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[2023] ZAKZPHC 114
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Van Neijeren N.O and Another v Vulintaba Country Estate Homeowners Association and Others (7422/2022P) [2023] ZAKZPHC 114 (17 October 2023)
FLYNOTES:
PROPERTY – Community Schemes –
Conduct
rules
–
Change
prohibiting short-term letting of properties – When owner
purchased property such letting was allowed –
Passing of
special resolution meant that conduct rule allowing subletting
ceased to exist – Owner bound by such resolution
taken and
amendment brought about – Ruling against owner at CSOS –
Appeal dismissed – Community Schemes
Ombud Service Act 9 of
2011, s 38.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 7422/2022P
In
the matter between:
JOHANNES
VAN NEIJEREN N.O
FIRST APPELLANT
LOUIS
WINSTONE KRUGER N.O
SECOND APPELLANT
and
VULINTABA
COUNTRY ESTATE HOMEOWNERS
ASSOCIATION
FIRST RESPONDENT
THE
OMBUD OF THE COMMUNITY
SCHEMES
OMBUD SERVICE ACT
SECOND RESPONDENT
HOWARD
FELIX
THIRD RESPONDENT
JUDGMENT
Combrinck
AJ
Introduction
[1]
The appellants are the trustees of the Mediray Trust (‘the
Trust’) which
appeals in terms of section 57 of the Community
Schemes Ombud Service Act 9 of 2011 (‘the CSOS Act’)
against the decision
of the third respondent (‘the appeal’).
[2]
The third respondent adjudicated and decided the Trust’s
application which was
brought in terms of section 38(1) of the CSOS
Act. What was sought by the Trust in that application will be set out
later.
[3]
The first respondent opposes the appeal. The second respondent is
cited as an interested
party.
[4]
The Trust owns immovable property, located in the Vulintaba Country
Estate, Newcastle
(‘the estate’), which it took transfer
of on 4 March 2015.
[5]
All owners of property on the estate are members of the first
respondent, which was
constituted and governed by a Memorandum of
Incorporation introduced in 2013 (‘the 2013 MOI’). This
document empowers
the board of directors of the first respondent to
make Conduct Rules that bind the first respondent’s members.
[6]
It is not in dispute that every prospective homeowner, upon
purchasing property within
the estate, enters into a contract whereby
the owner (or prospective owner) agrees to become a member of the
first respondent and
to be bound by the rules made, and decisions
taken, by the first respondent. The Trust, like the other residents
and the first
respondent itself, is ‘bound by the rules which
have contractual force’.
[1]
[7]
When the Trust purchased the property, the 2013 MOI was in force, as
was the 2014
version of the Conduct Rules, which included a rule that
allowed for the renting or leasing of the properties owned by
members,
upon written consent first having been obtained from the
first respondent.
[8]
On 23 February 2019, at a special general meeting of the first
respondent, the 2013
MOI was amended in certain respects. These
amendments to the 2013 MOI were registered with the CIPC in 2019
bringing about what
the parties describe as the ‘2019 MOI’.
[9]
On 14 April 2021, homeowners in the estate were notified of a
decision, taken on 1
April 2021 by the board of the first respondent,
amending the Conduct Rules through the introduction of a rule that
reads:
‘
No
homeowner will be allowed to conduct and/or run any form of a bed and
breakfast service on the estate.’
[10]
It was this decision that prompted the Trust’s application in
terms of section 38 of the
CSOS Act (‘the CSOS application’).
[11]
In paragraph 2.3 of the CSOS application, the Trust sought an order
declaring that the amendment
to the Conduct Rules on 1 April 2021
does not apply to the property of the Trust and for such amendment to
be declared invalid,
unreasonable and that it must be removed. In
paragraph 2.4, it sought an order declaring that the resolution
passed at the directors’
meeting on 1 April 2021 was invalid or
not executable, and in paragraph 2.5, sought an order declaring that
the resolution passed
at the meeting held by the directors on 1 April
2021 to be void on the ground that it unreasonably interferes with
the previous
vested rights of the Trust as the owner of the property.
[12]
The third respondent ruled against the Trust and dismissed its
application, essentially finding
that the Trust’s challenge to
the 1 April 2021 amendment was without merit.
[13]
There is another development that is relevant to this appeal, which
took place after the 1 April
2021 amendment of the Conduct Rules.
