Respondent is a company also carrying on business as a dealer in paints and allied substances. 3 Early in 1980 appellant instituted motion proceedings against respondent in the Cape Provincial Division, alleging that respondent was using a mark which infringed appellant's registered trade mark and also was wrongfully passing off its goods as being those of the appellant; and claiming interdicts against infringement and against passing off and consequential relief. The application was opposed by respondent, which also applied for the striking out of certain passages in a replying affidavit filed by appellant. The matter came in the first instance before VAN HEERDEN J. At the hearing appellant did not proceed with the cause of action based upon an alleged 4 passing off. Further, it was agreed between the parties that certain material in the replying affidavit should be struck out. The Court, having heard argument, granted an interdict restraining respondent from infringing appellant's trade mark, made an order for the delivery up for destruction of all goods, etc. bearing the offending mark and awarded appellant costs of suit (including the costs of two counsel), save for the costs occasioned by the application to strike out, which costs were awarded to respondent. Respondent appealed to the Full Bench of the Cape Provincial Division against the whole of this judgment and order, save for the portion relating 5 to the costs of the application to strike out. Respondent also filed an application to place certain additional evidence on affidavit before the Court, tendering at the same time to pay the wasted costs arising from the application. The Full Bench (VAN DEN HEEVER J, BAKER and SCHOCK JJ concurring) allowed the appeal with costs, save for the costs