Wavelength 252 (Pty) Ltd v Bitou Municipality and Others (15119/2011) [2013] ZAWCHC 37 (22 February 2013)

Wavelength 252 (Pty) Ltd v Bitou Municipality and Others (15119/2011) [2013] ZAWCHC 37 (22 February 2013)

The court held that, although the merits of the main application and the first respondent's conditional counter-application were heard simultaneously, it did not pronounce on the conditional counter-application due to its finding in the main application. However, in the interests of justice and to avoid remittal, the court supplemented the order granting leave to appeal to direct that the first respondent may rely on the grounds set out in its conditional counter-application when opposing the appeal. The court found that the merits of the conditional counter-application should be considered and determined in the appeal proceedings. Costs of the application for leave to appeal were ordered...

Citation
[2013] ZAWCHC 37
Parties
Applicant: Wavelengths 252 (Pty) Ltd; Respondent: Bitou Municipality; Respondent: Registrar of the High Court Cape Town; Respondent: Minister of Human Settlements, Western Cape
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 February 2013
Case Number
15119/2011
Procedural Posture
Leave to Appeal / Application for Leave to Conditionally Cross Appeal Regarding Conditional Counter Application
Outcome
Order granting leave to appeal supplemented to include consideration of the first respondent's conditional counter-application in the appeal; costs of the application for leave to appeal to be costs in the appeal.
Judges
Yekiso
Legal Topics
Enforceability of Contract, Suspensive Condition, Conditional Counter Application, Leave to Appeal, Costs Order
Civil Procedure Commercial and Corporate Enforceability of Contract Suspensive Condition Conditional Counter Application Leave to Appeal Costs Order

Case Brief

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Parties

Wavelengths 252 (Pty) Ltd

Applicant

Bitou Municipality

Respondent

Registrar of the High Court Cape Town

Respondent

Minister of Human Settlements, Western Cape

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Conditionally Cross Appeal Regarding Conditional Counter Application

Legal Issues

  1. 1 Whether the suspensive condition in clause 4.1 of the sale agreement between the applicant and Bitou Municipality was fulfilled.
  2. 2 Whether clause 1.5 of the Funding Agreement between the Department of Human Settlements and Bitou Municipality is relevant to the fulfilment of the suspensive condition.
  3. 3 Whether the first respondent's conditional counter-application should be considered and determined in the appeal.

Ratio Decidendi

The court held that, although the merits of the main application and the first respondent's conditional counter-application were heard simultaneously, it did not pronounce on the conditional counter-application due to its finding in the main application. However, in the interests of justice and to avoid remittal, the court supplemented the order granting leave to appeal to direct that the first respondent may rely on the grounds set out in its conditional counter-application when opposing the appeal. The court found that the merits of the conditional counter-application should be considered and determined in the appeal proceedings. Costs of the application for leave to appeal were ordered...

Court Disposition

Order granting leave to appeal supplemented to include consideration of the first respondent's conditional counter-application in the appeal; costs of the application for leave to appeal to be costs in the appeal.

Orders

  • The order granting leave to appeal is supplemented to direct that the first respondent, in opposing the merits of the appeal, shall also rely on those grounds set out in its notice of conditional counter-application.
  • Costs of the application for leave to appeal shall be costs in the appeal.