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[2023] ZAKZPHC 149
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Hubener N.O and Others v HJ Pepler & PJ Human Share Block t/a Ridge Royal and Others (9026/2022P) [2023] ZAKZPHC 149 (25 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE
NO: 9026/2022P
In
the matter between:
CELESTE
ESTELLE HUBENER N.O. FIRST
APPELLANT
NATASHA
HUBENER N.O. SECOND
APPELLANT
SHANE
GILBERT HUBENER N.O. THIRD
APPELLANT
and
HJ
PEPLER & PJ HUMAN SHARE BLOCK
t/a
RIDGE
ROYAL FIRST
RESPONDENT
THE
COMMUNITY SCHEMES OMBUD SERVICE SECOND
RESPONDENT
ADV
R T
REDDY THIRD
RESPONDENT
ORDER
The following order is
granted:
1.
Condonation is granted for non-compliance with the time frames for
the noting of the appeal.
2.
The unsigned copy of Agreement of Use and Occupation is declared a
true reflection of the content of the agreement concluded
between the
first respondent and Steven William Hubener in 2008.
3.
The appeal in terms of section 57 of the Community Schemes Ombud
Service Act 9 of 2011 is upheld.
4.
The order by the third respondent in terms of section 54 of the
Community Schemes Ombud Service Act 9 of 2011 is set aside.
5.
The matter is remitted to the second respondent for proper
consideration of the applicable legislation, the agreement between
the parties, and any other relevant evidence.
6.
The first respondent is ordered to pay the costs.
JUDGMENT
Shoba
AJ:
Introduction
[1]
This is an appeal in terms of section 57 of the Community Schemes
Ombud
Service Act 9 of 2011 (‘the CSOS Act’) against the
adjudication order granted in favour of the first respondent against
Mr Steve William Hubener (‘the deceased’) by the third
respondent on 23 March 2021. The adjudication order ordered
the
deceased to pay R371 695.48 comprising of outstanding levies.
Parties
[2]
The first appellant is an adult female pensioner, residing at
Lavender
Road, Anlin, West Pretoria, and the wife of the deceased who
passed away on 22 June 2021. The first, second, and third appellants
are the duly appointed executrixes and executors of the deceased’s
estate. The second and third appellants are the children
of the first
appellant and the deceased.
[3]
The first respondent is H J Peppler & PJ Human Share Block (Pty)
Ltd
t/a Ridge Royal, a company duly registered in terms of the
relevant statutes of the Republic of South Africa. The second
respondent
is the Community Schemes Ombud Service, a statutory body
established in terms of the CSOS Act established to regulate the
conduct
of parties within community schemes. The third respondent is
the adjudicator who was appointed by the second respondent to
adjudicate the dispute.
[4]
In terms of the notice of motion, the appellants seek the following
relief:
‘
1.
That the time period contemplated by Section 57 of the Community
Schemes Ombud Service
Act, Act 9 of 2011, for the filing of an appeal
against an Adjudication Order, be extended and that the late filing
of this appeal
against the Adjudication Order by the 3
rd
Respondent on 23 March 2021 under reference number CSOS 03487/KZN/19
be condoned.
2.
That the unsigned copy of the Agreement of Use and Occupation,
annexed to the Founding Affidavit as ANNEXURE “B”, be
declared a true reflection of the content of the Agreement concluded
between the 1
st
Respondent and Steven William Hubener in
2008.
3.
That the Appellants be permitted to present the unsigned copy
of the
Agreement of Use and Occupation, annexed to the Founding Affidavit as
ANNEXURE “B”, as new evidence in the appeal.
4.
That this appeal . . . be upheld and that the Adjudication Order
be
rescinded and set aside.
5.
Costs of this application/appeal, only if- and against those
Respondent/(s) opposing.
6.
. . .’
Factual
background
[5]
The deceased was a holder of shares in the first respondent and was
entitled
to the exclusive use and occupation of certain units, namely
flats 13 and 14, and garages 10 and 11. The deceased allegedly failed
to make a levy contribution for several years. The first respondent
approached the second respondent in terms of section 38(1)
of the
CSOS.
[6]
The deceased, according to the report by the third respondent, did
not
deny that the monies were owing but indicated that he was denied
the use and enjoyment of the property, in part by the second
respondent
after the premises were declared dangerous to inhabit by
the eThekwini Municipality. The third respondent found that there was
no lawful reason for the deceased to withhold levies and that he was
liable to pay the amounts claimed as well as interest on the
amounts.
