Kruger Bros & Wasserman v Ruskin

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and CG Maasdorp JA
• Judgment Date: 12 February 1918
• Hearing Date: 11 February 1918
• Court: Appellate Division

Innes, C.J.:

To this application for relief under Rule 12 a preliminary objection is taken, that the judgment sought to be challenged is one as to costs only. If that objection is sound it disposes of the matter; because in that case the leave of the trial Judge would be essential (Act 1 of 1911, sec. 3 (b)), and the appeal would lie not to this Court but to the Provincial Division (South Africa Act, 1909, sec. 103). When the petition was last before us the papers were incomplete; but as they stood we felt unable to overrule the preliminary objection. While refusing to grant relief at that stage, however, the door was not closed against a renewal of the application. We have now before us the pleadings and the judgment as well as the reasons. The claim was for an account of goods sold on respondent's behalf, for debatement, and for payment of the balance. The applicants contested their liability - Wasserman because he had discharged it, and the Krugers because they had been no parties to the receipt of goods for disposal. Wasserman claimed in reconvention a small balance which he alleged to be in his favour, and a small amount by way of commission. The trial Court came to the conclusion that they were all bound to account, but found that any balance due had, after the commencement of the litigation, been extinguished by a transaction equivalent to payment, and the following order was made: "The court grants judgment for the plaintiff (respondent) for costs as against the defendants jointly and severally." No reference was made to the claim in reconvention, the Judge considering that that fell away in view of his findings in the main dispute. The question whether an appeal lies, as of right, in this case depends upon the construction of certain statutory provisions taken over, from the English Judicature Act of 1873, sec. 49. Those provisions were imported into South Africa by sec. 15 of the Cape Administration of Justice Act, 1879; they were adopted in Proclamation 14 of 1902 (Transvaal), sec. 37, and were incorporated in sec. 103 of: the South Africa Act, and finally in sec. 3 (b) of Act 1 of 1911, which reads as follows: "No judgment or order made by consent, or as to costs only, which by law are left to the discretion of the Court, and no interlocutory order shall be subject to appeal, save by leave of the Court or Judge making the order." Before considering the effect of these words, the suggestion that the present appeal is not within their operation, because it is, in whole

Innes, C.J.

or in part, an appeal upon the claim in reconvention, may be shortly disposed of. It is clear from the papers filed that the order in convention (the Judges reasons in respect of which cover the entire...