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[2023] ZAGPJHC 387
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Northcliff Ridge Homeowners Association and Another v Swart NO and Others (004567/2022) [2023] ZAGPJHC 387 (13 April 2023)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO
: 004567/2022
DATE
: 13-04-2023
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between
NORTHCLIFF
RIDGE HOMEOWNERS ASSOCIATION & ANOTHER
Applicant
and
RETIEF
SWART N.O. & OTHERS
Respondents
Neutral Citation:
Northcliff
Ridge Homeowners Association & Another v
Mercia Avon Larry
(Case No. 4567/2022) [2023] ZAGPJHC 387 (24 April 2023)
J U D G M E N T
LEAVE TO APPEAL
STRYDOM,
J
:This is an application for leave
to appeal against this court’s judgment delivered on
10 March 2023, against the
whole judgment and the cost
order. This application was opposed on behalf of the successful
party, which I will refer to
as the respondent in this application.
Leave to appeal may only be granted where the Judge or Judges
concerned are of the
opinion that the appeal would have a reasonable
prospect of success. This court should thus consider whether
there is a reasonable
prospect of success in this matter.
It was argued on behalf of the
applicant that the court went wrong on various of its decisions and
ultimately the order. It
was argued that the respondent relied
on a set of rules, annexure FA11 to the founding affidavit, but in
reply to an allegation
by the applicant that the rules were not those
contained in annexure FA11 but rather annexure AA2 to the answering
affidavits as
Annexure AA2. Respondent then introduced a third set of
rules in reply. It was then argued that the respondent’s
case
was, as far as the applicable rules are concerned, made out in
reply.
Considering that the applicant, in the
answering affidavit, stated that there are different rules applicable
than those which were
referred to in the founding affidavit, it
called for a reply. That is when respondent introduced the
rules referred to as
annexure RA2. The court then made a factual
finding on the papers as it stood that the HOA rules attached to the
replying affidavit
were finding in fact the applicable rules.
So that was the first point raised.
It goes further, if there is a dispute
about the rules there will be a dispute, what was required and when
will there be non-compliance
with such rules. Obviously if
certain requirements are set out in one set of rules which is not
repeated in the other. This
will change the whole departure point to
consider these rules.
It was argued that another court may
differ from this court in its finding, the factual finding, which
rules would apply and following
on this whether there was
non-compliance with these rules which entitled the applicant from
withholding a clearance certificate
or not.
I am of the view that another court
may differ from my factual findings pertaining to the set of rules
which would apply, which
would then mean that another court, if it
finds that I was wrong on this aspect, will have to apply different
criteria to see whether
there was non-compliance with these rules.
In the light of this I am of the view
that there is a reasonable prospect that another court may come to a
different finding and
that being the case leave to appeal should be
granted.
The following order is made.
Leave to appeal is granted to the Full Court of this Division against
my judgment and order in
this matter, including the cost order; the
costs of this application to be costs in the appeal.
STRYDOM J
JUDGE OF THE HIGH COURT
Counsel
for 1
st
Appellant:
Adv.
E. Coleman
Instructed
by:
McCarthy
Cruywagen.
Counsel
for the Respondents:
Adv.
J.W. Steyn
Instructed
by:
Bento
Incorporated
Date of Hearing: 13 April 2023
Date of Judgment: 13 April 2023