[7]
On 23 March 2021, the third respondent issued an order. A copy
thereof
was sent via email on 23 March 2021. It ordered the deceased
to pay the outstanding levies as from 1 March 2021, in the amount of
R376 695.48, within 60 days of the service of the award on him (‘the
adjudication order’). On 26 May 2021, the deceased's
attorney
sent a letter informing the second respondent of the deceased’s
intention to appeal against the adjudication order.
[8]
On 23 June 2021, the deceased’s attorney served the notice of
appeal
on the respondents, unaware of the deceased’s passing.
On 1 September 2021, the second and third respondents delivered the
record of proceedings by email to the deceased’s attorney,
which excluded the agreement between the parties. On 6 October
2021,
the appellants’ attorney informed all parties involved about
the passing of the deceased.
Condonation
[9]
The appeal was not prosecuted in time due to a number of reasons,
which
included
inter alia
the death of the deceased, a change
in attorneys and the finalisation of practice directives by Judge
President of the KwaZulu-Natal
Division of the High Court, relating
to the process to be followed in bringing these types of appeals
before the court.
[10]
Section 57(2) of the CSOS Act provides that ‘[a]n appeal
against an order must be
lodged within 30 days after the date of
delivery of the order of the adjudicator’.
[11]
It is trite
that a court may on good cause shown, condone non-compliance. The
approach in determining whether good cause has been
shown, is the
oft-quoted passage enunciated by Holmes JA in
Melane
v Santam Insurance Co Ltd
:
[1]
‘
In
deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefor, the
prospects of success, and the importance of the case. Ordinarily
these facts are interrelated: they are not individually decisive, for
that would be a piecemeal approach incompatible with
a true
discretion. . .’
[12]
The court
in
Academic
and Professional Staff Association v Pretorius NO and others
summarised the principles for consideration in an application for
condonation as follows:
[2]
‘
[17]
The factors which the court takes into consideration in assessing
whether or not to grant condonation
are:
(a)
the
degree of lateness or non-compliance with the prescribed time
frame;
(b)
the
explanation for the lateness or the failure to comply with time
frame;
(c)
prospects
of success or bona fide defence in the main case;
(d)
the
importance of the case;
(e)
the
respondent's interest in the finality of the judgment;
(f)
the
convenience of the court; and
(g)
avoidance
of unnecessary delay in the administration of justice. . .
[18]
It is trite law that these factors are not individually decisive but
are interrelated and must
be weighed against each other. In weighing
these factors for instance, a good explanation for the lateness may
assist the applicant
in compensating for weak prospects of success.
Similarly, strong prospects of success may compensate the inadequate
explanation
and long delay.’
[13]
In this case, the intention to appeal the order was communicated two
months after the order
was delivered and two days in excess of 60
days within which the payment was expected to be made. The order of
the adjudicator
was thus not given effect to. This was not objected
to by the respondents. What then transpired was a number of events
which led
to the delay in prosecution of the appeal, as previously
mentioned.
[14]
These, I find, taken cumulatively amount to a reasonable, acceptable
and satisfactory explanation
for the delay. Condonation is therefore
granted.
Appeal
[15]
The appeal grounds are as follows:
(a)
The relationship between the deceased and First Respondent was
allegedly
governed by an agreement – which is unsigned. The
most relevant clause was clause 17 which provided that
‘
.
. . [t]he obligation of a Holder to pay a levy shall cease upon the
lawful termination of the Holder’s right of occupation,
save
for any arrear levies to the date of such a termination. No excess
levies paid by Holders shall be repayable by the Company
on the
termination of Holder's right of occupation’.
(b)
The appellants aver that there were no outstanding levies at the time
of the termination of the deceased’s right to occupation. To
the contrary, the deceased’s levies were paid in full until
nine months after termination of his rights to occupation.
(c)
The deceased was not liable to pay levies to the first respondent
subsequent
to the lawful termination of his right to occupation in
terms of the agreement or any other breach.
(d)
The first respondent had no basis on which to claim levies from the
deceased
after August 2016. The third respondent misdirected himself
in deciding the matter by failing to consider the contractual
relationship
between the deceased and the first respondent.
