SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 7428/2024
In the matter between:
DR TSHEPO MOFFAT SHIKWANE First Applicant
MARABI LEVI LESIFI Second Applicant
NDUMISO LEON MASHAO Third Applicant
NTUKULOGA HENILE BOPAPE Fourth Applicant
ROSETTA MODITSANA MAKHAMATHE Fifth Applicant
HANS LEBOGE MAMABOLO Sixth Applicant
And
WOODHILL HOME O WNERS ASSOCIATION First Respondent
REG NO: 2007/031770/08
THE BOARD OF DIRECTORS WOODHILL Second Respondent
HOME OWNERS ASSOCIATION
LUFUNO NEVONDWE Third Respondent
S. MDHLULI Fourth Respondent
SP ENGELBRECHT Fifth Respondent
K ENGELBRCHT Sixth Responden t
A VAN DER MERWE Seventh Respondent
DR I PRIKRILOVA Eighth Respondent
BRADELEY MAPITI Ninth Respondent
M MAKHURA Tenth Respondent
N HLAISE Eleventh Respondent
TYSOCON (PTY) LTD Twelfth Respondent
CSOS Thirteenth Respondent
Delivered : This judgment is hand ed down electronically by circulation to the parties
through their legal representatives’ email addresses. The date for the hand -down is
deemed to be 12 February 2025.
JUDGMENT
Makoti AJ
Introduction
[1] Locus standi in judicio , or rather the rights of the applicants to stand and
litigate in court, and the non -joinder of parties with substantial interests in the
outcome
of the litigation are the topical issues at this stage of the application. They b ecame so
because the opposing respondents contend in these proceedings that the applicants
do not have the right to institute the application and that, if they have the right, they
have failed to join all the parties who would be affected by the outcome of the
application. Naturally, the applicants argue that these contentions are meritless and
should be dismissed with costs.
[2] The applicants instituted this application to assail a number of decisions and
actions taken by the Board of Directors of the Wo odhill Homeowners Association
(HOA). They also ask the court to remove the Directors, who are the third to the
eleventh respondents, from their positions amid allegations of impropriety.
Importantly, the applicants are asking for a declaration that the pro visions of the
HOA are inconsistent with the Constitution and accordingly invalid. Also, that the
MOI that was lodged with the Commission was not in line with Special Resolution 1
of on 22 November 2022 and, on that basis, it is pro non scripto .
[3] The f irst to the eleventh respondents are opposing the application as a
collective. Then, the twelfth respondent acting separately has also entered issue and
is also opposing the application. Only the thirteenth respondent has stayed clear of
the litigation by filing a notice to abide the outcome of the application. I will, for
purposes of convenience, refer to all the opposing parties as the respondents.
[4] In addition to the technical points that I have mentioned earlier, the application
is opposed also on t he merits. Both on the papers filed and during the hearing of oral
arguments, the respondents made common cause in respect of the two points in
limine and I will, for that reason, deal with them as if they had been raised by just
one party. To do them pr oper justice, I determine the points separately.
The locus standi objection
[5] To determine whether the applicants have established locus standi I need to
look into their founding papers, and any clarity proffered in their replying affidavits.
What ign ited this application appears to be the fines or penalties that the HOA has
imposed on the applicants, or some of them, in accordance with the terms of the
MOI. For a myriad of reasons, the applicants challenge, in the main, the validity of
the provisions of the MOI which permit the imposition of such fines or penalties
without prior hearing.
[6] In pith, the respondents say that the applicants have failed to allege and prove
their standing in court. To elucidate this contention the respondents pointed to the
fact that the applicants’ founding affidavit merely states that they are residents in the
estate, occupying the various properties that have been identified.
[6] This is a sample of how the averments read:
“5. The 1st Applicant is Dr Tshepo Moffat Shikwane, an adult male medical
practitioner, employed by the Department of Health Limpopo, and residing at
Erf 6 [...] Woodhill Estate, Bendor, Polokwane.
6. The 2nd Applicant is Marabi Livy Lesufi, an adult male pensioner,
residing at Erf 5 [...] Woodhill Estate, Bendor, Polokwane.”
[7] The respondents say that these allegations are not sufficient to sustain the
applicants’ locus standi in judicio . They contended that the applicants should have
presented facts in their founding papers, with proof to show that they are entitled to
litigate and to ask the court to the grant relief contained in the Notice of Motion. In
the founding affidavit the deponent placing himself on the pedestal makes mention
that ‘ some of us, such as the 2nd Applicant purchased sites at Woodhill … ’.
[8] Additi onally, the respondents argued that some of the respondents are co -
owners or joint property owners with other people and therefore, acting as individuals,
they do not have the required capacity to stand as litigants in this application. The
respondents th en isolated the sixth respondent and pointed out that the property in
which he resides is owned by a Trust, the Mamabolo Family Trust, and that the
trustees must litigate on the trust’s behalf. The applicants concede this point.