[14]
In terms of a special resolution passed at an annual general meeting
(‘AGM’) of the
first respondent held on 21 August 2021,
the first respondent’s 2019 MOI was amended by the insertion of
paragraph 24.5.2
which provides:
‘
24.5.2
No member shall be allowed to use or allow any other person to use
any building on any land for a bed and breakfast facility,
overnight
short- term rental facility or to lease out such property for a
rental period less than six months, unless such owner
is allowed to
do so in terms of the approved scheme and zoning rights therein
contained.’
Additionally,
the Conduct Rules were also amended by the introduction of the same
prohibition.
[15]
This then presented a significant change and departure from the 2014
Conduct Rules which allowed
the short-term letting of properties in
the estate.
The
issues
[16]
In the appeal the Trust developed its argument as follows.
[17]
The 2013 MOI and the 2014 version of the Conduct Rules were in force
when the Trust acquired
the property which it rented out as
short-term accommodation in accordance with the provisions of the
2013 MOI and the Conduct
Rules.
[18]
The Trust argues that the notice given by the first respondent of the
special general meeting
of the first respondent to be held on 23
February 2019 did not comply with the provisions of the 2013 MOI and
section 16(1) of
the Companies Act 71 of 2008 (‘the Companies
Act’). The minutes of the meeting, moreover, recorded that it
was decided
at the meeting that the amendments to the MOI would only
be for discussion purposes and these were never properly voted on.
Consequently,
the 2013 MOI was not lawfully amended at the 23
February 2019 meeting and its provisions remained unaltered. In those
circumstances,
the amendments to the 2013 MOI registered with the
CIPC in 2019 were unlawful.
[19]
From there the argument goes that the special resolution that was
passed on 21 August 2021 was
also unlawful because there had not been
compliance with the extant provisions of the 2013 MOI.
[20]
In the final result, the MOI and the Conduct Rules were not lawfully
amended which means that
the Trust can continue the short-term
letting of its property in accordance with the 2013 MOI and Conduct
Rules. Thus, the third
respondent misdirected himself in the
dismissal of the Trust’s application and the appeal should
succeed.
[21]
Finally, the Trust argues that it acquired a vested right to let out
its property, which could
not be interfered with.
[22]
In response to the Trust’s argument, the first respondent
asserts that:
(a)
the Trust had not properly sought to challenge the validity of the
2019
MOI in the CSOS application before the third respondent, had
sought no relief in that regard in that application, and is precluded
from raising that as an issue in this appeal. This I shall refer to
as ‘the first preliminary argument’;
(b)
the issue as to the amendment of the 2013 MOI is a factual issue
which
the Trust is precluded from raising in this appeal. This I
shall refer to as ‘the second preliminary argument’;
(c)
the 2013 MOI, in any event, was lawfully amended at the special
general
meeting held on 23 February 2019, and that the 2019 MOI,
brought about by the amendment of the 2013 MOI, was lawfully
registered
with the CIPC;
(d)
the resolution, amending the 2019 MOI and Conduct Rules, was lawfully
passed at the AGM held on 21 August 2021;
(e)
the requirements of both the 2013 MOI and the 2019 MOI were complied
with
for purposes of the passing of the special resolution on 21
August 2021;
(f)
there is no merit in the Trust’s ‘vested right’
argument; and
(g)
the appeal must be dismissed.
The
third respondent’s decision
[23]
Before dealing with the first respondent’s two preliminary
arguments, the nature of the
decision taken by the third respondent
should conveniently be dealt with first.
[24]
The relief originally sought by the Trust in the CSOS application, as
indicated, related to the
1 April 2021 amendment to the Conduct
Rules. Notwithstanding subsequent developments, involving the first
respondent’s introduction
of the 2019 MOI and the subsequent
special resolution taken at the AGM on 21 August 2021, the Trust did
not amend the original
relief that it sought.
[25]
Accordingly, the third respondent determined the relief sought by the
Trust in paragraphs 2.3
to 2.5 of the CSOS application, in so doing
deciding:
‘
66.
Adjudicator finds that the applicant’s argument to set aside
the resolution of the (sic)
1 April 2021, which prevents the
applicant from operating a short term leasing/B & B business: In
terms of section 39 (3)(d),
39 (4)(c) and 39(4)(e) failing in
consideration of the Nicholl case.’
