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[2020] ZAECPEHC 1
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Ward v Body Corporate of San Paulo Scheme and Others (2127/2018) [2020] ZAECPEHC 1 (28 January 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE
NO: 2127/2018
Date
heard: 22 August 2019
Date
delivered: 28 January 2020
In
the matter between:
ELIZABETH
MARY
WARD APPLICANT
and
THE BODY CORPORATE OF
SAN
PAULO SCHEME
FIRST
RESPONDENT
ADVOCATE
DERICK BLOCK N.O.
SECOND RESPONDENT
THE COMMUNITY SCHEMES
OMBUD
SERVICES
THIRD RESPONDENT
JUDGMENT
JAJI
J:
INTRODUCTION
[1]
This is an opposed application for an appeal in
terms of section 57 of the CSOS Act which was brought by the
applicant, a certain
Elizabeth Mary ward, against the ruling and
order of the second respondent dated 16 February 2018. The applicant
seeks an order
in the following terms:
(i)
The late filing of the appeal against the ruling
of the second respondent dated 16 February 2018 be condoned;
(ii)
That an order be granted that the ruling made by
second respondent at paragraph 8.1 of the ruling, be set aside and
replaced with
the following:-
“
The applicant’s
dispute is dismissed.”
(iii)
That the relief granted by the second respondent
at paragraph 8.3 of the ruling be found to be ultra-vires and be set
aside and
replaced with the following ruling:-
“
The applicant’s
dispute is dismissed.”
(iv)
That the first respondent (and any of the other
respondents that may oppose of this application) be ordered to pay
the costs of
this application.
[2]
BACKGROUND
(i)
This appeal stems from an application to the
third respondent in terms of section 38 of the Community Schemes
Ombud Service Act,
9 of 2011 (“CSOS Act”). The above
mentioned application was as the result of complaints by the first
respondent which
necessitated referral to the third respondent who in
turn appointed second respondent as an adjudicator.
(ii)
The adjudicator determined and finalised the
matter as per the ruling and order dated 16 February 2018 (pg 46,
index B, annexure
E1).
(iii)
In this present application applicant challenges
the validity of the adjudicator’s ruling and raised numerous
challenges in
addition to those in the notice of motion. For
instance, at page 16, para 40, she contends that “. . .
recordal is clearly
incorrect . . .” At page 17, paras 41, 42
and 43 “para 1.1.1 of the ruling is similarly factually
incorrect”,
para 42 “. . . para 1.1.8 of the ruling is
also factually incorrect. . .” at para 43 “apart from
ruling at para
1.1.7, the remaining facts recorded by second
respondent are either not in accordance with the case submitted. . .”
Applicant
contended at para 49 that the reference to the
sub-paragraphs showed that the second respondent failed to come to
grips with issues
at hand. At para 50, it is alleged that the order
is “confusing and nonsensical.” It is alleged that the
applicant
will not be able to perform in terms of para 50.1.
(iv)
Appellant’s notice of motion dated 14 June
2018, filed almost four months late. The reasons for the delay are
dealt with from
paragraphs 67 – 77 of the founding affidavit.
(v)
Applicant further alleged that the
non-availability of the record of proceedings and the conduct of
third respondent by not availing
the record contributed to the delay.
In any event, the applicant contended that she is required to deal
with grounds of appeal
in the founding affidavit. She blames the
stance of the third respondent culminating to filing of the
application without the record.
(vi)
Applicant averred that on receipt of record, she
may file further affidavit and that the relief granted by the
adjudicator was
ultra-vires
.
The applicant claims that there were only three issues referred to
the adjudicator for resolution viz:-
-
Whether aluminium frames installed pursuant to
consent by first respondent’s trustees comply with consent and
scheme rules;
-
Whether the applicant removed water meter and
re-routed water meter without consent of first respondent’s
trustees;
-
Whether pillars erected in respect of extension
to balcony constitute deviation of approval by first respondent’s
trustees
of the extension.