[9] When the applicants r eplied and clarified their positions with regard to
ownership of the properties, the respondents raised the contention that they are not
entitled to make a new case in reply. Apart from impugning the terms of the MOI, the
applicants also take issue with th e imposition upon them of penalty levies based on
the terms of the MOI, which they are seeking to assail in this application. The say,
inter alia , the following in their founding affidavit:
“83. The Director elected to impose fines in the sum of R1950 pe r person on
the 3rd, 4th and 5th Applicant, for allegedly being a nuisance, in that it is alleged
the stopped vehicles of members and went into members’ houses to inform
them of the AGM and request members to attend or those who are not
available to provid e proxy forms.”
[10] The applicants also rely on a circular published by CSOS, Circular No. 1,
which provides for the imposition of penalties by the HOA’s on members. The
circular provides that, much like the now constitutionally subsumed rules of natura l
justice, that trustees (in this case Directors) do not ‘ have the power to impose fines
and penalties on their own or to take any action against an owner or occupier - the
fair and equitable procedure as set out in the rules must have been followed ’.
[11] Furthermore, the applicants decrying the imposition of fines upon them
without a prior hearing, saying that:
“91. On affording the 3rd to 5th Applicant a hearing, they would have
established that the purpose of visiting members was not for self -interest but
to inform members of the impending AGM and issues regarding the MOI and
importance of providing proxies. The 2nd Respondent would have been aware
that they fell short of the right to impose a fine or penalty in terms of CSOS
Circular 1 of 2021, Cl ause 1 relating to fines and penalties.”
[13] Taking the matter further, the applicants state that:
“94. The Director on 3 June 2024 upon being challenged with contravention
of clause 2.4 retracted the fine and issued a “WARNING” which at the same
time called upon the three members to make representations. I am advised on
a conspectus of facts, this was a red airing, as a decision was already taken
and members are afforded an opportunity to make representations so as to
ensure that the Directors are a ble to produce a response of the members to a
fait accompli, just to return the same verdict of a fine.” ( Emphasis added )
[14] Recently the Supreme Court of Appeal, in upholding an appeal in Firm-O-Seal
CC v Prinsloo & Van Eeden Inc and Another ,1 reminded us of the long -established
test for determining whether a party to proceedings has the necessary locus standi .
The court held inter alia that:
“[6] Locus standi in iudicio is an access mechanism controlled by the court
itself. Generally, the requirements for locus standi are these: the plaintiff must
have an adequate interest in the subject matter of the litigation, usually
described as a direct interest in the relief sought; the interest must not be too
remote; the interest must be actual, n ot abstract or academic; and, it must be
a current interest and not a hypothetical one. Standing is thus not just a
procedural question, it is also a question of substance, concerning as it does
the sufficiency of a litigant’s interest in the proceedings. The sufficiency of the
interest depends on the particular facts in any given situation. The real
enquiry being whether the events constitute a wrong as against the litigant .”
(Emphasis added )
[15] The principles upon which the court relied to uphold the appeal are well -
known and accord with the dictum in Four Wheel Drive CC v Leshni Rattan NO .2 As
it was posited in these decisions, the enquiry to determine locus standi is fact -based
and the duty of the court is to establish from the pleadings before it w hether the party
that is required to prove standing has managed to demonstrate that it has sufficient
interest in the matter at hand.
[16] On the facts that were presented before me, if it was ever unclear as to the
identity of the applicants, at least in so far as the 2nd to 5th applicant are concerned,
the passages that I have referenced make clear any confusion. But the respondents,
1 Firm-O-Seal CC v Prinsloo & Van Eeden Inc and Another (483/22) [ 2023] ZASCA 107; 2024 (6) SA
52 (SCA) (27 June 2023) at para 6.
2 [2018] ZASCA 124 para 7.
despite challenging the applicants’ locus standi , are aware of the identities of the
applicants. They took the point oppor tunistically, and on the misconceived belief that
nothing in the founding papers has clothed the applicants with locus standi .
[17] In several of their own correspondences to some of the applicants, including
the second applicant, the respondents identif y them as owners. This is important
because membership of the HOA is based on ownership. It does not cover the
respondents with any measure of glory that they sought to dispute the applicants’
locus standi , and based on their mechanical reasoning that they did not allege in the
founding affidavit that they were owners or members of the HOA. I have shown the
instances were at least some of the applicants have been referred to as members. In
any event, it is evident that the appl ication was partially birthed by the imposition of
fines or penalties on the applicants at the hands of the respondents. The applicants
clearly have an adequate interest in the subject matter of the litigation
[18] in any event, to pass the threshold for becoming a member of an HOA is not
difficult to achieve. As it was explained by the court in Mtshali v Harbour Town
Homeowners Association3:
“[57] To become a member of the HOA, the appellant had to agree to become
and member, and her nam e had to be pl aced on the register. Once these
requirements are met, the appellant is a member of the HOA.”
