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[2008] ZAWCHC 278
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Club Mykonos Langebaan Ltd v Langebaan Country Estate Joint Venture and Others (10278/2006) [2008] ZAWCHC 278 (30 October 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
)
Reportable
Case No: 10278/2006
DATE:
3
OCTOBER 2008
In
the matter between:
CLUB
MYKONOS LANGEBAAN LIMITED
Applicant
and
THE
LANGEBAAN COUNTRY ESTATE JOINT VENTURE
First
Respondent
OWEN
WIGGJNS (LANGEBAAN) (PTY) LTD
Second
Respondent
B
AS FOUR 3632 (PTY) LTD
Third
Respondent
THE
SALDANHA BAY MUNICIPALITY
Fourth
Respondent
THE
LANGEBAAN COUNTRY ESTATE
HOMEOWNERS
ASSOCIATION
Fifth Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
OF
TRANSPORT AND PUBLIC
WORKS,
WESTERN CAPE
Sixth
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
OF
ENVIRONMENTAL AFFAIRS
AND
DEVELOPMENT PLANNING, WESTERN CAPE
Seventh
Respondent
JUDGMENT
Leave
to Appeal
KOEN.
AJ:
I
shall continue to refer to the parties as I did in the judgment which
was delivered on 24 July 2006. On 14 August 2008 an application
for
leave to appeal was filed by the developer. This was followed by an
application dated 15 September 2008 in which the developer
sought the
variation of the order made, it being contended that the order was
ambiguous in certain respects. I have been advised
that this latter
application is not being proceeded with.
After
a date for the hearing of the application for leave to appeal had
been arranged an application was filed by the municipality
for the
variation of paragraph 70(4) and paragraph 70{5) of the order which
was made in this matter.
It
ts contended in that application that these paragraphs should be
varied in order to provide that the liability of the developer
and
the Municipality respectively, for payment of CML's costs should be
joint and several. I do not think that the order is ambiguous
in this
respect. It cannot be suggested that the developer should pay costs
incurred by CML in, for example, perusing correspondence
from, or
drafting correspondence to, the municipality's attorneys. Similarly
the municipality cannot be liable for costs incurred
by CML when its
attorneys, for example, perused correspondence from and addressed
correspondence to the developer. CML will have
to prepare two bills
of costs, one for taxation against the developer and one for taxation
against the municipality. It is the
intention of the order that two
thirds of the taxed costs in respect of each bill should be payable
by the parties liable for such
payment To the extent that certain
costs may overlap, for example counsels' fees for the day spent in
Court, there can obviously
not be a double recovery but this is an
issue for the taxing master to resolve in the exercise of his
discretion, and not one for
the Court.
In
regard to the application for leave to appeal 1 am quite satisfied
that this is a matter in which
LEAVE
TO APPEAL
ought to be
GRANTED
.
The parties have prepared a draft order by agreement between them. I
have been furnished with a copy, and I therefore make an
order in
terms of the draft which I will initial and mark "X" for
identification purposes.
KOEN,
AJ