(vii)
The complaints against the applicant in the
adjudicated matter appeared fully in annexure A4 – A5. The
relief asked in the
complaint appears in annexure A6 (basically
requesting compliance with scheme standards, replacing the aluminium
frames with the
same frames as installed throughout the scheme.) In
annexure A9, very importantly applicant is referred to certain Du
Preez Builders
to assist with the installation as they had previously
assisted Unit 13 with installation.
(viii)
On the e-mail dated 04 January 2017, permission
to replace wooden sliding doors with aluminium was given to the
applicant subject
to certain conditions. On 31 May 2017 (annexure
A11) e-mail was dispatched to the applicant informing her that she
did not comply
with the permission granted to her. She apparently
installed bronze aluminium instead of cherry. She was put on terms
(30 days)
to replace aluminium with cherry.
(ix)
Annexure A-12, dated 03 May 2017, is a response
from the applicant to the effect that “colours will all match
once the build
is finished.” Once again in annexure A-15, email
dated 15 May 2017, applicant was advised that she did not comply with
permission
granted to her and was requested to replace the aluminium
with cherry within 30 days. Applicant was referred to scheme rules,
procedure
to be followed if owner was unable to obtain requirements.
The contractor was available to supply correct aluminium frames.
Applicant
was further requested to stop replacing the windows until
situation was resolved. She was advised by Jane Britz, from the
trustees,
that the proposal to aluminium conversion, closest match
was a cherry wood grain powder coated finish which was voted
unanimously
by all 21 owners.
(x)
On 24 May 2017, the applicant was informed that
the trustees resolved not to authorise installation of frames and
deviate from appearance
of others already installed as per the
requirements. Applicant replied on 26 May 2017, annexure A-16, that
once finished, windows
and doors will comply in terms of Rule 33 of
Management Rules. Applicant was further informed regarding deviation
and alterations
permitted. It was made clear to her that no deviation
would be allowed without written consent from trustees. This was put
to her
attention by the managing agents of the trustees.
(xi)
The matter was unresolved and ultimately referred
to adjudication. Section 38 requirements were met and application as
per s 48
(CSOS Act). The matter was set down on 28 January 2018. The
applicant was represented by Mr Ian Ward. The summary of the dispute
and the relief sought appears at pgs 48, annexure E3, E4, E5 and
relief sought annexure E6.
[3]
RESPONDENTS’
CASE (MS WARD) BEFORE THE ADJUDICATOR (SUMMARY)
(i)
In summary, she referred to Clause 33 of the
Management Rules of the Body Corporate (See E6 – E8). The
aforementioned rules
relate to written approval for minor
improvements and that the approval must be subject to written
conditions and that the rules
are applied fairly.
[4]
(i)
The outcome and the findings appear on the last paragraph of E11
(at
page 56). “
It is
therefore my view that the applicant (1
st
respondent herein) proved on a balance of probability that it acted
in a manner consistent with being prudent and reasonable, and
using
sound business judgment and avoiding arbitrary or capricious actions
by ensuring that the rules of the Body Corporate were
applied fairly
and that, in terms of PMR 68(1)(iv), the harmonious appearance of the
San Paulo sectional tittle scheme was not
affected in any way.”
(ii)
At page 57 (E 12) in consideration of submissions
and evidence adduced, the adjudicator (2
nd
respondent herein) concluded as follows:
“
After careful
consideration of the facts and the evidence adduced and the
probability of the said evidence, I had come to the conclusion
that
the minor improvements effected by the respondent (applicant herein)
was deviating from the rules and therefore in contravention
of Clause
33 of the Management Rules of San Paulo Body Corporate. It is also
undisputed that the respondent failed to adhere to
Clause 2(2) of the
prescribed Management Rules of the San Paulo Body Corporate by not
taking all reasonable steps to ensure compliance
with the conduct of
Rules of San Paulo Body Corporate.”
(iii)
At page 6 (E 15), the adjudicator dealt with the
responsibility of the body corporate in respect of water services.
