Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owner's Association and Others (171/2024) [2025] ZASCA 155 (17 October 2025)

Case Note

Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owners’ Association and Others (171/2024) [2025] ZASCA 155 (17 October 2025)

Reportability

This judgment is expressly marked reportable by the Supreme Court of Appeal. It clarifies the interaction between the jurisdiction of the High Court and the dispute-resolution regime created by the Community Schemes Ombud Services Act 9 of 2011 (the CSOS Act). In particular, the court explains when litigants may elect to approach the High Court as a court of first instance rather than the Ombud, and how ordinary High-Court jurisdiction co-exists with the specialist tribunal.

The judgment is significant because it re-affirms the constitutional presumption against the ouster of High-Court jurisdiction, delineates the objective test for reasonableness when members of a community scheme refuse to amend a governing document, and anchors South African jurisprudence within comparative Australian authority. The decision will therefore serve as precedent for practitioners dealing with sectional-title and homeowners-association disputes, as well as for courts adjudicating challenges to decisions taken within community schemes.

Cases Cited

Heathrow Property Holdings No 33 CC and Others v Manhattan Place Body Corporate and Others [2021] ZAWCHC 109; [2021] 3 All SA 527 (WCC); 2022 (1) SA 211 (WCC)

Coral Island Body Corporate v Hoge [2019] ZAWCHC 58; 2019 (5) SA 158 (WCC)

Standard Bank of South Africa Ltd and Others v Thobejane and Others; Standard Bank of South Africa Ltd v Gqirana NO and Another [2021] ZASCA 92; [2021] 3 All SA 812 (SCA); 2021 (6) SA 403 (SCA)

Metcash Trading Ltd v Commissioner, South African Revenue Service and Another 2001 (1) SA 1109 (CC)

MEC for Education, KwaZulu-Natal and Others v Pillay [2007] ZACC 21; 2007 (3) BCLR 287 (CC); 2007 (2) SA 106 (CC); (2007) 28 ILJ 133 (CC)

Albrecht v Ainsworth and Others [2015] QCA 220 (Queensland Court of Appeal, Australia)

Legislation Cited

Community Schemes Ombud Services Act 9 of 2011
Land Use Planning Ordinance 15 of 1985
Constitution of the Republic of South Africa, 1996

Rules of Court Cited

No specific Uniform Rule was materially debated beyond the High Court’s ordinary motion-court powers (the rule nisi procedure was mentioned but not analysed).

HEADNOTE

Summary

The appellant developer sought declaratory and alternative relief compelling inclusion of its adjacent “garden-cottage” development (Erf 6[…]) within the definition of “Area” in the constitution of the homeowner’s association (HOA) governing the Summervale Lifestyle Estate situated on Erf 5[…]. After the HOA failed—twice—to secure the 75 % special-resolution threshold needed to amend the constitution, the developer approached the High Court.

In the High Court the application was dismissed; the court held that the refusal by a group of owners (the Venter group) to amend the constitution was objectively reasonable. The SCA dismissed the ensuing appeal. It held, first, that the High Court’s jurisdiction is not ousted by the CSOS Act, although the statute creates an alternative specialist forum. Second, on the merits, the owners’ opposition to constitutional amendment—founded on preserving the retirement-village character of Summervale, concerns about conflict of interest, and the prospect of uncompensated transfer of common property—was objectively reasonable.

Key Issues

Whether the CSOS Act deprives the High Court of first-instance jurisdiction in community-scheme disputes.

Whether opposition to a motion to amend an HOA constitution, for purposes of accommodating an adjacent development, was objectively unreasonable under s 39(4)(d) of the CSOS Act.

The proper test for reasonableness and the relevance of comparative foreign jurisprudence.

Held

1. The CSOS Act does not expressly or by necessary implication oust the inherent jurisdiction of the High Court. Litigants retain an election of forum, though costs consequences may follow abuse of that election.

2. Exceptional circumstances are not a jurisdictional prerequisite for the High Court to hear such disputes; rather, they are relevant to costs and case-management.

3. On the facts, the refusal by 32 % of owners to amend the constitution was objectively reasonable, given legitimate concerns about the retirement character of the estate, conflict of interest among trustees, the value of common property, and the availability of alternative contractual arrangements.

