The Commissioner for the South African Revenue Service v Trend Finance (Pty) Limited and Trend Gear Enterprises (Pty) Limited

This judgment deals with the costs following an appeal and cross-appeal. A provisional costs order had been made requiring Trend to pay half of the Commissioner's costs of appeal, while Trend's cross-appeal was dismissed with costs. The Commissioner's appeal concerned: (1) an order directing him to repay amounts paid by Trend in respect of second and third consignments (R900,000 plus mora interest from 2001); and (2) an order directing him to pay all of Trend's costs in the court a quo. The Commissioner failed on the first issue but was predominantly (though not entirely) successful on the second issue. The cross-appeal concerned the first consignment and Trend was unsuccessful on it. Trend conceded the costs issue in its heads of argument on the conditional basis that the cross-appeal did not succeed.

• How should costs be apportioned on appeal where a party succeeds on one severable issue but fails on another?
• What is the appropriate costs order where an appellant achieves partial success on distinct grounds of appeal?
• Whether the provisional costs order adequately reflected the respective success of the parties on the different issues in the appeal

1. The provisional costs order was replaced with an order that the Commissioner pay three-quarters of Trend's costs of the appeal. 2. The Commissioner was ordered to pay Trend's costs of the application to vary the provisional costs order.

Where an appeal raises distinct, severable issues and the parties achieve divided success, a court may make a partial costs order in favour of the more successful party rather than making cross-orders or no order as to costs. The apportionment should reflect: (1) the relative importance and weight of the different issues (including amounts at stake); (2) the time and resources devoted to each issue; (3) the degree of success achieved by each party on the different issues; and (4) what would be fair and just in all the circumstances. An appeal court has the discretion to order an appellant to pay a portion of the respondent's costs even where the appellant achieved partial success, if the respondent's success on other severable issues was more substantial.

The court observed that where two issues carry equal weight for costs purposes, the usual practice to simplify matters is to make no order as to costs so that each party bears its own costs of appeal, though the court could order each party to pay half of the other party's costs. The court also noted that apportionment of costs on appeal can be 'beset with difficulties' but must be undertaken to achieve a just result. The judgment implicitly recognizes that conditional concessions made in heads of argument (such as Trend's concession on costs conditional on the cross-appeal not succeeding) affect the costs analysis, as the successful party still had to come to court to secure the benefit of the concession by defending against the cross-appeal.

This case is significant for establishing the approach to costs orders where an appeal involves severable issues with divided success. It demonstrates the court's discretion to apportion costs based on the relative weight and success of distinct issues, rather than applying an all-or-nothing approach. The judgment provides important guidance on how courts should exercise their discretion in complex multi-issue appeals, considering factors such as: the substantive importance of different issues (measured by amounts at stake), the time and resources devoted to each issue, and the degree of success achieved on each severable ground. It affirms that partial costs orders are appropriate where they better reflect the justice of the matter than either full costs awards or no order as to costs.