“
If the by-laws
of the municipality determine that the payment of water services is
the Body Corporate’s responsibility, which
appears to be the
case in the current dispute, the body corporate is liable and
accountable to the municipality for the payment
of such services. The
insistence by the San Paulo Body Corporate that the respondent
appoint an independent plumber to assess that
the water supply to the
respondent’s unit is metered, is therefore consistent with the
duty of the Body Corporate to act
in the best interest of all owners
of the Body Corporate. It could therefore not be asserted (as the
respondent contended) that
the applicant misconstrued or overstepped
its authority to impose a rule emanating from its conduct rules.”
(iv)
The adjudicators referred to the matter of
Wilds
Home Owners Association and others v Van Eeden and others
case
no. 53643/09 [2011] ZAGPPHC 101 (25 May 2011) Murphy J ruled that the
amending of Rules should be guarded against, i.e. “
.
. . A court accordingly should be loath to re-write the bargain
struck by the members with each other, especially where the impetus
to do so is at the instance of a minority who think the terms of the
agreement are unfair or no longer serve their interests.”
Schalk Leon Baard and another v Koro
Creek Home Owners’ Association and another
case no: 28281/2012 North Gauteng Division, Pretoria delivered on
14/02/2012 at para 36.
(v)
It is so that the adjudicator referred to case
law in all fours with the present dispute.
(
Vanilla
Street Home Owners Association v Ismail and another
(A345/2013)
[2014] ZAWCHC 25
(5 March 2014) at para 22 and 24).
(vi)
At page 63 (E 18) the order by the adjudicators
took into account that in consideration of the evidence adduced,
“
respondent could not prove on a
probability that the respondent: (a) took all reasonable steps to
ensure compliance with the conduct
of Rules of San Paulo Body
Corporate; (b) acted in a manner furthering the objectives and
interests of the Body Corporate as a
member of the said Body
Corporate and to observe all rules so made by the Body Corporate, (c)
was not aware of the provisions of
Clause 33 of the prescribed
management rules of San Paulo Sectional Tittle Scheme. . .”
At the end, adjudication dealt with enforcement of the order and the
right to appeal. It was in the right to appeal that a party
may
appeal “
only on a question of law”
(my emphasis).
Appeal also to be lodged
within 30 days after date of delivery of the adjudicator.
[5]
OPPOSITION TO THE APPLICATION
The
first respondent raised three points in
limine
:- i.e.
(i)
Non-compliance with Rule 53 of the Uniform Rules.
In terms of Rule 53(4), a party wishing to oppose the relief sought
must do so
within fifteen (15) court days. Further to the above in
terms of Rule 53(1) (b), the adjudicator (chair of dispute) is
required
to file a record of proceedings related to decisions that
are sought to be appealed and set aside. No such record of
proceedings
is filed herein. It is thus impossible to respond to the
relief sought. The record thus forms the basis of the second
respondent’s
decision and order.
(ii)
The second point in
limine
relates to non-compliance with s 57(1) of CSOS requiring an appeal
against the order sought to be appealed within 30 days after
delivery
of the order. The order was delivered on 20 February 2018 to the
applicant. It is the case of the 1
st
respondent that section 57 is peremptory and CSOS makes no provision
for condonation for the late filing of an appeal.
(iii)
The third point in
limine
is that after receipt of the adjudication order, Ms Ward (applicant)
complied with part of the order, and (namely) the appointment
of the
independent plumber, to verify the water supply. She therefore waived
any right that she may have had to appeal the adjudication
order. She
was fully aware of her rights in terms of CSOS, as this was mentioned
in the adjudication order. In terms of the principle
of pre-emption,
no litigant can appeal an adjudication order if he/she has partly
complied with the order. The litigant must make
up its mind. He/she
cannot equivocate by acquiescence and later decide to appeal such
order.
(iv)
Main affidavit (applicant)
-
She appreciated the necessity of the record, before she could proceed
with
any possible appeal (ad para 7 – 13 thereof);
-
The lack of record in terms of Rule 53 makes it impossible to deal
with allegations contained herein. The test is what was placed before
the second respondent at the hearing. The above is relevant
herein.
