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2024
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[2024] ZAFSHC 329
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Litabe v Community Scheme Ombud Service and Others (6223/2023) [2024] ZAFSHC 329 (25 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
interest to other Judges: NO
Circulate
to Magistrates:
NO
Case
no:
6223/2023
In
the matter between:
TATOLI
LITABE
Applicant
And
COMMUNITY
SCHEME OMBUD SERVICE
1
st
Respondent
ORAPELENG
SEBECO
2
nd
Respondent
ELBERT
HEIGHT COMPLEX CO-OPERATIVE
3
rd
Respondent
Coram:
NM MBHELE DJP et JP DAFFUE J
Heard
:
21 OCTOBER 2024
Delivered
:
25 OCTOBER 2024
Summary
:
The owner of one of the units in the Elbert Height sectional title
scheme (Elbert Height) brought an application to review
and set aside
as invalid a decision by the Community Scheme Ombud Service (the
Ombud) dated 13 March 2022 in terms whereof Elbert
Height had been
ordered to remove the owner’s trailer (a mobile kitchen unit)
from common property designated as ‘guest
parking’. The
applicant and the second respondent, who had filed the complaint
adjudicated by the Ombud, were
ad idem
that the trustees of
Elbert Height acted
ultra vires
when they allocated the
specific parking, a so-called guest parking in front of the second
respondent’s unit, to the applicant
for his exclusive use. The
court held that the relief sought would have no practical effect if
granted and dismissed the application
with costs.
ORDER
1.
The application is dismissed.
2.
The applicant shall pay the costs of the application in addition to
the costs order already
made, including the second respondent’s
costs of opposition as well as the fees of counsel on scale B.
JUDGMENT
Daffue
J
[1]
The applicant sought the following relief in the notice
of motion:
‘
1.
The following decision are reviewed and set aside and declared
invalid:
1.1
The decision of the 1
st
Respondent dated 13 March 2022 and
with the reference number CSOS6119/FS/22 ordering Albert (sic)
Heights Complex Co-operative
to remove the trailer parked in a common
property in front of the 2
nd
Respondent’s [unit]
which has been designated as ‘guest parking’ area within
14 days of delivery of the said
order.
2.
Insofar as may be necessary, the period of 180 days referred to in
section 7(1)
of the PAJA is extended to the date of the launch of
this application.
3.
The costs of this application are to be paid jointly and severally by
any party
opposing this application.
4.
Further and/or alternative relief.’
[2]
It is unnecessary to deal with each and every allegation
contained in
the application papers and I shall restrict myself to some material
aspects. The trustees of the Elbert Height sectional
title scheme
(Elbert Height) granted the applicant the exclusive use of a guest
parking in front of the second respondent’s
unit in order to
park his mobile kitchen indefinitely. Mr Sebeco, the second
respondent, filed a complaint with the Community Scheme
Ombud Service
(the Ombud), cited as first respondent herein. The Ombud’s
appointed adjudicator considered the complaint without
requesting
presentations from the applicant who was not cited as a party in
those proceedings. The adjudicator directed Elbert
Height to remove
the mobile kitchen from the common property designated as guest
parking. The applicant initially appealed the
decision of the Ombud,
but eventually instituted a review application seven months after he
had become aware of the decision. Answering
and replying affidavits
were filed. The second respondent’s attorney set the matter
down for hearing as the applicant failed
to do so. When the matter
was heard on 29 July 2024, the applicant’s heads of argument
had not been filed. The court ordered
that the mobile kitchen be
removed pending finalisation of the review application which was
postponed to 21 October 2024, the applicant
to pay the costs
occasioned by the postponement on a punitive scale.
[3]
When the matter was heard on 21 October 2024, the applicant’s
counsel conceded that the applicant did not ask for the matter to be
referred back to the adjudicator in his notice of motion and
that he
did not have instructions to ask for such relief.
[4]
The applicant stated the following in clause 10 of the
founding
affidavit:
‘
As a result of the
above decision, the Trustees of the Third respondent allocated a
specific parking space to me. This allocated
parking space enable me
to park my trailer on the allocated parking space. I therefore agree
that the
trustees acted
ultra virus
(sic) when
they amended section 83.1 of the rules in order to grant me
additional parking in the communal area of Albert Heights
(sic)
Co-operative complex.’ (emphasis added)
[5]
The second
respondent stated unequivocally in his answering affidavit that he
agreed with the applicant’s contention that
the trustees’
decision to designate the guest parking for the exclusive use of the
applicant amounted to an irregularity.
[1]
In response thereto, the applicant reiterated the illegality of the
trustees’ decision more than once in his replying affidavit.