(e)
The third respondent erred in failing to consider the contractual
relationship
between the deceased and the first respondent, and erred
in:
(i)
Holding that the deceased was liable for payment of levies
to the
first respondent even after the lawful termination of the deceased’s
rights;
(ii)
Holding that it was common cause between the deceased and the first
respondent that the deceased was liable for payment of levies to the
first respondent; and
(iii)
Failing to recognise that no levies became due by the deceased to the
first respondent after 26 August 2016.
(f)
The findings and order in the adjudication order are clearly wrong
and ought to be set aside.
[16]
The first respondent opposed the appeal for the following reasons:
(a)
In accordance with section 57(1) of the CSOS Act, an appeal of an
adjudication
order is restricted to issues of law, while section 52
states that in the ordinary course, parties are not entitled to legal
representation
during the adjudication process.
(b)
The basis of the appeal is that the client did not have the benefit
of
legal counsel at the hearing and some important issues were not
raised. This, in essence, being the unsigned agreement.
(c)
The unsigned agreement now sought to be relied on, was in possession
of
the deceased and/or appellants at all times. The appellants are
therefore attempting to have a second bite at the cherry, which
is
not in accordance with the CSOS Act nor the appeal procedures and
rules.
Legal
framework
[17]
The right to appeal an adjudication order is provided for terms of
section 57. Section
57(1) provides that ‘an applicant, the
association or any affected person who is dissatisfied by an
adjudicator's order,
may appeal to the High Court, but only on a
question of law’.
[18]
The powers
of the court in these types of reviews are limited. In
Trustees,
Avenues Body Corporate v Shmaryahu and another
[3]
it was held that
‘
What may be sought
in terms of s 57 is an order from this court setting aside a decision
by a statutory functionary on the
narrow ground that it was
founded on an error of law. The relief available in terms of s 57 is
closely analogous to that which
might be sought on judicial review.
The appeal is accordingly one that is most comfortably niched
within the third category
of appeals identified in
Tikly and
Others v Johannes NO and Others
1963 (2) SA 588
(T) at
590–591.’ (Footnote omitted.)
In
Kingshaven
Homeowners’ Association v Botha and others
[4]
it was also held that:
‘
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”.’
[19]
In
Stenersen
& Tulleken Administration CC v Linton Park Body Corporate
[5]
the
court held the following:
‘
[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.’
[20]
In
Nuwekloof
Private Game Reserve Farm Owners' Association v Hanekom N.O and
others
[6]
the
court held that
‘
Whether
the [adjudicator] committed an error of law is a matter that falls to
be determined with reference to the reasons he gave
in support of the
order he made.’
Analysis
[21]
The first respondent does not dispute that there was a binding
agreement between the parties.
It avers that the original copy was,
however, misplaced. The appellants have a copy of the agreement,
which bears the names of
the parties, the property description, and
the terms and conditions of the contract. The only thing that is
missing is the signatures
of the parties. The deceased, it would
appear, was in possession of the said agreement at the time of the
adjudication of the matter
by the third respondent. He, however, did
not present it as authority for his assertion that he was not liable
to pay levies.
[22]
In the email dated 3 December 2019 which was sent to the second
respondent, the deceased
indicated that he had issues with the fact
that he was unable to occupy the flat due to it being declared unsafe
to occupy and
that he was expected to pay for services he has not
received. He also lamented the fact that he was losing income as he
was not
able to use or to rent the flat out. The letter reads as
follows:
‘
I,
Mr. S.W. Hubener, bought unit 13 of Ridge Royal for an amount of R1
300 000, we have upgraded the flat by taking out all the
old wooden
window frames and replacing them with aluminium window frames, but
the directors of Ridge Royal neglected to maintain
the roof and in
turn resulted in damaging out (sic) ceiling and wooden floors in the
main bedroom and the passage way. We requested
that they repair the
damage, but they would not, eventually they did attempt to fix it and
we paid levies.
On
the 26 August 2016 we were told that our flat was unsafe for
occupation. My Wife and I bought this unit 13 (we also have a second
unit No 7 where the levies are totally up to date) for the sole
purpose of having accommodation for us and to rent out to family
and
friends when they needed accommodation, whilst on holiday.
As
stated we bought the unit 13 for R1 300 000 and in all this time of
not being able to use or rent out the flat we have had to
continue
paying the loan back, and have had to pay for accommodation for our
own holidays (we are a family of 6 so we would be
unable to all stay
in the bachelor unit No 7.)