[26]
The third respondent found that
Nicholl
[2]
ventilates and eloquently explains the various points of dispute
between the parties in the application before him. In particular,
he
relied on paragraph 49 of that judgment which is to the effect that
the amendment to the Conduct Rules was reasonable and should
apply to
all residents and owners of the sectional title, which amendment a
majority voted in favour of.
[27]
By implication, the third respondent’s decision was that the
resolution of the board of
directors of the first respondent, passed
on 1 April 2021, was lawful in all respects. Unfortunately, the
reasoning underpinning
such a finding of lawfulness is absent in his
decision.
[28]
Section 57 of the CSOS Act directs that an appeal against the third
respondent’s decision
can only be brought on a question of law.
In this regard, the approach to be taken by the court in
relation
to the third respondent’s decision and in
the
adjudication of an appeal of this nature, is succinctly stated
by
the court in
Stenersen
& Tulleken Administration CC v Linton Park Body Corporate and
another
[3]
as follows:
‘
[33]
Put differently, the appeal court is limited to considering whether
the adjudicator —
[33.1] applied
the correct law;
[33.2] interpreted
the law correctly, and/or
[33.3] properly
applied the law to the facts as found by the adjudicator.
[34]
The conclusions drawn from the evidence (ie the 'findings of fact')
by the adjudicator cannot be reconsidered on appeal.
[35]
In essence, by limiting the scope of an appeal to questions of law
only, the court of appeal is only tasked with deciding whether
the
conclusions of law reached by the adjudicator were right or wrong.
This determination can only be made based on the facts in
existence
at the time the order was given, and as they appear from the record.
This demonstrates not only the need to finally resolve
disputes of
fact at adjudication level, but also the necessity of avoiding or
limiting the number of appeals brought to the High
Court, thereby
alleviating the burden of the High Court in dealing with matters of
this nature. This ensures that cases are dealt
with in an
uncomplicated and expeditious manner. To conclude otherwise would
defeat the purpose of what the CSOS Act seeks to achieve.’
[29]
I will deal elsewhere in this judgment with the conclusions of law
reached by the third respondent
in relation to the resolution of 1
April 2021 and, in doing so, will address this appeal in the light of
the above approach to
be taken.
[30]
Notably, the issues in this appeal are issues unrelated to the
resolution of 1 April 2021 and
the third respondent’s decision
in that regard. This anomaly is considered when dealing with the
preliminary arguments below.
Discussion
The
first preliminary argument: no relief sought concerning the validity
of the 2019 MOI
[31]
It is indeed so that the relief sought by the Trust in the CSOS
application did not include an
order declaring the amendments to the
2013 MOI unlawful, and from the record it appears that this issue was
not raised at the outset
in the Trust’s submissions before the
third respondent.
[32]
The Trust argues that the minutes of the special general meeting held
on 23 February 2019, first
made its appearance in the record when it
was introduced in the first respondent’s submissions submitted
to the third respondent.
Until then, the Trust had been under the
impression that the 2013 MOI was the only version and was applicable
at the time of it
bringing its application. It was not aware of the
calling of the special general meeting for 23 February 2019 and had
not had sight
of those minutes, thus no relief was sought in that
regard.
[33]
The Trust’s argument is borne out by the record.
[34]
In paragraph 4.1.8 of the CSOS application dated 8 July 2021, it
makes reference to the 2013
MOI and states ‘that no amendments
have been effected thereto’. In paragraph 4.2, reference is
further made to the
Conduct Rules which are the 2014 version and that
‘no further amendments have been made, save for the rule to
which an objection
has been raised and to which this application
relates’.
[35]
This position is further borne out in the Trust’s initial
written submissions at paragraphs
2.7 and 2.8, where it is submitted
that ‘the first time that the purported amendment of the MOI
and the rules relating to
rentals reared its head, was the purported
amendment thereof in August 2021’.
[36]
The first reference to the 2019 MOI is in the first respondent’s
submissions of 29 September
2021, at paragraph 6. In the Trust’s
response to the first respondent’s submissions dated 11 October
2021, the first
respondent’s reliance on the alleged 2019 MOI
is contested and it is again reiterated that the only MOI is the 2013
MOI.
[37]
The minutes of the special general meeting of 23 February 2019 is
first mentioned and put up
in the first respondent’s final
submissions. In the Trust’s replying submissions it again
challenges the lawfulness
of the amendment of the 2013 MOI and again
contends that reference may only be made to the 2013 MOI. Paragraph
11 of those submissions
records specifically that the procedure set
forth in clause 6.3 thereof has not be complied with and
consequently, the resolution
passed on 21 August 2021 is invalid.
