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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN

CASE NO: 11936/23


In the matter between:

THE TRUSTEES OF THE BODY CORPORATE APPLICANT
OF SWEETWATERS

and

LUXMI DEVI CHETTY FIRST RESPONDENT

COMMUNITY SCHEMES OMBUD SERVICE KZN SECOND RESPONDENT

SUGANDHINI RAJARUTHNAM N.O. THIRD RESPONDENT

ORDER


The following order is granted:


1. The applicant's late lodgement of this appeal is condoned.

2. The appeal in terms of section 57 of the Community Schemes Ombud Service
Act 9 of 2011 is upheld.

3. The adjudication order of the third respondent dated 28 June 2023, under the
auspice of the second respondent under the case number CSOS10681/KZN/22 is
hereby set aside.

4. The first respondent is directed to pay costs of suit on scale B


JUDGMENT


PLOOS VAN AMSTEL AJ

[1] This is an appeal in terms of s 57 of the Community Schemes Ombud Service
Act, 9 of 2011 ("the Act").

[2] The trustees of the Body Corporate of Sweetwaters ("the Body Corporate")
are cited as the applicant. It is common cause that the Body Corporate falls within
the meaning of the Act. The first respondent is Lexmi Devi Chetty, who is neither a
member of the applicant nor a resident within the scheme. The second respondent is
the Community Schemes Ombud Service a juristic person established in terms of s
3(1) of the Act which, in terms of s 4 thereof has the function of developing and
providing a dispute re solution service as contemplated by the Act ("the Community
Schemes Ombud"). The third respondent is the Community Schemes Ombud
Adjudicator, Sugandhini Rajaruthman ("the adjudicator"). The second and third
respondents do not oppose the relief sought and have elected to abide the decision
of this court.

[3] Acting on a general power of attorney dated 14 February 2019, in terms of
which the first respondent was appointed as Dhesigan Gounden's agent to manage
all matters in regard to his investment property being Flat 811 in the scheme, she
lodged an application for dispute resolution with the Community Schemes Ombud
under case number CSOS10681/KZN/22.

[4] After recording that the dispute lodged as aforesaid was forwarded to the
applicant's trustees for their comments and version in terms of the issues raised by
the first respondent in the dispute, and that "no replies from the Respondents (being
the trustees of the applicant herein) disputing the allegations raised by the" first
respondent, the adjudicator considered he dispute and granted an adjudication order
by default on 28 June 2023. The salient parts of which reads as follows:

“…
48.3. The order in terms of section 39(4)(a) is granted in that the respondent are
(sic) to call a general meeting of its members to finalize the 2022 AGM at a
scheduled time suitable to all members.

48.4. The order in terms of section 39(4)(b) is granted in that the 2022 AGM was
not validly convened as there was no quorum.

48.5. The order in terms of section 39(4)(c) is granted in that an order declaring that
the resolution purportedly passed by the Respondent at the 2022 AGM is (i) void and
(ii) invalid.

48.6. The order in terms of section 39(7)(a) is granted in that the Applicant was
wrongfully denied access to copies of the 2020/2021 audited financial statements
and the 2021/2022 budgets of the sectional scheme.

48.7. The Respondent have to comply within 30 days of this order to reconvene the
2022 AGM and to provide the Applicant with the requested documentation of the
sectional scheme... "

[5] On 18 September 2023, subsequent to the granting of the adjudication order,
and without notice to the applicant, the adjudication order was made an order of this
court pursuant to s 56(2) of the Act.

[6] The Body Corporate, aggrieved by the decision of the adjudicator, launched
this application on 25 October 2023 in terms of which it seeks to appeal, alternatively
review, the adjudication award.

[7] There are two issues for determination, the first being whether the applicant's
late lodgement of this appeal should be condoned, and the second issue being
whether the adjudicator erred on a point of law when determining the first
respondent's complaint against the applicant, resulting in the award that was issued.

Condonation
[8] Section 57(2) of the Act provides that an appeal such as the present one must
be lodged within 30 days after the date of delivery of the order of the adjudicator.
Notably, a review does not have prescribed time limits within which it ought to be
instituted, save that it should be done within a reasonable time.

[9] As the issue for determination in respect of the adjudication award is on a
point of law, this matter falls within the ambit of both an appeal in terms of s 57 and a
review. In Club Kerkira (Ply) Limited v Trustees of Club Kerkira Body Corporate and
Others,1 it was held that there are two propositions which have a bearing on an
application for condonation of this nature:

"Firstly, it is clear that the Act is designed to provide an at least relatively inexpensive
and speedy resolution of disputes arising within community living schemes. The
confinement of appeal rights to questions of law, and the fixing of a time limit on the
institution of such appeals reflect the same philosophy. Secondly, the lodgement of a
review is not confined to the aforesaid 30 -day time period and is not subject to the
same confinement on questions of law only."

