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[2019] ZAKZPHC 29
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Body Corporate of Duroc Centre v Singh (AR99/18) [2019] ZAKZPHC 29; 2019 (6) SA 45 (KZP) (13 May 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
CASE NO: AR99/18
In the matter between:
THE BODY CORPORATE OF
DURDOC CENTRE

APPELLANT
and
DR DINESH
SINGH

RESPONDENT
­
ORDER
­­­­
In the result the
following order is made:
1. The appeal in terms of
s 57 of the Community Schemes Ombud Service Act 9 of 2011 is upheld
with costs.
2. The order made by the
adjudicator in terms of s 54 of the said Act is set aside.
JUDGMENT
STEYN J (MADONDO
DJP concurring)
[1]
This is an appeal in terms of s 57 of the Community Schemes Ombud
Service Act 9 of
2011 (hereinafter referred to as the CSOS).
[2]
The appellant, who is the Body Corporate of Durdoc Centre, applied
for condonation
in that it failed to comply with the time limit as
per s 57(2)
[1]
of the
CSOS
.
The application was not opposed and granted.
[3]
The respondent is the manager of the company Ashdin Holdings (Pty)
Ltd which  owns
a number of units at Durdoc Centre. The
appellant manages the centre on behalf of the various owners
[2]
and the trustees serving on the body corporate are responsible for
raising the levies, which includes the amounts charged for the

consumption of electricity. It is common cause that the units owned
by the company were not supplied with electricity. In the period
of
the complaint, Dr Singh lodged an application for dispute resolution
with the Community Schemes Ombud on 5 September 2017 on
behalf of the
applicant in which he claimed reimbursements for ‘the
electricity portion of
my
levy as I have not received electricity.’ (My emphasis).
[4]
The dispute was opposed by the appellant and the dispute was referred
for adjudication
in terms of s 38
[3]
of the CSOS.
[5]
The dispute was adjudicated and on 11 November 2017 the adjudicator
delivered her
order and found that the appellant had been enriched by
the respondent’s contribution towards the electricity consumed
by
the units. The adjudicator directed the appellant to reimburse the
respondent and ordered that the amount be computed by calculating
20
per cent of the electricity amount included in the appellant’s
annual budget multiplied by the respondent’s participation

quota
,
being 0.1694. It was also ordered that the
reimbursement be calculated from the date of ownership, i.e. 7
October 2015.
[6]
The appellant raises the following grounds on appeal:
(a) that the adjudicator
erred in finding that the defendant before the tribunal had the
necessary
locus standi
to bring the dispute;
(b) that the adjudicator
erred in finding that the cause of enrichment had been established in
respect of the claim; and
(c) that the defendant
had proved the extent of his alleged impoverishment.
[7]
At the onset it is important to keep in mind that the appellant’s
right of appeal
is limited to questions of law only. Section 57(1) of
the CSOS provides:
‘
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’
(My
emphasis)
[8]
In terms of s 54(1) of the CSOS the adjudicator must make the
following orders if
the application is not dismissed:
‘
(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.’
[9]
The respondent prayed for the following order to be made by the
adjudicator:
‘
4.2.1 To get
compensation for the electricity as per the PQ in the monthly levies.
4.2.2 For the Body
Corporate to arrange for the supply of electricity to the mezzanine
level at Durdoc Centre.’
[4]
[10]
The adjudicator did not grant the second order prayed for by the
applicant.
[5]
The adjudicator
granted the relief as per the first prayer. For the sake of
completeness I will repeat the adjudicator’s
order in its
entirety:
‘
7.1
That the Respondent reimburse the Applicant for the electricity
consumption of the private sections contained in the Body Corporate

annual budget.
7.2 That the reimbursement be
calculated on 20% of the electricity amount included in the Body
Corporate annual budget and multiplied
by the Applicants (
sic
)
PQ being 0.1694.
7.3 That the reimbursement be
calculated from date of ownership being 7
th
October 2015.
7.4 That the applicant be reimbursed
this amount monthly hereafter, the credit to be shown on the monthly
levy statement.’
Locus Standi
[11]
Did the adjudicator err in allowing Dr Singh to lodge the dispute
with the Community Schemes
Ombud, i.e. did Dr Singh have sufficient
standing to lodge a dispute? In my view it is necessary to deal with
the standing of Dr
Singh first. If he lacked the necessary standing
to lodge the dispute then there is no need to decide on the other
grounds of this
statutory appeal. During oral argument counsel for
the appellant supplemented the written heads with reference to
Sentrakoop Handelaars Bpk
v
Lourens & another
1991 (3) SA 540
(W). Essentially it was averred that Dr Singh was not
the owner of the units nor was he an affected party or a party who
could
lodge a dispute. The adjudicator when the matter was heard was
of the view that it was merely the applicant’s authority to
act
for the company who owns the units that was challenged. The papers
that served before the statutory tribunal do not form part
of the
appeal before us. In the adjudicator’s findings she summarised
the applicant’s version as follows:
‘
The
Applicant’s authority to act for the owner of the section,
Ashdin Property Holdings (Pty) Ltd, was questioned. The Applicant

