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Summary: Urgent application – rule 6(12)(b) – requirement of absence of substantial
redress in the ordinary course.
JUDGMENT
PG LOUW, AJ
Introduction
[1] This is an application to review and set aside the decision of the first and second
respondents (collectively referred to as the Ombud) to appoint the third and fourth
respondents (collectively referred to as the EMA) as the executive management agent
of the fifth respondent (the Body Corporate). The applicant also seeks leave to
supplement its papers under case number 131988 -2023, in the application for the
appointment of an administrator in terms of s 16 of the Sectional Titles Schemes
Management Act 8 of 2011 (the Act). The relief is sought on an urgent basis.
[2] The EMA and the Body Corporate delivered a notice of intention to oppose the
application but the EMA subsequently withdr ew its opposition and filed a notice to
abide by the decision of the court. The Ombud filed a notice to abide by the decision
of the court but reserved its right to oppose “if the need arises”.
[3] The applicant delivered a notice in terms of rule 7 challenging the authority of
Mduzulwana Attorneys Inc. to represent the Body Corporate. The Body Corporate
delivered a reply to the notice in terms of rule 7, to which is attached inter alia a power
of attorney signed by the EMA appointing the attorneys. The applicant delivered a
supplementary affidavit which the Body Corporate objected to. The third respondent
delivered an explanatory affidavit, which was objected to by the applicant. My finding
of a lack of urgency in this matter makes it unnecessary for me to make any finding in
respect of these issues.
[4] On 14 October 2024, the Ombud appointed the EMA for the Body Corporate.
On 21 October 2024, the applicant’s attorney addressed a letter to the Ombud
requesting the documentation relied upon for its decision in this regard. On 24 October
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2024, the Ombud requested the applicant to complete a PAIA form to access the
documents. On 29 October 2024, the applicant submitted the PAIA form to the Ombud.
On 8 November 2024, the Ombud furnished the applicant wi th all the requested
documents save for the resolution of the Body Corporate to apply to the Ombud for
the appointment of the EMA. On 14 November 2024, the applicant (through its
attorneys) was able to inspect the resolution at the offices of the Ombud. According to
the applicant, the inspectio n revealed that the resolution is insufficient to support an
appointment of an EMA. The applicant’s case is that it was only able to truly ascertain
the facts which led to the decision of the Ombud to appoint the EMA, on inspection of
the resolution.
[5] The applicant claims that if the relief sought is not granted on an urgent basis ,
it will result in a situation that “cannot be rectified by an appropriate cost order, and the
prejudice suffered will not be able to be mitigated ”. According to the applicant, the
matter cannot be addressed in the ordinary course and the Body Corporate and its
members are suffering severe prejudice. The applicant contends that there is a “very
real threat of further prejudice to be suffered by the [Body Corporate] and its members
– should this relief sought not be granted on an urgent basis”.
[6] The alleged prejudice turns on the conduct of the EMA. The EMA is said to be
acting on behalf of the Body Corporate, despite the alleged unlawful appointment. The
applicant alleges further that the EMA has not made payment to third party service
providers, has not taken any steps to collect the outstanding arrears of
R39,750,370.95 owed to the Body Corporate by members, but has made payment to
the EMA for its “services”.
[7] The applicant contends that the Body Corporate “is in desperate need of an
administrator”. An administrator will inter alia have the power to proactively attend to
reducing the arrears.
[8] In East Rock Trading 7 (Pty) Ltd and Another v Eagle Valey Granite (Pty) Ltd
and Others,1 the court stated the following:
1 (11/33767) [2011] ZAGPJHC 196 (23 September 2011).
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“[6] The import thereof is that the procedure set out in rule 6(12) is not there for the
taking. An applicant has to set forth explicitly the circumstances which he avers
render the matter urgent. More importantly, the Applicant must state the
reasons why he claims that he cannot be afforded substantial redress at a
hearing in due course. The question of whether a matter is sufficiently urgent
to be enrolled and heard as an urgent application is underpinned by the issue
of absence of substantial redress in an application in due course . The rules
allow the court to come to the assistance of a litigant because if the latter were
to wait for the normal course laid down by the rules it will not obtain substantial
redress.
[7] It is important to note that the rules require absence of substantial redress. This
is not equivalent to the irreparable harm that is required before the granting of
an interim relief. It is something less. He may still obtain redress in an
application in due course but it may not be substantial. Whether an applicant
will not be able [to] obtain substantial redress in an applicatio n in due course
will be determined by the facts of each case. An applicant must make out his
case in that regard.” [Emphasis added.]
[9] In Arcfyre International (Pty) Ltd and Others v Govender and Another,2 Adams
J referred to Mlezane and Others v South African Civic Organisation3 and stated that:4
“A party seeking to approach the Court on an urgent basis needs to justify why his
matter is so urgent as to warrant other litigants being shifted further down the queue.”
[10] Adams J also held that:5
“Moreover, the applicant must justify the invasion of the respondent’s rights to proper
notice and an adequate opportunity to prepare. … The applicant must fully set out the
facts supporting the conclusion advanced; mere lip service will not do. If there is some
delay in instituting the proceedings an applicant has to explain the reasons for the
delay and must also explain why, despite the delay, it claims that it cannot be afforded
substantial redress at a hearing in due course. This however does not mean that an
applicant can create its own urgency by simply waiting until the normal rules of court
2 (2023-098452) [2023] ZAGPJHC 1243 (31 October 2023).
3 (3208/18) [2018] ZAECGHC 114 (12 November 2018) at para 5.
4 Arcfyre at para 23.
5 Arcfyre at para 24.
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can no longer be applied and a delay in bringing the application, or self -created
urgency, is a basis for a court to refuse to hear a matter on an urgent basis.”
[11] In this matter, the applicant became aware of the appointment of the EMA,
which it seeks to challenge, on 21 October 2024 at the latest. The application is dated
22 November 2024, that is more than a month after the applicant first became aware
of the appointment of the EMA. There is, however, merit in the applicant’s explanation
that it started gathering evidence and that it was only on 14 November 2024, when it
was able to inspect the resolution, that it was able to truly ascertain the facts which led
to the decision of the Ombud to appoint an EMA. This matter does not appear to be
one where the urgency was self-created.
[12] However, the application fails to meet the second leg of the test for urgency in
that I am not persuaded that the applicant will not obtain substantial redress in the
ordinary course. On the applicant’s version , its application in terms of s 16 of the Act
“is ripe for hearing” and an administrator could be appointed “in a matter of a few
months”. It was argued on behalf of the applicant that the relief sought in the s 16
application is not the same as the relief sought in this application. That does, however,
not mean that the applicant cannot obtain substantial redress in the ordinary course.
[13] In addition, Management Rule 28(3)6 provides as follows:
“(3) An executive management agent –
(a) …
(b) is obliged to manage the scheme with the required professional level of
skill and care;
(c) is liable for any loss suffered by the body corporate as a result of not
applying such skill and care;
(d) …”. [Emphasis added.]
6 Prescribed in terms of s 10(2)(a) of the Act.
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Appearances
Counsel for applicant: Adv L de Wet
Instructed by: Verton Moodley and Associates Inc.
Counsel for fifth respondent: Adv A Gxogxa
Instructed by: Mduzulwana Attorneys Inc.
Date of hearing: 4 December 2024
Date of judgment: 20 December 2024