[10] It is common cause that the applicant did not lodge this appeal within the
prescribed 30-day period. The first respondent objected to the late lodgement of the
appeal, and notwithstanding the applicant's initial persistence that condonation was
not necessary, Mr Blomkamp correctly conceded that condonation would be
necessary in circumstances where an appeal in terms of s 57 of the Act is not lodged
within the prescribed 30 -day period. Whilst the applicant's founding affidavit details
all steps taken in pursuance of the setting aside of the adjudication order, its notice

1 Club Kerkira (Pty) Limited v Trustees of Club Kerkira Body Corporate and Others [2024] ZAKZDHC
40.
of motion failed to seek relief pertaining to condonation. Mr Blomkamp at the
commencement of his argument, on behalf of the applicant, sought an amendment
to this effect from the bar, and fortunately for the applicant the first respondent did
not object to the proposed amendment. That amendment was accordingly granted to
include a further prayer in the notice of motion that the applicant's failure to launch its
appeal within the time limit set by s 57(2) of the Act be condoned.

[11] The applicant contends that the adjudication order of 28 June 2023 did not
come to its attention until 18 July 2023. It is not in dispute that the applicant did not
receive notice of the dispute or any further communication in that regard, specifically
a notice of set down for the hearing thereof. Upon becoming aware of the
adjudication order, and by way of notice dated 27 July 2023, the applicant instituted
a rescission application purportedly in terms of item 25.3 of the second respondent's
"practice directive on dispute resolution for the setting aside of an adjudication
order".

[12] Notwithstanding receipt of the applicant's rescission application, no decision
was made and/or communicated to the applicant by the second respondent following
the institution of its rescission application. After waiting for a response from the
Community Schemes Ombud regarding its rescission application, to no avail, the
applicant launched this application on 25 October 2023, albeit approximately three
months after the adjudicator order was received by the applicant.

[13] The first respondent's opposition to the application for condonation was
predicated on her contention that the delay in the lodging of this application was
inexcusable as it was caused solely by the applicant incorrectly applying for the
recission of the default adjudication award instead of instituting this appeal within the
30 days provided for in the Act, as advised and recorded on the last page of the
adjudication award.

[14] The court, in Baxter v Ocean View Body Corporate and Others ,2 cited with
approval in this division in Club Kerkira (Pty) Limited v Trustees of Club Kerkira Body

2 Baxter v Ocean View Body Corporate and Others 2023 (2) SA 205 (WCC) para 22.
Corporate and Others,3 was tasked to consider whether it is within a court's powers
to condone non -compliance with statutorily prescribed time limits. With reference to
Mohlomi v Minister of Defence 4, where it was noted that courts do not have an
inherent power to condone non -compliance with statutorily prescribed time limits,
Binns-Ward J (with whom De Wet AJ concurred) concluded that upon a proper
contextual consideration of the provisions of s 57(2), the court does have the power,
on good cause shown, to condone non-compliance with the 30-day time limit.5

[15] Accordingly, it is necessary to decide whether the applicant has shown
sufficient good cause for the granting of condonation. The facts usually relevant to
the issue of condonation were enunciated in the judgment of the then Appellate
Division in Melane v Santam Insurance Co Ltd.6 Among the facts usually relevant are
the degree of lateness, the explanation therefor, the prospects of success, and the
importance of the case.

[16] The explanation proffered by the applicant for its failure to lodge this appeal
timeously was its election to institute a rescission application, which it instituted on
27 July 2023, shortly after the adjudication order came to its attention. In that
rescission application, as is repeated in its founding affidavit herein, the applicant
explained that it was not in wilful default, having received neither the notice of
dispute lodged by the first respondent nor the notice of the set down thereof. The
aforesaid explanation was not disputed by the first respondent, with the only issue
taken by her being that the applicant was the author of its own misfortune by electing
to institute rescission proceedings prior to instituting this appeal, thus causing a
delay.

[17] I am of the view that for the interests of justice to prevail condonation must be
granted, as the level of prejudice suffered by the applicant, confronted as it is with
the adjudication order, far exceeds that of the first respondent who was at all times

3 Club Kerkira (Pty) Limited v Trustees of Club Kerkira Body Corporate and Others [2024] ZAKZDHC
40.
4 1977 (1) SA 124 (CC) para 17.
5 Kobi v Trustees, De La Rey Body Corporate and Others 2024 (1) SA 174 (FB).
6 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532B-F.
kept abreast of the steps taken by the applicant since the adjudication order came to
its attention.

Grounds upon which the applicant seeks the setting aside of the adjudication
order

[18] The main ground of appeal and/or review, as alleged by the applicant is that
the adjudicator erred in entertaining the first respondent's dispute as lodged with the
Community Schemes Ombud, as the first respondent lacked the necessary standing
to lodge such a dispute. As this is a point of law, it falls within the ambit of an appeal.

[19] The basis upon which the first respondent contended that she enjoyed the
requisite standing to apply for dispute resolution Community Schemes Ombud
Service was predicated upon the power of attorney dated 14 February 2019 provided
by her husband, Dhesigan Gounden, who is a member of the applicant, and notably
not by any independent rights personal to her.

