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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, Bapsfontein, 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 commission 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 employment 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 counterclaim, 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 respondent's own evidence. In the course of being crossexamined 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. Milligan asked me to report for work at eightthirty on Monday morning.
THE COURT: I am sorry, you ...? ----not then - not then he didn't, no.
No,
MR. SAPIRE: But the point is, do you remember 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 forklift 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 behalf. 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 appellant '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 forklifts 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