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[2020] ZAWCHC 92
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Kingshaven Homeowners' Association v Botha and Others (6220/2019) [2020] ZAWCHC 92; 2023 (4) SA 187 (WCC) (4 September 2020)

Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
number: 6220/2019
Before: The Hon. Mr Justice Binns-Ward
Hearing:
31 August 2020
Judgment:
4 September 2020
In
the matter between:
THE
KINGSHAVEN HOMEOWNERS’
ASSOCIATION
Applicant
and
PHILLIPUS
BOTHA
First
Respondent
THE
COMMUNITY SCHEMES OMBUD
SERVICE
Second
Respondent
THABISILE
CYLVIA DLAMINI
N.O.
Third
Respondent
JUDGMENT
(Delivered by email to the parties and release to SAFLII.)
BINNS-WARD
J:
[1]
The applicant is the Kingshaven Home
Owners’ Association.  The Association is a ‘community
scheme’, as defined
in s 1 of the Community Schemes Ombud
Service Act 9 of 2011 (‘the CSOS Act’).  It has
brought proceedings
on notice of motion under case no. 6220/2019,
in which it seeks (i) to appeal the refusal by an adjudicator in
an application
lodged by the Association in terms of the CSOS Act to
grant an order prohibiting the first respondent from parking in the
parking
bays allocated for visitors to the housing scheme;
(ii) alternatively, to have the said decision reviewed and set
aside; and
(iii) in either event, an interdict prohibiting the
first respondent from parking his vehicles, caravans, boats or
trailers
anywhere within the Kingshaven estate other than in his
garages, or in front of his garages and wholly within the boundary of
his
property.
[2]
The first respondent is a homeowner in the
Kingshaven estate, and as such he is automatically a member of the
Association.
[3]
The Community Schemes Ombud Service, which
is a juristic person established in terms of s 3 of the CSOS
Act, was cited as the
second respondent.  The core functions of
the Service include the promotion of good governance of community
schemes and the
provisions of a dispute resolution service under the
auspices of the Act.
[1]
[4]
The third respondent was the adjudicator to
whom an application made by the applicant, in terms of s 38 of
CSOS Act, for relief
concerning its complaint about the first
respondent’s parking habits, in alleged breach of the
homeowners’ association’s
rules, had been referred by the
local ombud, in terms of s 48 of the Act, for adjudication.
I shall hereinafter refer
to the third respondent as ‘the
adjudicator’.
[5]
The Ombud Service and the adjudicator took
no part in the proceedings in this court.  I infer that they
abide the judgment.
The first respondent opposed the
application on various grounds that I shall discuss presently.
[6]
The
statutory appeal, in terms of s 57 of the CSOS Act, was brought on
the assumption that it had been within the adjudicator’s
power
to consider and determine the relief sought by the applicant for an
order under the CSOS Act that the first respondent ‘be

prohibited from parking on visitors’ parking bays or in front
of his garage where his vehicle protrudes onto the road’.

Such an order could be obtained under the CSOS Act only if it fell
within the categories of orders listed in s 39 of the Act.

The relief sought in the alternative, by way of judicial review, was
applied for on the contrary premise that it had not been within
the
adjudicator’s jurisdiction to entertain the application under
the CSOS Act for that relief.
[7]
The
adjudicator refused the applicant’s application for an order
prohibiting the first respondent from parking in the visitor’s

bays on the ground that the order sought was not one provided for in
terms of s 39 of the CSOS Act, and therefore not one
within the
Ombud Service’s jurisdiction.  The adjudicator
nevertheless proceeded in her written decision to venture
the opinion
that the applicant association in any event did not ‘have
jurisdiction over the visitors’ parking bays’.
In the context of her primary finding that the
Ombud Service did not have jurisdiction to determine the application,
her statement
concerning the Association’s jurisdiction over
the parking bays was obviously obiter.
[8]
Section 57(1) of the CSOS Act provides that
an aggrieved party may appeal against an adjudicator’s
decision, but only on ‘a
question of law’.  There
has been a difference of opinion in the reported cases about the
characterisation of such appeals.
The only significance of the
divergence of opinion is that it appears to have contributed to
conflicting decisions in the various
divisions of the High Court on
the appropriate procedure by which such appeals fall to be brought.
[9]
In
Trustees
for the Time Being of the Avenues Body Corporate v Shmaryahu and
Another
[2018] ZAWCHC 54
(10 May 2018);
2018 (4) SA 566 (WCC),
[2]
in the course of giving guidance as to the procedure by which such
appeals should be brought, I acknowledged that it is well recognised

that the word ‘appeal’ is often used indiscriminately to
refer any one of a number of what are in fact quite distinguishable

procedures, and that therefore, when treating of a statutory appeal,
one has to look at the context of the provision in question
to
ascertain the juridical character of the remedy afforded thereby.
I opined that the remedy available in terms of s 57
of the CSOS
Act is closely analogous to that which might be sought on judicial
review, and concluded that such an appeal was accordingly
one that
was ‘most comfortably’ niched within the third category
of appeals identified in
Tikly v
Johannes
1963 (2) SA 588
(T), which was
not the same as suggesting an exact fit.
[10]
A subsequent judgment of the KwaZulu-Natal
Division concurred in that categorisation; see
Durdoc
Centre Body Corporate v Singh
[2019]
ZAKZPHC 29 (13 May
2019); 2019 (6) SA 45
(KZP) in para 15 (per
Steyn J, Madondo DJP concurring).  The court in
Durdoc
Centre
also endorsed the view expressed
in
Shmaryahu
that
such appeals should be brought on notice of motion.
[11]
The third category of appeal in
Tikly
was defined by Trollip J in these terms: ‘
a
review, that is a limited rehearing with or without additional
evidence or information to determine, not whether the decision
under
appeal was correct or not, but whether the arbiters had exercised
their powers and discretion honestly and properly
’.
In my view, the ‘
proper
’
exercise of administrative powers includes whether they have been
exercised within the ambit of the arbiters’ authority
or in
accordance with the applicable law.  Those were classical
grounds for judicial review in administrative law in the
pre-Constitutional era and they have now been codified in s 6 of
the Promotion of Administrative Act 3 of 2000 (‘PAJA’);