[2]
[6]
Clause 83.1 of Elbert Height’s rules reads as follows:
.‘The
right of
exclusive use and enjoyment
of the parts of the common property
shown as carports and/or garages on the plan titled ‘terrain
plan A’ attached hereto
as Annexure A, are awarded to the
owners of the units listed in Annexure B hereto, which portions will
be utilized for parking
purposes by the owners of the units to which
it is awarded.’ (emphasis added)
Clause 83.3 provides that
any amendment of the aforesaid rule 83.1 may only be effected with
the written consent of all Elbert Height’s
owners. It is common
cause that no such consent was ever obtained.
[7]
There can be no doubt that the meaning of ‘guest
parking’
in sectional title complexes is clear and unambiguous. These guest
parkings form part of the common property and
are to be used by
guests who from time to time visit owners. Generally speaking, no
owner is entitled to the exclusive use thereof.
[8]
It should have been clear from the very moment when the
applicant
launched his application that the trustees had no right to allocate
this specific guest parking to him for his exclusive
use. The fact
that he was not called upon by the adjudicator to make a presentation
is neither here, nor there.
[9]
As
mentioned, on 29 July 2024 the court already ordered the mobile
kitchen to be removed from the particular guest parking allocated
to
the applicant for his exclusive use pending finalisation of the
review application. The applicant did not insist in using the
particular guest parking for his exclusive use and also did not ask
the court to refer the matter back to the adjudicator for
reconsideration to allow the applicant to make submissions.
Consequently, the issue is of such a nature that the relief sought
from this court will have no practical effect or result and therefore
the application should be dismissed.
[3]
In
Premier,
Provinsie Mpumalanga en 'n Ander v Groblersdalse Stadsraad
[4]
the Supreme Court of Appeal held that appeals should be submitted for
adjudication only if there will be a real practical effect
or result
of a judgment on appeal.
Clearly,
the test is not whether the order sought might be of importance in a
hypothetical future case. In
Absa
Bank v Van Rensburg
[5]
the Supreme Court of Appeal confirmed the approach that the court
will not determine issues that are moot merely because the parties
(or one of them) believe that a practical result could be achieved in
other respects. I am of the view that the same principle
is
applicable to litigation in any court of first instance. The
applicant did not insist that he was entitled to the exclusive
use of
the guest parking allocated to him and consequently, there is no
existing or live controversy between the parties. They
are in
agreement in this regard.
[10]
Adv HP van Staden appeared before us for the first time on 21 October
2024
on behalf of the applicant. He was constrained to accept that
insofar as the applicant was also of the view that the trustees of
Elbert Height acted unlawfully in granting applicant the exclusive
use of the relevant guest parking, it would serve no practical
effect
to either refer the matter back to the adjudicator, or to grant an
order as requested. The matter has indeed become moot.
[11]
The only remaining issue to be considered was the costs of the
application.
Adv Van Staden submitted initially that insofar as the
applicant’s predicament was caused by the trustees of Elbert
Height,
the applicant should be entitled to the costs of the
application. However, on being questioned in this regard, he
submitted as
an alternative argument that each party should be
ordered to pay their own costs.
[12]
It should be emphasised that the Ombud abided the decision of the
court and
that Elbert Height did not oppose the application. Costs
were not sought from these two parties. In my view there is no reason
why second respondent shall be ordered to pay his own costs in
opposing the application. He is not at fault and as the successful
party he is entitled to be awarded his costs for opposing the
application. Adv MP Modise submitted on behalf of the second
respondent
that a punitive costs order on the scale as between
attorney and client should be awarded in favour of his client. I do
not agree
that a punitive order is warranted. The usual party and
party costs order should be granted.
[13]
Having considered the application, it should be dismissed and the
applicant
should be ordered to pay the second respondent’s
costs of opposition.
Order
[14]
The following order is made:
1.
The application is dismissed.
2.
The applicant shall pay the costs of the application in addition to
the costs order already
made, including the second respondent’s
costs of opposition as well as the fees of counsel on scale B.
JP
DAFFUE J
I
concur
NM
MBHELE DJP
Appearances
For
applicant:
HP
Van Staden
Instructed
by:
Byron
Says Attorneys Inc
Bloemfontein
For
respondent:
Adv
MP Modise
Instructed
by:
Moruri
Attorneys Inc
Bloemfontein
[1]
Record: p101-105, answering affidavit paras 5.6-5.22.
[2]
Record: p117-120, replying affidavit paras 5.8-5.20.
[3]
See in general pertaining to appeals:
s 16(2)(a)
of the
Superior
Courts Act 10 of 2013
.
[4]
1998
(2) SA 1136
(SCA) at 1141D-F; and
President
of the Republic of South Africa v Democratic Alliance and Others
2020 (1) SA 428
(CC) paras 14-16.
[5]
2014
(4) SA 626
(SCA) para 7.