Through
our lawyer's we requested compensation for loss of income both from
Caron Smith representing Ridge Royal - who never answered
our lawyers
and the Rio Construction Company (see attached letter received from
there (sic) lawyers). We would like to state that
we have never
received a letter from any lawyer representing Ridge Royal, we have
only received emails on behalf of the Directors
from Lumen Rock.
Our
question is why has it taken so long (26 August 2016 to date almost 3
and half years later and still ongoing) for the Directors
of Ridge
Royal to sort out this problem. From letters received it seems the
Rio Construction is putting all the blame on Ridge
Royal, but the
problem only occurred when Rio Construction started excavating next
to Ridge Royal, the building was fine before
this, for many years.
The
Rio Construction Company should be made to pay for the damages and
loss of income.
Ridge
Royal requests that we pay all outstanding amounts - for services we
have not received, no accommodation, no water, no electricity,
and
interest which would not have been there if this had been sorted out
expeditiously. We request to be paid loss of income.
.
. .’
[7]
[23]
There is no
way that the content of the email could have been construed to mean
that the deceased was not disputing owing levies.
The finding of the
third respondent that it was common cause that the deceased owed
levies was, therefore, incorrect. The third
respondent held that ‘I
am
satisfied
that the Respondent has no lawful reason to withhold the levies, as
levies are controlled by legislation as well
as
contract
...’.
[8]
[24]
An adjudicator is empowered by section 51 to call for further
information and/or documents
from any relevant person which may
assist him in arriving at an appropriate decision
.
This
section provides that
‘
51. Investigative
powers of adjudicator.—
(1) When
considering the application, the adjudicator may—
(
a
)
require the applicant, managing
agent or relevant person—
(i)
to give to the adjudicator
further information or documentation;
(ii)
to give information in the form
of an affidavit or statement; or
(iii)
subject to reasonable notice being
given of the time and place, to come to the office of the
adjudicator
for an interview;
(
b
)
invite persons, whom the
adjudicator considers able to assist in the resolution of issues
raised in the application, to make written submissions to the
adjudicator within a specified time. . .’
[25]
The
relevant person could be any person; it does not have to be the
person who is relying on the document as a defence. It is, therefore,
incumbent upon an adjudicator to obtain as much relevant information
as possible to enable him to make a reasoned decision, especially
when one considers the fact that adjudicators frequently deal with
lay litigants who may not be in a position to know what documents
will be relevant in arriving at the appropriate decision.
[9]
[26]
I agree, therefore, with the argument by the appellants that the
first respondent was also
expected to furnish the agreement to the
third respondent regardless of the fact that it was not relying on
its terms in asserting
its claim.
[27]
The first
respondent argues that the relationship between the parties was not
only governed by the contract, but was also governed
by other laws,
in particular the Share Blocks Control Act 59 of 1980 (‘the
Share Blocks Act’), the Memorandum of Incorporation,
the
purchase agreement, the signed cession and the House Rules of Ridge
Royal. What is puzzling is that none of these were indicated
as
having been considered by the third respondent. The Share Blocks Act
in section 13 makes provisions for payment of levies between
a Share
Block Company and its members. Section 13(2) specifically indicates
that it is applicable if no provision is made in the
memorandum or
articles of a Share Block Company or in any agreement or arrangements
between the company and its members.
[10]
In this case, there is an agreement between the parties, which
governed the relationship of the parties in relation to the payment
of levies.
[28]
The terms of the unsigned agreement are not disputed, nor is it
disputed that it is a true
reflection of the misplaced signed
agreement between the deceased and the first respondent and that it
was in force since 2008.
[29]
The deceased challenged the allegation that he was obligated to pay
the levies before the
matter was referred to adjudication for the
main reason that he was not occupying the property. The contract
governing their relationship
was therefore important in making a
determination as to whether or not he was liable for levies. Reaching
a decision without properly
analysing its terms and conditions was
therefore improper.
[30]
Section 54(1)
(c)
provides that the order of an adjudicator
must include a statement of the adjudicator's reasons. Section 54(1)
reads as follows:
‘
(1) If
the application is not dismissed, the adjudicator must make an order—
(
a
)
granting or refusing each part of the
relief sought by the applicant;
(
b
)
in the case of an application which
does not qualify for a waiver of adjudication fees, apportioning
liability for costs;
(
c
)
including a statement of the
adjudicator’s reasons for the order; and
(
d
)
drawing attention in the prescribed
form to the right of appeal.
(2) An
order may require a person to act, or refrain from acting, in a
specified way.’