see s 6(2)(
a
)(i)
and (ii), (
b
),
(
c
), (
d
),
(
e
)(i),
(
f
)(i),
(
f
)(ii)(bb)
and (
i
).
Hence my niching of the appeal in the third category.
[12]
My purpose in undertaking some sort of
classification exercise in
Shmaryahu
was to reason my conclusion that such appeals should be brought on
notice of motion in a manner analogous to applications for judicial

review.  The exercise was not undertaken with a view to
determining on which side, if any, of the orthodox dividing line
between appeal and review a s 57 appeal fell to be
classified.
[3]
Many statutory appeals allowed to the High Court from administrative
decisions do not lend themselves to that sort of classification

because they frequently involve a remedy that contains a mixture, or
overlap, of classical appeal and review elements.  Therein,

indeed, lies the very predicate for the third category of ‘appeal’
in the
Tikly
typology, viz. an ‘appeal’ that involves a ‘review’.
[13]
In
Stenersen
and Tulleken Administration CC v Linton Park Body Corporate and
Another
[2019] ZAGPJHC 387 (24 October
2019); 2020 (1) SA 651
(GJ), a full court of the Gauteng Division
adopted a different view.  The court in
Stenersen
was concerned with exactly the same issue that I had been in the
relevant part of the judgment in
Shmaryahu
,
viz. determining the appropriate procedure by which appeals in
terms of s 57 should be prosecuted in the High Court.
It
held that such appeals are of the second category described in
Tikly
viz. ‘
an appeal in the ordinary
strict sense, that is, a complete rehearing of, and fresh
determination on the merits of the matter with
or without additional
evidence or information on which the decision under appeal was given,
and in which the only determination
is whether that decision was
right or wrong’
.  The court,
perforce, qualified its adoption of that classification by adding the
proviso that appeals in terms of s 57
are limited to appeals on
questions of law.  In my respectful opinion, the proviso
attached to the characterisation actually
serves to highlight why
such appeals are
not
,
in essential respects, of the second type.  This is because,
being limited to questions of law, they do
not
involve a rehearing of and fresh determination of the merits (as
distinct from just the result), and they would
not
allow for the introduction of
additional evidence or factual information.
[14]
The judgment in
Stenersen
records (at para 26) that subsequent to
the judgment of this court in
Shmaryahu
the Chief Ombud issued a practice directive
advising that appeals in terms of s 57 of the CSOS Act should be
brought on notice
of motion.  The directive purported to lay
down that that procedure should be followed ‘
until
such time that the Full Bench of the High Court has made a
determination or order on the process to be followed for appeals

under section 57 of the CSOS Act
’.
The directive suggests that the Chief Ombud may have been under a
misapprehension that a determination on the applicable
procedure by a
full bench of the Gauteng Division - which it would appear he must
have been anticipating when the practice note
was issued - would
prevail nationally, even if it differed from the procedures adopted
by other divisions of the High Court elsewhere
in the country.
[4]
That was, of course, misdirected.  The guidance provided in
Shmaryahu
continues in effect in the Western Cape Division and, it would seem,
also at least in KwaZulu-Natal.  Sitting as a single
judge, I am
bound by the judgment in
Shmaryahu
in this Division, but it might be useful if I proceed nevertheless to
explain why the judgment in
Stenersen
has not persuaded me that what was held in
Shmaryahu
concerning the appropriate procedure merits revision.
[15]
On reflection, I think there is little
profit in the categorisation debate, and it was perhaps unfortunate
that I sparked it, with
reference to
Tikly
,
when I wrote the judgment in
Shmaryahu
.
I do not read Trollip J’s judgment in
Tikly
as having been intended by the learned judge to provide an exhaustive
taxonomy,
[5]
and it does not deal at all with the appropriate procedures by which
the different types of appeal should be brought.  Where
not
expressly provided for by the enabling statute, the appropriate form
for the bringing to court of a statutory appeal is a matter
to be
regulated by the courts with an eye to practicality.
[16]
What has given rise to the procedural debate concerning s 57(1)
is the absence of any statutory prescription in respect
of the form
or procedure, in or by which, the appeal therein provided for is to
be brought before court.  In
Shmaryahu
, I plumped for the
application procedure.  In consequence, appeals in terms of s 57
brought in this Division fall to
be brought in the same way,
procedurally, as various other statutory appeals are, such as those
in terms of s 47(9)(e) of
the Customs and Excise Act 91 of 1964
for instance.
[6]
[17]
In
Stenersen
by contrast, apparently predicated on the full court’s
categorisation of the appeal provided for in s 57 as of the
second category in
Tikly
,
it was determined that such appeals brought in Gauteng should be
brought ‘by way of notice of appeal where the grounds of
appeal
are set out succinctly’, and not on notice of motion.
According to the procedure adopted in Gauteng, the notice
of appeal
has to be served on the Ombud Service and the adjudicator, who must
be cited as respondents, as well as on the other
parties to the
proceedings before the adjudicator.  But the procedure does not
provide for how, or by when, or in what manner,
such parties are to
respond should they wish to oppose the appeal.  As I understand
it, the full court’s judgment proceeds
on the apprehension that
a s 57 appeal can only entail argument on neatly isolated
questions of law to be deduced from the
succinctly stated grounds of
appeal.
[18]
It has frequently been acknowledged in the
past by eminent judges seized of appeals limited to questions of law
that it can often
be difficult to distinguish the factual questions
from the legal ones in a case.  The observations of Lord Parker
of Waddington
Farmer v Cotton’s
Trustee
1915 AC 922; 6 TC 590,
[7]
are frequently cited in this regard.
[8]
Whilst it seems clear that when a statutory right of appeal is
provided against an administrative decision and the ambit
thereof is
limited in terms only to ‘questions of law’, a
revisitation by the appellate tribunal of the initial arbiter’s