[38]
These circumstances adequately explain why no relief was sought by
the Trust, at the outset,
in relation to the 2019 MOI and I am
satisfied that the Trust cannot be faulted in that regard.
[39]
The validity of the 2013 MOI and whether or not it was lawfully
amended was addressed by both
the Trust and the first respondent in
their submissions to the third respondent. As the provisions of the
MOI determine whether
or not the resolution taken on 1 April 2021 was
valid, the amendment to the MOI, in my view, was a live issue before
the third
respondent which he was required to consider in arriving at
his decision.
[40]
He, however, did not consider the issue. In this regard, section
50
(c)
of the CSOS Act enjoins
the third respondent to consider the relevance of all evidence when
investigating the application.
[4]
The
second preliminary argument: the amendment of the 2013 MOI is a
factual issue
[41]
Section 57 of the CSOS Act, as indicated, directs that an appeal
against an adjudicator’s
decision can only be brought on a
question of law.
[42]
Trollip J, in
Tikly
and others v Johannes NO and others
[5]
determined
that
appeals
can fall in one of three different categories:
‘
The
word “appeal” can have different connotations. In so far
as is relevant to these proceedings it may mean:
(i) an appeal
in the wide sense, that is, a complete re-hearing of, and fresh
determination on the merits of the matter
with or without additional
evidence or information . . .;
(ii) an
appeal in the ordinary strict sense, that is, a re-hearing on the
merits but limited to the 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 . . .;
(iii) a
review, that is, a limited re-hearing 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 . . .’
[6]
[43]
There are divergent views on the category within which section 57
appeals fall, a debate that
I, for reasons that will become apparent,
need not enter into for purposes of this matter.
[7]
[44]
In support of its argument that the amendment to the 2013 MOI,
although a factual issue, is one
that can be determined on appeal,
the Trust has placed reliance on various authorities.
[8]
It argues that the third respondent had not considered the evidence
pertaining to the purported amendment of 2013 MOI, made no
factual
finding in that regard and that this court can make that finding, if
deemed necessary, in order to determine the question
of law relied
upon by the Trust in its appeal.
[9]
[45]
I am in agreement with the Trust’s argument that I can, for
purposes of determining if
the amendment of the 2013 MOI was lawful
or not, make findings of fact, as my findings would, in circumstances
where the third
respondent has not come to any conclusions on the
evidence that relates to this issue, not amount to a reconsideration
of existing
findings of fact.
[46]
It is accordingly open to me to make findings of fact in regard to
the notice given in respect
of the special general meeting which was
held on 23 February 2019 and in respect of the resolutions taken at
the meeting.
[47]
It is not in dispute that sufficient days’ notice was given in
respect of the special general
meeting to be held on 23 February 2019
and that the minutes of that meeting are the only memorial of what
was resolved there.
[48]
The notice reflects that the only item on the agenda was the
amendments to the MOI, with discussion
to take place between 9h00 and
10h00 and voting to take place at 10h00. It can accordingly not be
disputed that voting on the amendments
to the MOI was intended to
take place.
[49]
The minutes deal with the amendment of the 2013 MOI by, inter alia,
the deletion of clause 6.3
and the introduction of a new clause 35.
It is common cause between the Trust and the first respondent that
the minute is the only
evidence available and records what transpired
at the meeting in relation to the amendment of the 2013 MOI.
[50]
That evidence informs if there has been compliance with the 2013 MOI
and section 16(1) of the
Companies Act. Such compliance or
non-compliance determines the lawfulness of the amendments to the
MOI, which is then a question
of law.
[51]
That being so, the second preliminary argument raised by the first
respondent is disposed of.
Amendment
of the 2013 MOI
[52]
Clause 6.3 of the 2013 MOI provides as follows:
‘
6.3
Constitutional
General Meeting
The
association shall be entitled to convene a Constitutional General
Meeting (“CGM”) for purposes of effecting or,
where
applicable, confirming any amendment, addition or deletion to:
6.3.1
the MOI; and/or
6.3.2
any Rules made pursuant to the provisions of clause 11.6; and/or
6.3.3
any previously passed Special Resolution.’