[31]
The statement of the adjudicator's reasons is not intended to be as
detailed as a court
judgment. In my view, however, when it is read,
it should enable the reader to ascertain:
(a)
The parties;
(b)
The nature of the dispute;
(c)
The witnesses that testified or were consulted;
(d)
The summary of their evidence, and where affidavits were considered,
the
relevant parts thereof;
(e)
Documents that were considered and the relevant parts thereof;
(f)
Common cause issues;
(g)
Issues in dispute;
(h)
Legal framework applied which does not have to be in detail;
(i)
A brief account of how the evidence was analysed and the rationale
behind the decision taken (which is the most important part);
(j)
The final order; and
(k)
A party’s right to appeal.
[32]
In this case, the third respondent merely makes mention of the fact
that ‘levies
are controlled by legislation as well as contract’
and this was the basis upon which his findings were based. He,
however,
does not explain which provisions were considered and how he
reached his conclusion. His order should have at least, in my view,
indicated which terms were considered, to explain how he reached his
conclusion, and the rationale for the order handed down.
[33]
Under the headings of the relevant statutory provisions and the
summary of evidence, there
is no indication of what contract and
which of its terms were considered in reaching the decision that the
deceased was liable
to pay the amounts claimed, as well as interest
on the amounts. The only contract between the parties is the unsigned
copy of the
original that was presented by the appellants. It is a
valid and binding agreement, in my view, since the parties'
relationship
was governed by it from 2008 to date. There is no doubt
that they had and still have the intention to be bound by it.
[34]
For the above reasons, the adjudication order stands to be set aside
as it was reached
without any judicious consideration of relevant
statutes, contracts, and other relevant evidence.
Remedy
or Substitute Order
[35]
The order
made by the adjudicator constitutes administrative action. Once the
administrative action is set aside, the court has
a wide discretion
to grant any order that is just and equitable or to remit the matter
back to the administrator for proper consideration.
In
Livestock
and Meat Industries Control Board v Garda
[11]
the court held that
‘
the
Court has a discretion, to be exercised judicially upon a
consideration of the facts of each case, and that, although the
matter will be sent back if there is no reason for not doing so, in
essence it is a question of fairness to both sides’.
[36]
In deciding
whether to grant an order of substitution or to remit the matter back
to the administrator, a number of factors are
to be considered. In
Johannesburg
City Council v Administrator, Transvaal, and another
[12]
the court acknowledged that the usual course in administrative review
proceedings is to remit the matter to the administrator for
proper
consideration. However, it recognised that courts will depart from
the usual course in two circumstances:
‘
(i) Where
the end result is in any event a foregone conclusion and it would
merely be a waste of time to order
the tribunal or functionary to
reconsider the matter. This applies more particularly where much time
has already unjustifiably
been lost by an applicant to whom time is
in the circumstances valuable, and the further delay which would be
caused by reference
back is significant in the context.
(ii) Where
the tribunal or functionary has exhibited bias or incompetence
to such a degree that it would be
unfair to require the applicant to
submit to the same jurisdiction again.’
[37]
In
Trencon
Construction
[13]
the court held that
‘
The
Supreme Court of Appeal in
Gauteng Gambling Board
seems
to have added another consideration, whether the court was in as good
a position as the administrator to make the decision. For
this
it noted that the administrator is “best equipped by the
variety of its composition, by experience, and its access to
sources
of relevant information and expertise to make the right
decision”.’
[38]
The court
further held that ‘[j]udicial deference, within the doctrine of
separation of powers, must also be understood in
the light of the
powers vested in the courts by the Constitution’.
[14]
[39]
In this case, I have been asked that if I find that the decision by
the third respondent
was wrong and that the unsigned copy of the
agreement is valid, I should engage in the interpretation of the
agreement and make
a determination whether the deceased was correct
in his decision not to pay levies.
[40]
The basis for the order by the third respondent is not clear, to the
extent that I cannot
properly assess the decision. To engage in
the process of interpreting the terms of the contract will
tantamount to
retrying the matter and usurping the powers of
the adjudicator, which is not envisaged by section 57.
[41]
I am also of the view that the second respondent is in the best
position to access all
the relevant information required to make an
appropriate decision, as empowered by the CSOS Act.
[42]
Therefore, I find it appropriate that the matter be remitted to the
second respondent for
reconsideration.
Order
[43]
In the premises, the following order is made:
1.