[20] Whilst the first respondent in argument submitted that she did not lodge the
dispute with the Community Schemes Ombud Service in her own name, this was not
averred in her answering affidavit, nor was a copy of the referral form placed before
court to evince that the dispute was not referred to Community Schemes Ombud in
the first respondent's personal capacity. The adjudication order further provides
otherwise when one has regard to the repeated reference to the "applicant" as the
first respondent therein. For example, in paragraph 1 thereof it is recorded that the
applicant in the dispute is "Luxmi Devi Chetty who is acting in terms of a power of
attorney on behalf of her spouse Mr D. Gounden, the registered owner of unit 8 […]
S[…] , 1[...] B[...] Road, Amanzimtoti, Durban, KwaZulu -Natal". Paragraph 5 further
details the relief sought by the applicant, with reference to the first respondent
herein. Finally, under the heading of "summary of relevant evidence", the adjudicator
repeatedly referred to the applicant in the dispute as being the first respondent.

[21] Accordingly, ex facie the adjudication order, there can be no doubt that the
dispute was lodged by the first respondent. I should state that the first respondent, in
argument, averred that the application lodged with the second respondent identified
her husband as the applicant in that dispute.

[22] Insofar as the first respondent's locus standi to apply for dispute resolution, Mr
Blomkamp correctly referred to and relied upon Durdoc Centre Body Corporate v
Singh7 where the question regarding locus standi was considered by a Full Bench of
this Division. The court held that "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".8

[23] Section 38(1) of the Act provides that "any person may make an application
[for adjudication of a dispute] if such person is a party to or affected materially by a
dispute".

[24] In Durdoc Centre the court was tasked with determining whether a party,
acting on an authority given by the property owner, had the requisite standing to refer
a dispute to the Community Schemes Ombud with reference to s 38(1) of the Act.
With reference to Watt v Sea Plant Products Bpk and Others9 the distinction between
locus standi and authority was explained as locus standi being an access
mechanism controlled by the court itself with the standing of a person not being
dependant on authority to act. A party's standing depends on whether the litigant is
regarded by the court as having a sufficiently close interest in the litigation.

[25] The Full Bench in Durdoc Centre concluded that the applicant therein, who
was authorised to apply to the Ombud on behalf of a property owner, being the
company with whom he was employed, lacked the necessary standing to institute
the dispute that was adjudicated before the Ombud as he was not a person who
could make such application as envisaged by s 38(1) in that he was neither the
owner of a unit in that body corporate nor did he have a material interest in the
scheme.


7 Durdoc Centre Body Corporate v Singh 2019 (6) SA 45 (KZP).
8 Ibid para 16.
9 [1998] 4 All SA 109 (C) at 113h.
[26] This court's aforesaid reasoning applies equally to the present matter. The
first respondent is neither the owner of a unit, nor does she enjoy a material interest
in the scheme, as she does not reside within the scheme. The dispute was lodged by
the first respondent with the Community Schemes Ombud on the strength of the
power of attorney provided by her husband to whom she is married by customary
rites. There is nothing further before me to suggest that the marriage was duly
registered, or as to the marital regime governing their union.

[27] It follows then that she does not have the necessary standing to lodge a
dispute with the second respondent.

[28] The adjudicator, aware of the fact that the first respondent lodged the dispute
on the basis of the general power of attorney, in her capacity as an agent of the unit
owner, ought to have questioned and considered the first respondent's standing to
refer such dispute.

[29] Errors of law made by adjudicators result in decisions which are not in
accordance with law. The legislation recognises that such decisions should not be
allowed to prevail and therefore provides for appeals. It is self -evident that some
decisions which might be made by adjudicators will have long -term effects which
may indefinitely dictate the course of the relationship between members of
community schemes in a manner which is not consistent with the law. That would be
an undesirable outcome inconsistent with the purpose of the Act.

[30] In the circumstances, the first respondent did not have the necessary
authority to lodge a dispute such as is the subject matter of this appeal. The
adjudicator's failure to satisfy herself that the applicant to the dispute before her had
the requisite locus standi to institute the dispute, erred in law by entertaining such
dispute.

[31] Accordingly, the appeal must succeed.

Order
[32] In the result the following order is made:

1. The application for condonation of the late lodgement of this appeal is
granted.
2. The appeal in terms of section 57 of the Community Schemes Ombud Service
Act 9 of 2011 is upheld.
3. The adjudication order of the third respondent dated 28 June 2023, under the
auspice of the second·respondent under the case number CSOS10681/KZN/22 is
hereby set aside.
4. The first respondent is directed to pay the costs of suit on scale B.

PLOOS VAN AMSTEL AJ

Case information

Date of Hearing: 05 November 2024

Date of Judgment: 05 December 2024

For applicant: Adv Blomkamp

Instructed by: Pitcher and Fismer
Applicant's attorneys
4 Forest Road, Prestbury
Pietermaritzburg
(Ref: Mr Pitcher)
Tel: 033 344 2966/7
Email: litigation@pandfattorneys.co.za
For respondent: Luxmi Devi Chetty
Instructed by: First Respondent
Cellphone: 079461594
Chetty.lux@gmail.com