view that the infringement of the appellants' mark had not been established, this application must follow the
same fate.
Page 654 of 645 (SCA)
[24] What remains is the appeal against the costs order relating to the respondent's counterapplication. It will be
remembered that the court a quo dismissed the counterapplication with no order as to costs. The appellants'
objection against this order starts out from the premise that, as a rule, the dismissal of an application results
in a costs order against the unsuccessful applicant. That is undoubtedly so. But it is not a rule of the Medes
and Persians. In this case, the court a quo found it unnecessary to deal with the counterapplication because
it rightly regarded it as no more than a second tier defence against the main application which was dismissed
on the basis of the respondent's first tier defence. In the exercise of its discretion the court a quo then
decided that, in these circumstances, the most appropriate order would be no order as to costs. According to
a wellestablished principle, this Court will not interfere with the decision of a lower court as to costs unless it
is quite clear that some important factor escaped the attention of the lower court, or unless the discretion
exercised has not been a judicial discretion (see eg Molteno Bros v South African Railways 1936 AD 408 at 417).
In this light, I can see no basis upon which we can interfere with the exercise of the court a quo's discretion
with regard to costs.
[25] As to the costs on appeal, the respondent was at all times represented by two Counsel. Shortly before the
hearing of the appeal, its senior Counsel, however, became indisposed. That is the reason for the costs order
I propose to make. In the result:
The appeal is dismissed with costs, including the costs of two Counsel whenever employed.
(Theron, Pillay, Petse JJA and Meyer AJA concurred in the judgment of Brand JA.)
For the appellants:
D Harms instructed by Adams & Adams; Cape Town and Honey Attorneys, Bloemfontein
For the respondent:
M Ioannou (heads of argument prepared by AR SholtoDouglas S C a n d M Ioannou) instructed by MacRobert
Incorporated, Cape Town and Claude Reid, Bloemfontein