finding of facts is not contemplated, that is a far cry, however,
from accepting that questions of law can be decided in isolation
from
the facts.
[19]
In
Farmer v Cotton’s Trustee
, the legislation provided
for the form in which the relevant appeals only on grounds of law
were to be brought; viz. on a stated
case.  It is evident from
the speeches given by the members of the Appellate Committee that the
framing of the stated case
in that matter, which no doubt would have
been in comparable form to a notice of appeal succinctly stating the
grounds for it,
yet also still directed at highlighting the relevant
factual underpinnings, could give rise to problems.  Thus, Earl
Loreburn
remarked, at p. 600 of the Tax Case Reports, ‘
I
desire to say that when cases are stated for the opinion of a Court
of Law it is very much to be desired that the point of law
should be
clearly stated together with the decision upon it arrived at by the
inferior Court. Otherwise it may prove difficult
for a Court of Law
to distinguish between conclusions of law and conclusions of fact.
’
The procedure laid down in
Stenersen
does not, in terms,
provide for the distillation of the ‘question of law’; as
I understand it, it contemplates rather
that the appellant set out
the grounds upon which it contends that the adjudicator’s
decision erred in law.
[9]
[20]
Lord Parker’s remarks in
Farmer v Cotton’s
Trustee
were uttered
in the context of an assumption that the initial arbiter had made all
the pertinent findings of fact necessary for
a consideration of the
question of law.  It is very conceivable, however, that a
situation might arise where the initial arbiter has not made a
finding on relevant facts that had been established on the evidence

and subsequently became pertinent to the question of law put in issue
on appeal.  It is by no means uncommon for a tribunal
to arrive
at a decision without finding it necessary to make findings on all
the factual evidence that has been adduced before
it.  It might
be necessary in such matters, if the evidence on which findings have
not been made is alleged to be germane
to the question of law relied
on in the appeal, for the appellate tribunal itself to consider and
make a finding on such facts
for the purpose of its task.  The
alternative would be to remit the issue of fact to the initial
arbiter for it to make the
finding of fact considered necessary to
inform the determination of the question of law.  The
identification of such matters
of fact for the purposes of an appeal
of the sort provided in terms of s 57, and the motivation of
their relevance for the
determination of the question of law
contended for, would, in my view, be better done through an exchange
of affidavits than in
a notice of appeal stating shortly the grounds
upon which it is brought.
[21] A
proper determination on a question of law might also in a given case
even be hindered or blocked entirely by a lacuna in
the found facts
and in such a matter the question of whether or not the found facts
disclose such a lacuna might also legitimately
be a matter for
argument.  I give this as another example of a situation in
which a close examination of the findings on the
merits, which might
only be properly understood upon a consideration of the underpinning
evidence, might be necessary, and where
there would be no question of
a neat isolation of a question of law.  And then there are those
cases where the issue is ‘a
mixed question of law and fact’;
cf. the quotation by Gardiner AJP from the judgment of
Warrington LJ in
Lievers v Barber, Walker Co., Ltd
131
L.T. 12
in
Rex v Sawkins
1925 CPD 338
at 342.  In my
view, advancing and distilling the relevant points of law in such
circumstances is better facilitated by way
of an exchange of
affidavits than on the basis of a notice of appeal setting forth the
grounds of appeal.
[22]
On the other hand, if the question of law in the given case can be
simply and succinctly stated, as might frequently happen,
proceedings
on notice of motion do not have to be voluminous.  In such a
case the supporting papers should be short and to
the point, and the
answer might appropriately be given in accordance with rule 6(5)(d)
of the Uniform Rules, and not on affidavit.
[23]
The motion procedure has the added advantage that it informs the
respondent parties what they must do if they wish to oppose
the
appeal, and by when they should do so.  As mentioned, the
procedure laid down in
Stenersen
does not.
[24] A
further practical difficulty that is liable to arise in the
application of the procedure adopted by the Gauteng court is
that in
a case like the one currently before this court, in which the
decision in question was subject to an application for judicial