[53]
Notice of a special general meeting was given to the members of the
first respondent on 24 May
2018, recording the one item on the agenda
to be amendments to the MOI (articles of association) involving the
deletion of clause
6.3 and the introduction of a new clause 35. A
summary of the proposed amendments, the original MOI, as well as the
copy of the
amended MOI, were attached to the notice.
[54]
The meeting did not take place on 23 June 2018 and notice was again
given on 23 January 2019
for the special general meeting to take
place on 23 February 2019. Again, and as indicated, the only item on
the agenda was the
amendments to the MOI, with discussion to take
place between 9h00 and 10h00 and voting to take place at 10h00.
[55]
The minutes of the special general meeting for 23 February 2019
record that there was a quorum
of 216 votes, represented by a proxy
of 164 votes on behalf of the developer, 38 proxies on behalf of
homeowners and 14 homeowners
were present.
[56]
At the outset, the developer’s right to vote was placed in
question and it was agreed that
the chairman of the meeting would
contact the developer to obtain a mandate. Pending the outcome of
that telephone call, it was
agreed to continue with the discussion on
the proposed amendments to the MOI.
[57]
Because certain ‘cosmetic’ changes did not require
voting, certain provisions of
the 2013 MOI were amended, which
included the deletion of clause 6.3. The minutes record the reason
for the cosmetic deletion of
clause 6.3 to be that the term
‘Constitutional meeting’ does not exist.
[58]
Subsequent to the making of these ‘cosmetic’ changes, the
developer made payment
of outstanding levies, and the chairman then
stated for the record that the developer now had full voting rights.
Further amendments
to the MOI were then voted on, one of which
involved the introduction of the new clause 35 to the MOI.
[59]
For purposes of this appeal, the upshot of what transpired at the
meeting, is that:
(a)
the deletion of clause 6.3, classified as a ‘cosmetic’
change for which there
is no provision in the MOI, was in fact an
amendment of the MOI as contemplated in the definition of ‘Special
Resolution’
in clause 2.1.3.1 of the MOI, which thus required
the support of at least 75% of the voting rights exercised on the
resolution.
No voting is recorded to have taken place, with the
consequence that the deletion of that clause from the 2013 MOI was
unlawful;
and
(b)
the resolution for the amendment of 2013 MOI by the introduction of
clause 35 was voted
on and was passed as a special resolution
amending the MOI. Notably, and in regard to the clauses voted on,
which are identified
as items 9 through to 23 in the minutes, there
is no record to the effect that any objections were made to the
proposed amendments
and it follows, in my view, that these amendments
were approved by all present at the meeting and those amendments were
therefore
lawful.
[60]
It follows, in my view, that the 2019 MOI featuring the new clause
35, when registered with CIPC,
should also have retained clause 6.3
from the 2013 MOI.
The
2019 MOI and the 21 August 2021 AGM
[61]
At a meeting of the board of directors of the first respondent on 1
April 2021, it was unanimously
resolved to amend the Conduct Rules to
read:
‘
no
home owner will be allowed to conduct and/ or run any form of a bed
and breakfast service on the estate.’
[62]
The power of the board to amend the Conduct Rules is provided for in
clause 11.6 of the 2019
MOI. Such amendment is required to be
confirmed at a general meeting as provided for in clause 6.3.2 of the
2013 MOI, which, as
I have indicated, should have been retained in
the 2019 MOI.
[63]
In accordance with clause 6.2 of the 2019 MOI, notice was given on 15
July 2021 for the convening
of the AGM for 2021 to take place on 21
August 2021. The notice records, at item 11, the voting and
discussion on the proposed
special resolutions, annexures A and B to
the notice, with annexure A providing background information relating
to the proposed
resolution, which is annexure B. The resolution
provides for the insertion of paragraphs 24.5.1. and 24.5.2 to the
2019 MOI, the
latter reading:
‘
24.5.2
No member shall be allowed to use or allow any other person to use
any building on any land for a bed and breakfast facility,
overnight
short term rental facility or to lease out such property for a rental
period of less than six months unless such owner
is allowed to do so
in terms of the approved scheme and zoning rights therein contained.’
[64]
The Trust argued that the meeting was not properly convened and could
only be convened in terms
of clause 6.4 of the 2013 MOI (which is now
clause 6.3 of the 2019 MOI) and which allows for the calling of an
extraordinary meeting
and/or constitutional general meeting on
written requisition of members holding not less than 10% of the
voting rights of the first
respondent.