4. The appeal was therefore dismissed with costs, including costs of two counsel.

THE FACTS

Parch Properties 72 (Pty) Ltd purchased Erf 6[…]—contiguous to the existing Summervale Lifestyle Estate on Erf 5[…]—and developed 55 garden cottages stylistically similar to Summervale’s dwellings. Tenants of the cottages have since 2014 used Summervale’s access roads, security and communal facilities, and levies for such use were paid to the HOA.

Summervale was conceived and approved by the City of Cape Town in 2002 as a gated retirement village. Its constitution defines the “Area” as the remainder of Erf 5[…] and any subdivision thereof. Under that constitution, membership of the HOA vests automatically in registered owners of property within the Area.

In 2022 the HOA’s trustees—some of whom were directors or nominees of Parch—attempted twice to amend the constitution, first by round-robin resolution and later at an annual general meeting. Each attempt failed to acquire the required 75 % special majority. Opposition was led by elderly resident owners (the Venter group) who feared dilution of their exclusive retirement environment, uncompensated loss of common property valued at some R 60 million, and potential dominance by commercial landlords.

Parch launched motion proceedings in the Western Cape High Court seeking declarators that its land fell within the existing definition of “Area,” or alternatively an order under s 39(4)(d) of the CSOS Act declaring the refusal to amend the constitution unreasonable and substituting a resolution to include Erf 6[…].

THE ISSUES

The court had to decide, first, whether it had jurisdiction in light of the dispute-resolution scheme created by the CSOS Act. Second, it had to determine whether the opposition to constitutional amendment was unreasonable, warranting substitution of the failed motion under s 39(4)(d).

These issues turned on statutory interpretation of the CSOS Act, constitutional principles regarding access to courts, and an objective assessment of the factual matrix surrounding the HOA’s voting outcome and the nature of Summervale as a retirement estate.

ANALYSIS

The court began by surveying the CSOS Act’s objectives: to furnish an expeditious, informal and cost-effective mechanism for resolving community-scheme disputes while not expressly revoking ordinary court jurisdiction. Relying on Thobejane, Metcash and Coral Island, it reiterated the strong presumption against statutory ouster of the High Court’s powers. Nothing in the CSOS Act imposes a compulsory exclusivity clause; litigants may choose their forum, subject to potential costs sanctions for inappropriate recourse.

Turning to reasonableness, the SCA adopted the objective balancing approach articulated in Albrecht v Ainsworth. It stressed that the enquiry is not whether the minority’s vote was “correct,” but whether the opposition, in the circumstances, lacked any rational foundation. Factors considered included:

the original municipal approval framing Summervale as a retirement village;

the disjuncture between a landlord-driven rental model on Erf 6[…] and owner-occupied retirement living;

the significant value of common property to be shared without compensation;

allegations of coercion and conflict of interest among trustees supporting the amendment; and

the feasibility of contractual arrangements—such as servitudes and service levies—allowing continued shared use without altering scheme governance.

Balancing these considerations, the court was satisfied that the owners’ refusal was neither arbitrary nor capricious. It therefore declined to set aside or substitute the failed motion.

REMEDY

The SCA dismissed the appeal in its entirety. Parch Properties was ordered to pay the respondents’ costs, including the costs of two counsel, reflecting the complexity and importance of the matter. No further declaratory or substitutive relief was granted.

LEGAL PRINCIPLES

1. The CSOS Act establishes a parallel, not exclusive, dispute-resolution forum; High-Court jurisdiction persists unless explicitly ousted.

2. In community-scheme governance disputes, reasonableness of opposition under s 39(4)(d) is assessed objectively with reference to all relevant circumstances, not purely by subjective intent or majority preference.

3. A court may refuse to substitute a failed scheme motion where owners’ opposition is rationally connected to legitimate scheme interests, such as preserving the character of a retirement estate or protecting vested proprietary rights.

4. Costs remain a vital judicial tool to discourage inappropriate forum-shopping, but the existence of the CSOS Act does not per se render High-Court proceedings impermissible.

5. Comparative jurisprudence, particularly from Queensland’s Body Corporate legislation, is persuasive in interpreting South African community-scheme legislation, underscoring the shared policy objectives of affordable and harmonious communal living arrangements.