The allegations by the applicant go beyond what was placed before
second respondent (ad para 14 – 64);
-
(Ad para 67 – 77) thereof, applicant sought (“the
record”)
clearly appreciating the need for record before
proceeding with her application. Subject to the points in
limine
,
the respondent denied that the applicant was entitled to the relief
which she sought and that the main application should be dismissed
with costs.
(v)
A question of law
The first respondent
submitted that the appeal should be on a question of law not on
merits. The applicant’s complaint is
not contemplated by
section 57(1) of CSOS. On this point alone, Ms Ward’s
application stands to be dismissed.
(vi)
The adjudication order, which was e-mailed to the
applicant on 20 February 2018, has not been complied with.
[6]
ANSWERING AFFIDAVIT (APPLICANT)
(i)
(Ad para 4 – 9) The applicant contend that
the nature of the application is a review of adjudicator’s
decision but not
a review of proceedings within the meaning of
Uniform Rules. Therefore applicant was not required to comply with
Rule 53.
(ii)
The Rule is operational in favour of the
applicant and the applicant has waived that benefit voluntarily.
(iii)
(Ad para 10 – 12) The applicant admitted
receiving the adjudication order on 20 February 2018 and that section
57(1) of the
CSOS Act requires an appeal against ruling to be lodged
within thirty (30) days after delivery of the ruling. The applicant
further
accepts that CSOS makes no provision for condonation but the
High Court enjoys inherent jurisdiction to condone late filing when
taking into account the interests of justice. The applicant prayed
that the court exercise its discretion in her favour and grant
condonation for the late filing.
(iv)
The applicant admitted compliance with part of
the order but denied that it constituted waiver of rights to appeal.
She contended
that the proper reading of annexure “EMW5”,
intended that an appeal would proceed. The date of “EMW5”
is
01 March 2018.
(v)
(Ad Para 24.5) The applicant contended that she
was not required to obtain record of proceedings before appeal. She
confirmed that
she did not comply with the adjudication order and
submitted that she is justified to do so as the order stands to be
overturned
on appeal.
(vi)
The applicant claimed that the adjudicator was
incompetent to make the order as it fell beyond his jurisdiction. The
relief that
he/she makes must be in the scope of s 38(3). The relief
granted is therefore
ultra-vires
and does not fall within s 39 of CSOS Act.
[7]
APPLICABLE LEGAL PRINCIPLE
(i)
The applicant raised issues which the first
respondent contend that they go beyond what was placed before the
second respondent
(adjudicator).
(ii)
How does the court resolve this dispute of fact?
For instance, the applicant’s founding affidavit raised
numerous dispute
of facts which cannot be resolved on the papers (see
paras 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 and 60).
Without
the record, it is virtually impossible to assess the merits
of the applicant’s argument. The averment of the applicant at
paragraph 10 of the founding affidavit does not assist either. (“.
. . Aforesaid proceedings are nonsensical as I am required
to deal
with the full grounds for my appeal in this founding affidavit”)
argued the applicant.
(iii)
The applicant fails to properly address the point
taken by first respondent that the appeal
is
not on a question of law
as required by s 57
of CSOS Act.
A fact is the event that has led
to litigation while law refers to actual rules that decide how the
facts will be viewed by court.
If facts of a case fall within the law
or regulation, it is a question of fact. Interpretation and scope of
law on the other hand
is a question of law.
Clearly, the matter which is raised on appeal by applicant is not on
a point of law but based on factual findings.
(iv)
Regarding
condonation,
the applicant averred that the court will exercise its discretion in
applicant’s favour because of interests of justice.
The law
regarding condonations is well settled. Before the court exercises
its discretion, the full explanation of the delay is
relevant in
condonation application. The other important factor on condonation is
the prospects of success.
(v)
EXPLANATION OF DELAY
There is no explanation
proffered herein. In annexure “EMW5” dated 01 March 2018,
applicant clearly stated that she
was consulting with legal
consultants in March already. Why the application is only brought on
14 June 2018 is not explained. It
is trite that the whole period of
delay should be explained.
(vi)
Strangely, the applicant tried to suggest that
the delay in getting the record contributed to the delay in
proceeding with the appeal.
