurred.

Judgment

Curlewis, J.A.:

This is an application for leave to appeal against a decision of the Transvaal Provincial Division upholding a judgment of the magistrate of Johannesburg.

On 4th November, 1930, applicant sued a certain Nelson in the magistrate's, court of Johannesburg for £93 9s. 6d., being half of the amount alleged to be due to applicant for electrical goods sold and delivered by him to Nelson. Nelson defended the action. On 6th November applicant applied for and obtained a temporary interdict restraining Nelson from parting with the goods. On the return day the magistrate discharged the interdict with costs.

Curlewis, J.A.

Applicant appealed against this order of the magistrate and deposited £20 with the clerk of the court as security for the costs of appeal in terms of Order XXX, Rule 2 (2). On the 24th November applicant applied for an amendment of the summons against Nelson, but the magistrate refused with costs the application for amendment. Applicant appealed against this refusal of the magistrate and deposited £20 with the clerk of the court as security for the costs of such appeal. On 24th February, 1931, the appeal against the discharge of the interdict, was withdrawn by applicant, who undertook to pay the taxed costs of Nelson, and on the same day the appeal against the refusal of leave to amend was dismissed by the Transvaal Provincial Division. On 20th March, 1931, the appeal costs arising out of the application for amendment of summons were taxed in favour of Nelson at £31 6s. 4d. The action against Nelson proceeded and on 9th April judgment was given against him in favour of applicant for £11 17s. 11d., being half of the amount of £23 15s. 9d admitted by Nelson to be due to applicant. From the judgment of the magistrate it appears that some time after the commencement of the action Nelson returned the greater portion of the goods to applicant, and at the hearing there was a difference between applicant and Nelson as to the price of the goods which had not been returned; but ultimately with a view to saving time applicant agreed to accept the value stated by Nelson, viz., £23 15s. 9d., and the magistrate on the form of the summons (which claimed only half of the value of the goods supplied) held that applicant was entitled to judgment only for one-half of the value of the goods which were not returned, and accordingly gave judgment for only £11 17s. 11d.

On 10th April, 1931, the appeal court-costs arising out of the discharge of the interdict were taxed in favour of Nelson at £28 10s., and on the same day the costs of the magistrate's court action were taxed against Nelson and in favour of applicant at £51 11s. 6d. This sum of £51 11s. 6d has not been recovered by applicant from Nelson, whose whereabouts are unknown to applicant. On the same date, viz., 10th April, 1931, but prior in point of time to the taxation of the magistrate court costs against Nelson at £51 11s. 6d., Nelson ceded all his right, title and interest in and to the costs in the two appeals to the present respondents. On the 13th April the respondents uplifted the two sums

Curlewis, J.A.

of £20 each which had been lodged as security by applicant as above set out. On 14th April respondents as cessionaries sued applicant in the magistrate's court of Johannesburg for £18 4s. 9d., being the balance of the two appeal bills of costs less the, £40 uplifted and less a sum of £1 11s. 7d which had previously been paid by applicant to Nelson. Applicant defended the action and counterclaimed for £40. In the counterclaim as subsequently amended applicant alleged that the £40 had been wrongfully uplifted, and as an alternative counterclaim he relied on two agreements between the attorneys of the parties. Respondents on 21st July, 1931, withdrew their action and offered to pay the costs thereof in convention, and on 15th August respondents filed a plea to the counterclaim, denying that...