Condonation is granted for non-compliance with the time frames for
the noting of the
appeal.
2.
The unsigned copy of Agreement of Use and Occupation is declared a
true reflection
of the content of the agreement concluded between the
first respondent and Steven William Hubener in 2008.
3.
The appeal in terms of section 57 of the Community Schemes Ombud
Service Act 9 of 2011
is upheld.
4.
The order by the third respondent in terms of section 54 of the
Community Schemes Ombud
Service Act 9 of 2011 is set aside.
5.
The matter is remitted to the second respondent for proper
consideration of the applicable
legislation, the agreement between
the parties, and any other relevant evidence.
6.
The first respondent is ordered to pay the costs.
_____________
SHOBA
AJ
Appearances
Date
of hearing:
19
April 2023
Date
of Judgment:
25 October 2023
For
Appellants:
J.J. Greeff
Instructed
by:
Ludick Attorneys
c/o Stowells Incorporated
295 Pietermaritz Street
Pietermaritzburg
Ref: Mr Lemmer
For
1
st
Respondent:
D.M. Ainslie
Wendy Bothma Attorneys
c/o/ DOCEX,
Pietermaritzburg
48 Chief Albert Luthuli
Street
Pietermaritzburg
Ref:
RID5/0001
[1]
Melane v
Santam Insurance Co Ltd
1962
(4) SA 531
(A) at 532B-D.
[2]
Academic
and Professional Staff Association v Pretorius NO and others
[2007] ZALCJHB 4; (2008) 29 ILJ 318 (LC) paras 17-18.
[3]
Trustees,
Avenues Body Corporate v Shmaryahu and another
2018 (4) SA 566
(WCC) para 25.
[4]
Kingshaven
Homeowners’ Association v Botha and others
2023 (4) SA 187
(WCC) para 11.
[5]
Stenersen
& Tulleken Administration CC v Linton Park Body Corporate and
another
2020 (1) SA 651
(GJ) paras 33-35.
[6]
Nuwekloof
Private Game Reserve Farm Owners' Association v Hanekom N.O and
others
[2023] ZAWCHC 10
para 24.
[7]
Founding
affidavit, annexure ‘C’.
[8]
Adjudication
order para 20.3.
[9]
Naidoo
v Chicktay NO and others
[2022] ZAGPJHC 929 paras 26-27.
[10]
Section
13 of the Share Blocks Act reads as follows:
‘
(1) A
share block company shall in respect of the share block scheme it
operates establish and maintain a levy fund sufficient,
in the
opinion of its directors, for the repair, upkeep, control, management
and administration of the company and of the immovable
property in
respect of which it operates the share block scheme, for the payment
of rates and taxes and other local authority charges
on the said
immovable property, any charges for the supply of electric current,
gas, water, fuel and sanitary and any other services
to the said
immovable property, and services required by the company, for the
covering of any losses suffered by the company, for
the payment of
any premiums of insurance and of all expenses incurred or to be
incurred to effect the opening under section
5 of the
Sectional Titles Act of a sectional title register in relation to the
said immovable property, and for the discharge
of any other
obligation of the company.
(2) Save
as otherwise provided in the memorandum or articles of a share block
company or in any agreement or arrangement
between the company and
its members, every member of the company shall contribute monthly to
the levy fund in the proportion of
the number of his shares to the
total number of issued shares of the company or, if the company does
not have a share capital,
all its members shall so contribute
equally.
(3) All
contributions received in terms of subsection (2) shall
forthwith—
(
a
)
be deposited in a separate
account which the company shall open and keep with a bank or building
society; or
(
b
)
be entrusted to a practitioner
or to an estate agent, in his capacity as such.
(4) The
moneys in the levy fund shall be utilized to defray the expenses
referred to in subsection (1).
(5) The
directors of the share block company shall ensure that such
accounting records as are necessary fairly to reflect
and explain the
state of affairs in respect of the moneys received and expended by or
on behalf of the company in respect of the
share block scheme
operated by the company, are kept in one of the official languages.’
[11]
Livestock
and Meat Industries Control Board v Garda
1961 (1) SA 342
(A) at 349G-H.
[12]
Johannesburg
City Council v Administrator, Transvaal, and another
1969 (2) SA 72
(T) at 76E-G.
[13]
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and another
[2015] ZACC 22
;
2015 (5) SA 245
(CC) para 40.
[14]
Ibid
para 45.