That cannot be so because in its own
papers, the applicant did not need the record because it claimed that
it was not proceeding
with Rule 53 review which is in any event,
operated in favour of the applicant. The applicant decided to waive
that benefit as
provided by Rule 53. It cannot therefore argue that
the delay in not obtaining what it did not need resulted in its delay
to proceed
with the appeal.
(vii)
PROSPECTS OF SUCCESS
The applicant’s
appeal is not on a question of law. Even if condonation is granted,
the matter ends there and there. Even
if this hurdle is overcome,
there is a dispute of fact that cannot be resolved in the papers.
There is no record to assess the
merits of the appeal.
(viii)
It is worthy to note that the averments and
allegations raised on appeal were not made during the adjudication.
The notice of set
down by the adjudicator was sent to Ian Ward dated
25 January 2018 and the certificate of non-resolution dated 17
January 2018
was also sent. The question of premature nature of the
adjudication was there already. No objection was raised before
commencement.
(ix)
The relief sought was there long before the
adjudication commenced and there was no objection that it was
“
ultra-vires
”
in nature. It seems to me that these averments were an afterthought.
“
Generally,
applications are not designed to resolve factual disputes between the
parties and are decided on common cause facts.”
(See
Plascon-Evans Paints (Tvl) Ltd. v Van
Riebeeck Paints (Pty) Ltd.
1984 (3) SA
623A
at 634-635.
(x)
Regarding condonation, the court in the matter of
Standard Bank of South Africa v Carien
Erasmus
, case no 56672/213 [2016] ZAGPPHC
126 (23 March 2016) :
Msimeki J stated as
follows at para 4:-
“
. . .
(1)
In the
absence of agreement between the parties,
the
court may upon application on notice and on good cause shown, make an
order extending or abridging any time prescribed by these
rules or by
an order of court fixed by an order
extending
or abridging any time for doing any act or taking any step in
connection with any proceedings of any nature whatsoever
upon such
terms as to it seems meet."
Clearly,
no such application has been launched in the present matter.
(xi)
It is so that a court has a discretion to
grant or not grant condonation as stated above, one of the
considerations in the enquiry
is the explanation of success (
United
Plant Hire (Pty) Ltd v Hills and Others
1976
1 SA 717
(A) at 720E-F.
[8]
CONCLUSION
(i)
The objective of the Act (CSOS) is to provide a
service and the mechanism for the expeditious, informal and
cost-effective resolution
of disputes in “community schemes”.
(See
Trustees for the Time Being of the
Avenues Body Corporate v Shmaryahu and Another
(A31/2018)
[2018] ZAWCHC 54
2018 (4) SA 566
(WCC) (10 May 20185)
before Binns-Ward J (Langa AJ concurring).
(ii)
It is therefore proper to heed the Supreme Court
of Appeal
albeit
on a
different context. “To accede to the proposition in such
general terms would, I consider, open the door to the possibility
of
large numbers of appeals being brought . . ., contrary to the limited
scope of that section which I conceive the legislature
contemplated.”
It is the same with s 57 of CSOS Act, contemplating limited scope on
a question of law. To allow the proposition
by applicant would
definitely open the door to a possibility of large number of appeals.
See
Nzimande v S
[2010] ZASCA 80
;
2010 (2) SACR 517
(SCA) at paragraphs 11 – 13.
(iii)
The applicant on account of all the above failed
to make out a proper case for the relief sought.
[9]
I, therefore make the following order:
The
application is dismissed with costs
.
___________________________
N
P JAJI
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the applicant
: Adv
Mullins SC
Instructed
by
: Lawrence
Masiza & Vorster
214
Cape Road
Mill
Park
PORT
ELIZABETH
(Ref:
T. Lawrence/yv/MATT15970)
TEL:
041 373 0030
For
the respondent(s)
: Adv
Bands
Instructed
by
:
Wheeldon Rushmere &
Cole Inc
(Ref:
Mr Brody/Glyn/S21254)
C/O
Brown Braude & Vlok In.
317
Cape Road
Newton
Park
PORT
ELIZABETH