review, alternatively an appeal in terms of s 57, dichotomous
proceedings would need to be instituted, even if they would
in all
probability be heard together.  There would have to be a notice
of motion in the review and a notice of appeal in the
appeal.
Two discrete procedures would have to be followed in tandem, probably
culminating in an application for consolidation.
As the current
case has demonstrated, the cumbersomeness entailed in that does not
arise in terms of the procedure followed in
this Division.
[25]
The notion that such cases will arise quite commonly is not
far-fetched because the right of appeal in terms of s 57 is
not
exclusive of the right of an aggrieved party also to impugn the
adjudicator’s decision on review grounds that might not
involve
‘questions of law’ within the meaning of that term in
s 57.
[10]
A party might be well advised in many cases to adopt a
double-barrelled approach because of the difficulty not infrequently

encountered in defining whether or not a particular complaint entails
only ‘a question of law’ within the meaning of
that term
in the statute, which might itself be a matter in contention.
[26] I
shall direct the Chief Registrar of the court to forward a copy of
this judgment to the Chief Ombud of the second respondent
for her
information and guidance.
[27]
Moving onto the substance of the present
case:  The facts that gave rise to the application to the Ombud
Service were straightforward
and not in dispute.  They involved
the repeated breach by the first respondent of one of the applicant
association’s
conduct rules.  The conduct rules were duly
made by the trustees of the Association in terms of clause 17 of the
applicant’s
constitution and approved by the members in general
meeting.
[28]
Rule 10 regulates parking within the
Kingshaven estate.  It provides as follows:
1.
Residents must park their motor vehicles,
motor bikes, caravans, boats or trailers inside, or in front of their
garages within the
boundaries of their property.
2.
Visitors
must park on the property of the residents they visit or use any of
the available visitors’ parking bays on the estate.
3.
Motor
vehicles are not permitted to park on any garden verge, or in the
street in front of any house, unless there is a demarcated
parking
bay available.
4.
A
caravan, trailer, or other goods in a garage may not cause a
resident’s motor vehicle to be parked in a visitor's parking

Bay.
5.
The
trustees may have a vehicle towed away, at the risk and expense of
the property owner or owner of the vehicle, if it is parked
in an
unauthorized location on the estate.
[29]
The first respondent’s property on
the estate has the amenity of a double garage.  He has three
vehicles, however, and
the household equipment that he stores in his
garages means that there is space to park only one of the vehicles
inside them.
Furthermore, the driveway area in front of his
garages is not deep enough to accommodate a parked car, or at least
one with the
dimensions of his vehicles, within the boundary of his
property.  In consequence, one of the vehicles is frequently
parked
in front of the house so that part of it juts out into the
street and the other is parked in one of the parking bays on the
estate
that are reserved for visitors.  The respondent’s
conduct in these respects is in obvious (and undisputed) breach of

subrules 10.1 and 10.4.
[30]
The first respondent’s persistent
contravention of the rules of conduct occasioned complaints by
certain of the members of
the applicant association to the trustees.
The trustees are authorised by the association’s constitution
to investigate
such complaints and take appropriate action to enforce
compliance with the constitution and any rules made in terms of it.
[31]
The trustees’ endeavours to persuade
the first respondent to comply with the rules were fruitless.
They were unwilling
to agree to his proposal that he should be
permitted to purchase or rent a visitors’ bay.  The first
respondent maintained
that it was commonplace for residents on the
estate to park vehicles in front of their garages in such a manner
that the adjacent
roadways were encroached upon to a greater or
lesser extent.  This was because most of the properties have
very short driveways.
He put in evidence a great number of
photographs of vehicles parked at various places on the estate, some
of which bore out his
evidence concerning the parking of other
vehicles in a manner that resulted in some encroachment on the
roadways.  He also
contended that his use of his garage space
for purposes apart from housing his vehicles accorded with a
widespread practice by
other homeowners to keep fridges and washing
machines in their garages.  He took numerous photographs over a
number of days
to show that there were several cars that were parked
regularly in the visitors’ parking bays, some of them
consistently
in the same bay.  It is not clear, however, to whom
these vehicles belonged.  It may be that some of them belonged
to
persons who visited the estate regularly.  I accept though
that it seems likely that some of them probably belong to persons

living on the estate.
[32]
As a settlement could not be attained, the
applicant lodged the application with the Ombud Service described in
the opening paragraphs
of this judgment.  It was referred by the
local ombud for adjudication before the third respondent, who
refused, on the grounds
described in paragraph [7]
above,
to grant the interdictory relief sought.
[33]
In the proceedings before this court it was
common cause that the interdict sought by the applicant was not
within the range of
remedies for which orders may be sought in terms
of the CSOS Act, and therefore beyond the competence of the
adjudicator to grant.
That had also been the first respondent’s
contention before the adjudicator.  As mentioned, the reasons
given by the
adjudicator for her decision, which was delivered on 15
March 2019,
[11]
indicate that she was aware that that was the case.  It had
therefore been unnecessary for her to have gone so far as to state
in
her decision that the regulation of the use of the visitors’
parking bays was not within the applicant’s jurisdiction.

