IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: 15119/2011
in the matter between:

And

APPLICATION FOR LEAVE TO CONDITIONALLY CROSS-APPEAL Iro CONDITIONAL COUNTER-APPLICATION
JUDGMENT DELIVERED ON 22 FEBRUARY 2013
YEKISO, J

[4.2.] Whether, in the determination of a question as to whether the condition contained in clause 4.1 has been fulfilled, regard has had to be had to clause 1.5 of the Funding Agreement concluded between the Department of Human Settlements of the Provincial Government, Western Cape and Bitou Municipality;
[4.3.] Costs of the application for leave to appeal be costs in the appeal.

[7] In paragraph 4 of the appellant’s notice of application for leave to appeal the following is stated:

[8] Once the application for leave to appeal was granted as indicated in
paragraph [4] of this judgment, the appellant subsequently filed its notice of appeal.
Paragraph 4 appellant’s notice of appeal reads as follows:

[9] Once the record of the appeal was prepared and delivered on the first respondent’s legal representatives it was noted that the practice note appeared to contemplate the appellant (Wavelengths) raising wider issues than those which it had been granted leave to pursue on appeal, including an order that the first respondent’s conditional counter-claim should have been dismissed.
[10] In the view of the first respondent’s legal representatives, what is stated in paragraph 4 of the appellant’s notice of appeal raised the question as to whether, notwithstanding what is stated in the appellant’s notice of appeal, it was necessary for the first respondent to have conditionally cross-appealed in respect of its conditional counter-claim. It was in the light of these considerations that it was resolved by the first respondent’s legal team to bring about what purports to be the “first respondent’s notice of application for leave to conditionally cross-appeal in respect of its conditional counterapplication” purportedly on the grounds that I would also have erred :

[10.2.] failing to grant the relief sought in that conditional counter-application with costs including the costs of two counsel.
[11] In the judgment I handed down on 26 April 2012 I did not in that judgment give an order, adverse or otherwise, against the first respondent arising from its conditional counter-application. There is accordingly no judgment or order capable of being appealed against.

[13] The appellant’s application for the declaration of the enforceability of the contract and the first respondent’s conditional counter-application were heard simultaneously. In my view, it would be a travesty of justice if, in the consideration and the determination of the merits of the appeal, regard shall not be had on the merits of the first respondent’s conditional counter-application. If this were not to happen, if the appellant were to succeed on appeal on the merits of its application, the matter would have had to be remitted for the consideration and the determination of the merits of the conditional counter-application.
[14] In my view, therefore, the interests of justice would best be served if, on the hearing of the appeal, the merits of the first respondent’s conditional counter-application were to be considered and determined. In anticipation of the acceptance of this view the order granting leave to appeal is supplemented by the addition of the following paragraph as paragraph [6.3] of the order granting leave to appeal:

The order granting leave to appeal, duly supplemented, will be as per Annexure “A” annexed hereto.

N J YEKISO, J

ANNEXURE“A”

[6.2] Whether, in the determination of a question as to whether the condition contained in clause 4.1 has been fulfilled, regard has had to be had to clause 1.5 of the Funding Agreement concluded between the Department of Human Settlements of the Provincial Government, Western Cape and Bitou Municipality;
[6.3] To the extent that the merits of the first respondent’s conditional counterapplication may have to be considered in the hearing of the proposed appeal 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
[6.4] Costs of the application for leave to appeal be costs in the appeal.