[65]
This argument does not hold true. A special resolution, as defined in
clause 2.1.31 of both the
2013 and 2019 MOIs, may be voted on at an
AGM of the first respondent as further provided for in clause 6.2.
The first respondent’s
board, in terms of clause 6.2 is
authorized to convene an AGM, and indeed convened such an AGM for 21
August 2021.
[66]
The special resolution was passed at that AGM with the required 75%
vote being achieved. The
vote, in fact, was an overwhelming 98% in
favour of the passing of the resolution.
[67]
In the result, I find that the amendment to the 2019 MOI, which the
Trust seeks to impugn, is
valid in all respects and follows from the
lawful passing of a special resolution in accordance with the first
respondent’s
2019 MOI.
[68]
I find further that the passing of the special resolution is not
impacted by clause 6.3 of the
2013 MOI, and that it was not necessary
to convene a constitutional general meeting in order to pass the
special resolution.
Vested
right
[69]
This leaves the Trust’s argument that the amendment to the Code
of Conduct and the MOI
interferes with the vested right of the Trust
which was afforded to the Trust in 2017 when the Trust erected a
dwelling on the
property.
[70]
In my view, this argument is also without force.
[71]
The Trust’s right to the short-term leasing of the property is
a right that was established
by virtue of the Conduct Rules that were
in existence at the time that the Trust acquired the property.
[72]
As indicated in this judgment, the Trust, upon taking transfer of the
property bound itself to
the MOI and to the Conduct Rules, which
include a stipulation that those rules can be amended.
[73]
Consequently, the right that the Trust relies upon could exist only
for so long as the Conduct
Rules, allowing it to sublet the property
on a short-term basis, remained in existence.
Conclusion
[74]
The third respondent failed to consider all of the facts and the
evidence before him in determining
the application before him.
[75]
He was required to determine if the 2013 MOI was lawfully amended and
in what respect it was
amended. He was further required to determine
if the amendments to the 2019 MOI and the Conduct Rules at the
general meeting held
on 21 August 2021 were lawful in all respects.
[76]
The third respondent’s decision predicated on the 1 April 2021
resolution of the board
of directors ignored other relevant facts on
record in the application and ultimately meant that he did not
properly apply the
law to the facts.
[77]
Although the third respondent did not properly apply the law to the
facts, ultimately the amendment
to the Conduct Rules and the MOI, by
the passing of the special resolution at the AGM on 21 August 2021,
meant that the Conduct
Rule, allowing the Trust to sublet the
property on a short-term basis ceased to exist. The Trust is bound by
such resolution taken
and the amendment brought about.
[78]
In the circumstances, this appeal must fail.
Order
[79]
I therefore make the following order:
1.
The appeal is dismissed.
2.
The appellants are directed to pay the first respondent’s
costs, including the costs consequent upon the employment of senior
counsel.
COMBRINCK
AJ
Date
reserved:
28
July 2023
Date
delivered:
For
applicant:
Adv
Roberts SC / Adv Roberts
Instructed
by:
For
1
st
Respondents:
Adv
De Wet SC
Instructed
by:
[1]
Abraham
and another v Mount Edgecombe Country Club Estate Management
Association Two (RF) (NPC)
[2014]
ZAKZDHC 36 para 5.
[2]
Body
Corporate, Paddock Sectional Title Scheme v Nicholl
2020
(2) SA 472 (GJ).
[3]
Stenersen
& Tulleken Administration CC v Linton Park Body Corporate and
another
2020
(1) SA 651
(GJ) paras 33-35 (‘
Stenersen
& Tulleken
’
).
[4]
Stenersen
& Tulleken
para
19.
[5]
Tikly
and others v Johannes NO and others
1963
(2) SA 588
(T).
[6]
Ibid
at 590G-591A.
[7]
See
in this regard
Trustees,
Avenues Body Corporate v Shmaryahu and
another
2018
(4) SA 566
(WCC),
Durdoc
Centre Body Corporate v Singh
2019
(6) SA 45
(KZP) para 15, and
Stenersen
& Tulleken.
[8]
Platt
v Commissioner for Inland Revenue
1922
AD 42
at 49-50;
Kingshaven
Homeowners’ Association v Botha and others
2023
(4) SA 187
(WCC) paras 19-20.
[9]
Kingshaven
Homeowners’ Association (supra)
para
20.