It is apparent, however, that in voicing that opinion, the
adjudicator had been influenced by the reasoning in
Singh
and Another v Mount Edgecombe Country Club Estate Management
Association Two (RF) (NPC) and Others
[2017] ZAKZPHC 48 (17 November 2017);
[2018] 1 All SA 279
(KZP);
2018
(1) SA 615
(KZP), in which a full court of the KwaZulu-Natal Division
of the High Court held that the imposition of road rules by a
homeowners’
association in respect of the roads within the
Mount Edgecombe Country Club Estate encroached impermissibly upon the
remit of the
relevant authorities responsible for traffic regulation
and policing on public roads in terms of the
National Road Traffic
Act 93 of 1996
and the
Criminal Procedure Act 51 of 1977
.  The
Supreme Court of Appeal, recognising that the roads within the estate
were not public roads, subsequently reversed the
full court’s
decision; see
Mount Edgecombe Country
Club Estate Management Association II (RF) NPC v Singh and Others
[2019] ZASCA 30
(28 March
2019); 2019 (4) SA 471
(SCA).
[34]
It is clear then that the adjudicator was
right to have refused to make an order that was not provided for in
s 39 of the Act
(cf.
Shmaryahu
at
para 17, and
Evergreen Property
Investments (Pty) Ltd v Messershmidt
[2018] ZAGPPHC 786 (10 October 2018); 2019 (3) SA 481 (GP)).
[12]
It was within her powers to refuse the relief sought by the
applicant; see s 54(1)(a) of the CSOS Act.  As remarked
in
Shmaryahu
(in note 19
[13]
),
‘[d]espite the fact that the ombud is meant to confirm that the
Service has jurisdiction before a matter is referred to
an
adjudicator,
[14]
it cannot have been the legislative intention that an adjudicator to
whom an application was referred would be required to proceed
to make
an order in favour of an applicant in the face of a challenge by the
respondent to the adjudicator’s jurisdiction
that the
adjudicator considered to be well-founded’.  The
adjudicator would, however, be acting within her powers were
she to
refuse such an application.  The challenge to the adjudicator’s
order refusing the application on the ground
that it was beyond her
competence to make it is therefore without merit.
[35]
The challenge to her finding that the
regulation of the use of the visitors’ parking bays was not
within the applicant’s
jurisdiction also cannot be sustained
because the finding did not constitute a decision.  In appeals,
the court is concerned
only with the correctness of the result, not
the means by which it was reached except to the extent to which they
demonstrate the
correctness or incorrectness of the result.
Similarly, judicial review in terms of PAJA is directed only at
‘administrative
action’ (which can include the failure by
an administrator to make a decision), not, substantively at least, at
the administrator’s
reasons for making the decision that
constitutes the administrative action.  In the current case it
was the decision to refuse
the Association’s application that
constituted the administrative action by the adjudicator.  The
legal propriety of
the adjudicator’s decision to refuse the
application is not challenged by the applicant, only the correctness
of the opinion
that she expressed in passing (i.e. obiter) that the
Association did not have jurisdiction over the visitors’
parking bays.
The expression of opinion did not constitute
‘administrative action’ as defined in s 1 of PAJA,
and is not a matter
susceptible to judicial review.
[36]
The first respondent’s counsel was
accordingly correct in his contention that the appeal, alternatively,
application for judicial
review, brought by the applicant was an
unnecessary and purposeless distraction and that the only question of
substance for determination
is the interdict application.  The
applicant’s counsel conceded as much, and explained that
appeal/review relief had
been sought only because the applicant had
been uncertain when the current proceedings were instituted what the
first respondent’s
attitude was going to be concerning the
effect of the adjudicator’s decision on its application for an
interdict in these
proceedings.  As the application for relief
on appeal, alternatively review, was not withdrawn, an order will be
made formally
dismissing the applicant’s appeal in terms of
s 57 of the CSOS Act.
[37]
The first respondent opposed the
applicant’s prayer for interdictory relief on three grounds:
(i) that the trustees had not
resolved to institute proceedings for
interdictory relief; (ii) that the Association had waived
compliance with the relevant
parking rules and (iii) that the
trustees were applying the rules in a discriminatory manner and could
not be permitted to
do so.
[38]
Any enquiry whether the application was
competently instituted by the Association must proceed from the terms
of its constitution.
Clause 5.1 of the constitution records
that the Association ‘has legal personality and is capable of
suing and being sued
in its own name’.  Clause 24 of the
constitution provides for the election of trustees as a matter to be
undertaken
at every annual general meeting of the Association.
In terms of clause 15 the trustees are empowered to deal with any
breach
by a member of the constitution or rules of the Association by
various enforcement measures including the institution of legal
proceedings. Clause 17 reiterates that the duties and powers of the
trustees include ‘instituting and defending actions in
the name
of the association and to appoint legal representatives for such
purpose’.  There is no doubting therefore
that it was
within the powers of the trustees to cause the proceedings to be
instituted in the Association’s name, and I
did not understand
the first respondent to dispute that.  The issue then is whether
the trustees did resolve that the proceedings
be instituted.
That is a question of fact.
[39]
The first respondent contends that the
evidence does not establish the fact.  He takes that point on
the basis of the content
of the minutes of various resolutions relied
upon by the chairperson of the trustees, who was the deponent to the
founding affidavit.
The respondent says that the wording of
these resolutions does not support the allegation that the trustees
authorised the institution
of the application by the Association.
The wording of the resolutions is inept, and if considered purely
literally, without
reference to the context, might well not support
the fact that the trustees had resolved to institute the
proceedings.  The
context, however, makes it clear that,
regardless of the wording of their resolutions, the trustees did
resolve to institute the
proceedings for all of the relief sought in
the notice of motion.
[40]
So, for example, the minutes of a trustees’
meeting on 8 May 2019, more than three weeks after the institution of
the current
proceedings records in item 8(a): ‘The HOA lodged
an appeal with the High Court which had to be done within the
allotted
30-day timeframe [clearly a reference to the timeframe
referred to in s 57(2) of the CSOS].  Notice of Motion has
been
served.’  That this item pertained to the current
matter is supported by the content of item 8(b): ‘The Trustees

resolved approval for the transcription of the CSOS adjudication
hearing with associated costs’.  That those items were

related to the current proceedings was further borne out an item in
the minutes of the trustees’ meeting on 10 April 2019:

‘The CSOS Adjudication Order was sent to all homeowners with a
cover note on email dated 2
nd
April 2019.  The Judgement of the Supreme Court of Appeal (SCA)
in the Mount Edgecombe case dated 28 March 2019 was debated
at length
and the Trustees resolved that legal opinion should be obtained.
The 30-day time limit for an appeal must be borne
in mind.’
On 16 April 2019, the estate manager, who appears to attend the
trustees’ meetings, sent an email
to all homeowners from the
email address
kingshaventrsutees@gmail.com
stating ‘Subsequent to the email that was distributed on 2
April 2019 regarding the CSOS Adjudication Order, the Trustee

Committee became aware of the Judgement that was handed down on 28
March 2019 by the Supreme Court of Appeal (Mt Edgecombe High
Court
Judgement had been overturned).  The Trustee Committee resolved
that an appeal would be lodged with the High Court.’
The
current proceedings, which included the prayer for interdictory
relief, had been instituted on the previous day, 15 April 2019.
[41]
After the first respondent had raised the
matter of the authorisation of the institution of proceedings in his
answering papers,
all of the trustees and the estate manager executed
a document, dated 22 August 2019, recording that it had been
resolved
on 14 August 2019 that ‘to the extent necessary, and
in the event of it being found that the ‘trustees’
resolutions
of [13 February 2018 and 10 April 2019, upon which
the deponent to the applicant’s founding affidavit had
purported
to rely] were in any way ineffective, the steps outlined
above [which included the bringing of an appeal against the
adjudicator’s
decision, the instruction of Biccari Bolo Mariano
Inc. (BBM) attorneys and counsel to prosecute the appeal and the
authorisation
of the chairman of board of trustees to depose to the
required affidavits] and taken by the Committee, Japie Botha [the
deponent
to the founding affidavit], and/or BBM be now ratified and
confirmed.’
[42]
The first respondent’s counsel
argued, however, that the intended act of ratification evidenced by
the trustees’ resolution
of 10 August 2019 pertained, according
to its tenor, only to the appeal in terms of s 57 of the CSOS
Act and did not cover
the other relief sought in the application, and
in particular the interdictory relief.  I do not agree.
Counsel’s
argument is premised on too narrow and literalist a
reading of the resolution.  In the given context it is plain, in
my judgment,
that the trustees were ratifying, to the extent
necessary, the proceedings that had been instituted on the
Association’s
behalf by BBM attorneys.
[43]
The matter was put beyond debate, in my
view, when, on 5 September 2019, the first respondent delivered a
notice in terms of rule
7 of the Uniform Rules challenging the
authority of BBM to act on behalf of the Association in the
proceedings.  The notice
appears to have been delivered out of
time, but it elicited a response in the form of a power of attorney
signed by the chairman
of the board of trustees authorising BBM
attorneys to prosecute the proceedings under case no. 6220/2019.
Although the
power of attorney speaks of ‘the prosecution of
the appeal’, it is obvious that that was an expression intended
to
embrace all of the relief sought by the Association in terms of
the notice of motion in case no. 6220/2019, which has from the outset

included the interdictory relief.  It is also clear that the
trustees and their legal representatives would have been astute
when
the proceedings were instituted that an order setting aside the
adjudicator’s order, whether on appeal or review, would
go
limping if it were not accompanied by an order directing the first
respondent to stop breaching the parking rules, which was
the remedy
sought from the adjudicator.
[15]
[44]
For all these reasons, I am satisfied that
the institution of the proceedings by or on behalf of the Association
for all of the
relief sought in terms of the notice of motion was
duly authorised or has been ratified.
[45]
Turning now to the first respondent’s
contention that the Association has waived compliance with the
parking rules.
In my view there is no merit in it.
[46]
Mr
Brink
,
who appeared of counsel for the applicant, submitted that the rules
were not capable of waiver.  I am inclined to agree;
certainly
not without compliance by the trustees with a number of prescribed
requirements.  The constitution and rules create
a contractual
relationship between the Association and its members.
[16]
The instruments are intended to operate not only between the
Association and each subscribing member on a mutual basis, but
they
also constitute a pact between each subscribing member and the
Association for the benefit of all the other subscribing members.

That much is clearly evident from their objects and provisions which
are directed at the common good of all the homeowners and
at
regulating their conduct
inter se
.
By subscribing to the constitution, each member accepts the
benefits stipulated in his or her favour by the other subscribing

members.  One of those benefits is that there shall be rules of
conduct to give substance to the objectives and rights promised
and
conferred by the constitution (clause 6.3) and that the other members
will be required to comply with them (clause 8.1) and
that any
breaches thereof will be called to account (clause 15).
[47]
The constitution gives the trustees the
power to make rules of conduct, but, unsurprisingly, it does not give
them the power to
waive compliance with them.  On the contrary,
a proper reading of the constitution puts them under a duty to
enforce the rules.
They can rescind or vary the rules, but any
such decision to rescind or vary them would have to be adopted by a
majority of the
trustees in meeting or unanimously by round robin.
The decision would become effective only upon approval by the members
in general meeting.  One can waive a right, but not a duty.
[48]
The exercise of the trustees’ power
to enforce the rules falls to be seen as an exercise by the
Association, through its appointed
agents, of the Association’s
contractual rights.  It has not been established that such right
was waived in this case.
Whether one conceives of waiver as a
bilateral concept in the nature of a contract, as contended for by
some,
[17]
or as a unilateral manifestation of the waiving party’s
intention as reasonably deduced by the benefitted party from the