subsequently provided the resolution taken by the Board of Directors
of Ashdin Property Holdings (Pty) Ltd stating:
“
That Dinesh
Singh (70072351650589) in his capacity as Manager, is singly
authorised to apply to the CSOS, negotiate the terms and
conditions
for resolution of the dispute with Durdoc BC with electricity to
supply to mezzanine. He must seek to get compensation
for the
electricity paid as per PQ in the monthly levies and arrange for the
supply of the electricity to the mezzanine level of
Durdoc Centre. D
Singh is authorised to sign any documents and engage in verbal
negotiations in this matter that will be considering
(sic) binding to
Ashdin Property Holdings.”
’
[6]
[12]
When the appeal was heard it was argued that the adjudicator was
mistaken by equating authority
with legal capacity to litigate. Any
determination of a party’s standing to institute proceedings is
determined on facts
and the legal framework impacts on the facts. In
my view once the applicant’s
locus standi
was
challenged, the adjudicator ought to have made a finding on it before
the merits were considered. She did not make a finding
on this issue.
[13]
Conradie J in
Watt
v
Sea Plant Product Bpk
and
others
[1998] 4 All SA (C) at 113h -114d distinguishes between
locus standi and authority succinctly. The court held:
‘
Locus
standi in iudicio
is an access mechanism controlled by the court itself. The standing
of a person does not depend on authority to act. It depends
on
whether the litigant is regarded by the court as having a
sufficiently close interest in the litigation. In
Jacobs
en ’n Ander v Waks
en
andere
[1991] ZASCA 152
;
1992 (1) SA 521
(A) at 533J-534A Botha JA described the requirement
for
locus
standi
as “ ’n voldoende belang … by die onderwerp van
die geding om die hof te laat oordeel dat sy eis in behandeling

geneem behoort te word”. In
Jacob’s
case the question was what interest the applicants had in the
invalidation of a resolution of a local authority. The court
commented-
“
Aldus
beskou, spreek die férte sterk ten gunste daarvan dat die Hof
toe- ganklik behoort te wees vir hierdie applikante,
en gevolglik
moet die bevinding wees dat hule wel
locus
standi
het om die nietigverklaring van die besluit aan te vra”(536C-D).
The question then,
to be posed in
casu
is whether at the time summons was issued the trustees’
interest in the trust was too remote. The answer to this question

depends upon the nature of a trustee’s appointment. Where a
trustee has been appointed – in a trust deed or otherwise
–
the appointment is not void pending authorization by the Master in
terms of section 6(1) of the Act (cf.
Metequity
Limited and another
v
NWN
Properties Limited and others
[1997] 4 All SA 607
(T) at 611
a-d
).
Although a trustee’s power to act in that capacity is suspended
by section 6(1) of the Act, he or she would, in my view,
have a
sufficiently well defined and close interest in the administration of
the trust to have
locus
standi in iudicio
.
Any conclusion that the second and third defendants were by section
6(1) of the Act deprived of
locus
standi in iudicio
(which would mean not only that they could not be sued but also that
they could not approach the court to protect the interests
of the
trust) would not give effect to the intention of the legislature.
Whilst recognising the desire of the legislature to regulate
the
rights and duties of trustees in the Act, one should, I think, be
slow to conclude that it would have desired to accomplish
this by
controlling their access to, or accountability in, a court of
law.’
[7]
[14]
The adjudicator evaluated the evidence submitted to her as follows:
‘
5.
EVALUATION OF EVIDENCE SUBMITTED
It is common cause that the cost of
the electricity consumption of the majority of the scheme, excluding
10 sections only, is included
in the levy in terms of the Management
Rules and that, of this cost, approximately 80% is for the
electricity consumed on the common
property.
The Respondent’s comment that
the Applicant did not resolve the issue when he was a Trustee and
Chairman is irrelevant.
The Respondent’s position that
the Body Corporate cannot connect the meter to this section is
correct. Ethekwini Municipality
will only accept an application from
the owner of the property.
The Applicant is correct in his
comment that the BC is being enriched by his contribution toward the
electricity consumed by the
sections.  He must however accept
that 80% of the expenditure is for the consumption of electricity on
the common property
in which he owns an undivided share calculated on
the PQ for the section. The Applicants PQ is 0.1694.
The
Respondents request that, if the Applicant is reimbursed any portion
of the levy, that this only be calculated from 4
th
May 2016 is irrelevant. If there is to be any refund, the Applicant
is entitled to a refund from the date on which he became owner
of the
section.’
[8]
[15]
I agree with the conclusion reached by Binns-Ward J in
Trustees,
Avenues Body Corporate
v Shmaryahu & another
2018 (4)
SA 566
(WCC) that this statutory appeal is analogous to relief
usually granted in a judicial review. It was held:
‘
[25]
The appeal is not one for which provision is made in terms of the
rules of court, and no procedure
has been prescribed for it in terms
of the Act or the regulations made thereunder.  It is well
recognised that the word ‘appeal’
is capable of carrying
various and quite differing connotations.  One therefore has to
look at the language and context of
the statutory provision in terms
of which a right of appeal is bestowed in a given case to ascertain
the juridical character of
the remedy afforded thereby.  An
appeal in terms of
s
57 is not a ‘civil appeal’ within the meaning of the
Superior Courts Act 10 of 2013
.   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 N.O and Others
1963 (2) SA 588
(T) at 590-591.
[26]
The proper manner in which such an appeal should be brought in the
circumstances is upon notice
of motion supported by affidavit(s),
which should be served on the respondent parties by the sheriff.
It would also have
been indicated for the adjudicator, and not just
the Service, to have been cited as a respondent.  While the
adjudicator might
be expected in the ordinary course to abide the
judgment of the court, there will be cases in which the adjudicator
might nevertheless
consider that it might be helpful to file a report
for the court in respect of any aspect of fact or law not dealt with
in his
or her statement of reasons that might have assumed
significance in the context of the nature of a particular challenge
advanced
on appeal.  It is also desirable that when, as happened
in the current matter, the adjudicator’s order has been
registered
as an order of court in terms of s 56 of the Act, notice
of the proceedings also be given to the registrar or clerk of the
court
concerned; for the setting-aside of the order should as a
matter of good order result in the registrar or clerk concerned
expunging
the registration of it from the court’s records.
However, as no one objected to the procedure used by the appellants,