former’s words or conduct, I do not think that the first
respondent, as a party to contractual framework established by the

constitution and rules, could reasonably have perceived in the
circumstances that any laxity in enforcement constituted a waiver
of
the parking rules.
[18]
A reasonable person in his position would have appreciated that an
apparent abandonment by the trustees of the Association’s
right
to enforce the rules could not be effective without the support of at
least 75% of the members of the Association in general
meeting.
He put up no evidence to support a finding that it did.  There
is on the contrary evidence that the trustees
had in fact been
enforcing the parking rules against other homeowners.
[19]
An acknowledgment by the trustees of the need for them to apply
enforcement measures more conscientiously than they had been
doing
did not on any approach make out a waiver by their principal; it
actually contradicted any notion of abandonment.  Establishing

waiver based on conduct is always a challenging exercise for ‘[t]he
conduct from which waiver is inferred, so it has frequently
been
stated, must be unequivocal, that is to say, consistent with no other
hypothesis.’
[20]
[49]
Mr
White
,
who appeared for the first respondent, sought support for his
client’s defence of waiver in the decision in
Buffelsdrift
Game Reserve Owner's Association v Holkom and Others
[2014]
ZAGPPHC 474 (7 July 2014), in which the court dismissed an
application by a homeowners’ association for an interdict

enforcing a provision in its constitution prohibiting the keeping of
pets.  I agree with Mr
Brink
that
Buffelsdrift
is distinguishable on the facts.  It also seems to me on careful
consideration that the interdict prayed for in that matter
was
refused in the exercise of the judge’s discretion with regard
to the equities, rather than on the basis of an established
waiver of
rights by the homeowners’ association.  It is in any event
not clear why the judge even reached that point,
having concluded
earlier in the judgment (whether correctly or not is not important
for current purposes
[21]
)
that the applicant had not demonstrated that the impugned conduct was
occasioning it cognisable harm or prejudice.
[50]
It therefore remains only to consider the
first respondent’s contention that the trustees were applying
the rules in a discriminatory
manner and could not be permitted to do
so.
[51]
Mr
White
relied in support of his argument on this leg of the case on the
oft-quoted passage from the judgment of Corbett J (Van Winsen J

concurring) in
ESE Financial Services
(Pty) Ltd v Cramer
1973 (2) SA 805
(C),
at 809F, to the effect that ‘
[w]here
a plaintiff sues
to enforce performance of
an obligation which is conditional upon performance by himself of a
reciprocal obligation owed to the
defendant, then the performance by
him of this latter obligation (or, in cases where they are not
consecutive, the tender of such
performance) is a necessary
prerequisite of his right to sue and should be pleaded by him.
Conversely in such a case the defendant
may raise as a defence, known
as the
exceptio non adimpleti
contractus
, the fact that the plaintiff
has failed to perform, or, in the appropriate case, tender
performance of, his own reciprocal obligation
(see generally De Wet
and Yeats,
Kontraktereg
pp.138-9 and cases there in cited, to which may be added
Myburgh
v Central Motor Works
supra
[1968 (4)
SA 864
(T)];
Anastasopoulos v Gelderblom
supra
[1970 (2) SA 631
(N)]’.
[52]
The passage relied upon by the first
respondent’s counsel self-evidently pertains only in a context
of reciprocity of obligations,
a concept equated by Corbett J to
what De Wet and Yeats had termed ‘
wederkerigheid
van verbintenisse
’.  I do
not think that the enforcement by Association of its parking rules
was subject to the principle of reciprocity.
An irrationally
discriminatory system of enforcement might well in a given case
justify a decision by the court in a matter like
this to refuse to
grant the interdictory relief in the exercise of its equitable
discretion, but that is another matter.
It was no doubt with
those considerations in mind that Swain J uttered the dictum in
Riverland Resort Shareblock (Pty) Ltd v
Letschert
[2012] ZAKZDHC 101 (25 April
2012) at para 30 relied upon by the applicant’s counsel that
‘... if due regard is had
to the fact that the relationship
arising out of the agreement between the applicant [shareblock
company] and individual shareblock
owners is contractual, a failure
to enforce a breach by the applicant, against another shareblock
owner, can have no bearing upon
its election to enforce such a breach
against the respondent’.
[22]
[53]
In the circumstances I am satisfied that
the applicant has made out a case for the interdictory relief that it
seeks, and that there
is no merit in any of the grounds upon which
the first respondent sought to oppose it.  The applicant has
therefore achieved
substantial success in the application and is
entitled to a costs order in its favour.
[54]
The following order is made:
1.
The
applicant’s appeal in terms of s 57 of the Community
Schemes Ombud Service Act 9 of 2011 is dismissed.
2.
The
first respondent is hereby prohibited from parking his vehicles,
motor bikes, caravans, boats or trailers anywhere within the

Kingshaven estate other than in his garages or outside his house
wholly within the boundary of his property.
3.
The
first respondent is ordered to pay the applicant’s costs of
suit.
4.
The
Chief Registrar is directed to forward a copy of this judgment to the
Chief Ombud of the Community Schemes Ombud Service for
information
and guidance.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicant’s
counsel:

A.A. Brink
Applicant’s
attorneys:

Biccari Bollo Mariano Inc.
Cape Town
First
respondent’s counsel:
J.P. White
First
respondent’s attorneys:
Mostert & Bosman Attorneys
Bellville
[1]
Section 4 of the Act.
[2]
The judgment was written by me, with Langa AJ
concurring.
[3]
That there are different types of ‘review’,
just as there are different types of ‘appeal’, was
acknowledged
in
Kham and Others v
Electoral Commission and Others
[2015]
ZACC 37
(30 November
2015); 2016 (2) BCLR 157
(CC);
2016 (2) SA 338
(CC), at para 41.
[4]
The chief ombud is enjoined, in terms of s 36
of the CSOS Act, to ‘issue practice directives with regard to
any matter
pertaining to the operation of the Service’.
That responsibility obviously does not extend to prescribing the
procedure
by which appeal proceedings in terms of s 57 fall to
be instituted in the High Court.  The regulation of the courts’

processes and procedures lies within their own inherent power, as
entrenched by s 173 of the Constitution.
[5]
So, for example, in
National
Credit Regulator v Lewis Stores (Pty) Ltd and Another
[2019] ZASCA 190
(13 December
2019); 2020 (2) SA 390
(SCA);
[2020] 2 All SA 31
(SCA), in para 52, Wallis JA referred to the
Tikly
categorisation as giving rise to three possibilities ‘broadly
speaking’.
[6]
Section 47(9)(e) provides: ‘
An
appeal against any such determination
[by the Commissioner in respect of the payment of duty or the rate
of duty applicable]
shall lie to the
division of the High Court of South Africa having jurisdiction to
hear appeals in the area wherein the determination
was made, or the
goods in question were entered for home consumption.
’
[7]
The Official Tax Case Reports report of the
judgment may be accessed online at
http://www.bailii.org/uk/cases/UKHL/1915/TC_6_590.html

.
[8]
See, for example,
Platt
v Commissioner for Inland Revenue
1922
AD 42
at 49,
R v Lusu
1953 (2) SA 484
(A),
S v Petro Louise
Enterprises (Pty) Ltd
1978 (1) SA 271
(T),
[1978] 1 All SA 571
, at 277 (SALR).  In
S
v Petro Louise Enterprises
at p.279
(SALR) Botha J (as he then was) remarked that ‘[i]
n
many cases it is a problem of considerable difficulty to decide
whether a question is one of fact or one of law’
.
The learned judge pointed to ‘
the
infinite variety of circumstances in the difficulty can aris
e’
and thought it appropriate to ‘
steer
clear of any attempt to formulate a general rule or principle for
resolving such a problem
’.
[9]
Stenersen
, in
para 43-44.
[10]
Cf.
Turley Manor
Body Corporate v Pillay and Others
[2020] ZAGPJHC 190 (6 March 2020).  In that matter, the
respondent contended that the application for review was incompetent

because the applicant should have proceeded by way of appeal in
terms of s 57.  Notwithstanding that the matters in
issue
were susceptible to determination as questions of law, the court
(Unterhalter J) held (that the right to challenge
an
adjudicator’s decision by appeal in terms of s 57 was not
inconsistent with an aggrieved party’s right to
impugn the
decision by way of judicial review.  The learned judge
characterised the respective remedies as complementary,
not mutually
exclusionary.  I respectfully agree.
[11]
The decision is misdated 12 March 2018.
[12]
The omission of any provision in s 39 of the
CSOS for an order to compel a member of a community scheme to comply
with the
constitution or rules of the scheme appears to have been an
obvious oversight by the legislature.
[13]
Where the reference to s 53 of CSOS Act
should have been to s 54.
[14]
Section 42(a) of the CSOS Act.
[15]
That much was expressly acknowledged by the
deponent to the founding affidavit, who averred that if the
adjudicator’s refusal
of the application in terms of the CSOS
Act were set aside, the applicant would be at ‘square one’,
and still in
need of interdictory relief.
[16]
Cf. e.g.
Mount
Edgecombe
(SCA) supra, at para 19.
[17]
See e.g. GB Bradfield,
Christie’s
Law of Contract in South Africa
7ed
(LexisNexis) at 12.2 (p. 504 ff).
[18]
Cf.
Road Accident
Fund v Mothupi
[2003] 3 All SA 181(A)
;
2000 (4) SA 38
(SCA) at para 15-17 and the other authority cited
there.  I am conscious that the case in
Mothupi
involved the waiver of a right conferred in law, rather than by
contract, but the principles involved are the same as far as
the
present discussion is concerned.
[19]
The Associations records showed that 38 fines and
warnings had been issued to multiple homeowners in respect of
contraventions
of rule 10 in the period between June 2017 and May
2019.
[20]
Mothupi
supra,
para 19 (per Nienaber JA), citing
Hepner
v Roodepoort-Maraisburg Town Co
uncil
1962 (4) SA 772
(A) at 778D-779A and
Borstlap
v Spangenberg en andere
1974 (3) SA
695
(A) at 704F-H.
[21]
A breach of a contractual obligation is
ordinarily accepted as constituting relevant injury or harm when it
comes to assessing
whether the requirements for a mandatory
interdict enforcing compliance have been satisfied; cf.
Foize
Africa (Pty) Ltd v Foize Beheer BV and Others
[2012] ZASCA 123
(20 September
2012); 2013 (3) SA 91
(SCA);
[2012] 4
All SA 387
(SCA), at para 32.
[22]
Cf. also
Bushwillow
Park Home Owners v Fernandes and others
[2015] ZAGPJHC 250 (23 October 2015) at para 15.