and as effective notice of the appeal appeared to have been achieved,
we agreed to entertain the appeal notwithstanding the procedurally

irregular manner in which it had been brought.  (Litigants
should not be misled by this into assuming that similar indulgence

will be afforded in like matters in the future.)’
(footnotes
omitted) (My emphasis)
[16]
The right to lodge a dispute has been prescribed by legislation as a
right that accrues to owners
of units who are materially affected by
a community scheme related matter. The applicant was neither the
owner of these units nor
did he have a material interest in the
existing scheme.  He lacked the necessary standing to institute
the dispute that was
adjudicated before the Ombud.
[17]
Accordingly the appeal should be upheld on the narrow issue of law.
[18]
In the result the following order is made:
1. The appeal in terms of
s 57 of the Community Schemes Ombud Service Act 9 of 2011 is upheld
with costs.
2. The order made by the
adjudicator in terms of s 54 of the said Act is set aside.
STEYN J
I
agree
MADONDO DJP
APPEARANCES
Counsel for the
appellant
:
M. Bingham
Instructed
by

:           Fourie
Stott Attorneys
c/o
Stowell
& Co
chris@fouriestott.co.za
sarahw@stowell.co.za
Ref: S Myhil
Tel: (031) 266 2530
Counsel for the
Respondents       :
S
Morgan
Instructed by

:           Sharon
Govender & Associates
c/o
A.K Essack Morgan Naidoo & Co

Ref: Lelo
sanaidoo@iburst.co.za
Tel: (031) 305 4613
Date of Hearing

:           22
March 2019
Date of Judgment

:           13 May
2019
[1]
Section 57(2) of the CSOS provides
for an appeal to be lodged within 30 days after the date of delivery
of the order of the adjudicator.
[2]
The body corporate derives its power
from s 8 of the Sectional Titles Schemes Management Act 8 of 2011.
[3]
Section 38 of the CSOS reads: ‘
(1)
Any person may make an application if
such person is a party to or affected materially by a dispute.
(2) An application must be-
(a)
made
in the prescribed manner and as may be required by practice
directives;
(b)
lodged
with an ombud; and
(c)
accompanied
by the prescribed application fee.
(3) The application must include
statements setting out-
(a)
the
relief sought by the applicant, which relief must be within the
scope of one or more of the prayers for the relief contemplated
in
section 39;
(b)
the
name and address of each person the applicant considers to be
affected materially by the application; and
(c)
the
grounds on which the relief is sought.
(4) If the applicant considers that
the application qualifies for a discount or a waiver of adjudication
fees, the application
must include a request for such discount or
waiver.’
[4]
See page 42 of the record.
[5]
See page 45 of the record.
[6]
See page 41 of the record.
[7]
At 113h to 114d.
[8]
See pages 43 and 44 of the record.