[19] Here, the list of members is in the HOA and Directors’ possession and control.
They know who the applicants are - and it would be concerning if they did not - hence
they were even able to place it on record that some of them co -own properties with
other individuals who are not participating in the proceedings. It is unhelpful for the
respondents to plead that some of the applicants are joint owners and that, for that
reason, as an example, the second respondent does not have locus standi . What
they actua lly mean is that they are aware that the second applicant co -owns property
with his wife, with obligations or right jointly and severally, yet they say that he has
3 Mtshali v Harbour Town Homeowners Association (A2024 -034881) [2025] Z AGPJHC 84 (21
January 2025).
not established locus standi because the allegations of ownership have not been
made in the founding affidavit.
[20] The applicants also suggest that the ex post facto ratification of the second
applicant’s wife should be disregarded in that he is trying to make a new case in
reply. So too they challenge the clarifications of ownership which were made by the
other applicants as new cases in reply. The following passages from the Firm-O-Seal
CC v Prinsloo & Van Eeden Inc and Another authorities that I mentioned above are
important to mention:
“[8] On the strength of its finding on voidness, the high court concluded that
ex post facto ratification was not possible. As the former has been found to be
wanting, the latter must suffer a similar fat e. In any event, it is clear from the
common cause facts that the practitioner had consented to the institution of
the action. Significantly, in this regard, well before the institution of the action
the appellant’s attorney sought the practitioner’s conse nt. On 2 December
2020, the practitioner’s representative confirmed that the practitioner had
consented to the institution of the action. Thereafter, the appellant’s attorney
proceeded to issue the summons.
[9] Approximately two months later , there was a n intimation that the
practitioner may not have consented because his representative had
confused this action with another. However, once the practitioner became
aware that there may have been some confusion, he signed a power of
attorney authorising the i nstitution of the proceedings . Accordingly, the
members of the appellant had the requisite approval of the practitioner to
institute the action against the respondents.” (Emphasis added)
[21] Therefore, on the strength of the confirmations by the spouses of the
applicants that they have authorised the application, the continued contention that
the affected applicants did not make a case to be allowed to stand before court
cannot be accepted. It seems cynical to hold onto the contention and it must be
rejected. Apart from the sixth applicant, I am satisfied that the applicants have
sufficiently established their locus standi to be heard in this application.
Non-joinder point
[22] The respondents aver that the application ought to have been served on all
the homeowners individually. There are more than 600 homeowners at Woodhill
Estate, who together form the HOA. They argued, referencing section 15 of the
Companies Act,4 that because the MOI is binding between the members and the
HOA, it cannot be amend ed without members’ participation. As a result, the
argument went further, all the individual members ought to have been joined in the
litigation.
[23] The twelfth respondent sought to offer a solution that the applicants should
send out notifications to all the members and invite them to observe the application
at the HOA offices. Then, as it goes, it would be up to the members to decide
whether they are to participate in the legal proceedings.
[24] The test for joinder is not complicated and can best b e illustrated from the
authority in SA Riding for the Disabled Association v Regional Land Claims
Commissioner and Others5 which reads inter alia that:
“[10] If the applicant shows that it has some right which is affected by the
order issued, permission to intervene must be granted. For it is a basic
principle of our law that no order should be granted against a party without
affording such party a pre d ecision hearing. This is so fundamental that an
order is generally taken to be binding only on parties to the litigation.”
[25] For decades before the above authority it has been understood that an order
of court is unenforceable against a person who was not cited and served with court
papers, and who was not given an opportunity to participate in the proceedings.
4 Act No. 71 of 2008.
5 South African Riding for the Disabled Association v Regional Land Claims Commissioner and
Others 2017 (8) BCLR 1 053 (CC); 2017 (5) SA 1 (CC) (23 February 2017) para 10.
[26] The respondents contend that the individual property owners must be cited
and served with the court papers because their individual contracts with the HOA are
to be affected by amendments to t he MOI which the applicants are asking for from
the court. It is so that the applicants are challenging the validity of the MOI and on
various grounds. Chief amongst the grounds was that some of the provisions of the
MOI were not preceded by resolutions ta ken at a duly constituted annual general
meeting of the members.
[27] The applicants intend to argue at the appropriate time that the MOI contains
provisions which are invalid and, if successful, the offending provisions of the MOI
may be severed therefr om. This is what ignited the respondent’s contention that the
MOI or some of its terms will be amended without the individual homeowners voting
for such amendments.
[28] I understand an HOA to be a body that is composed by property owners
within an estat e. In that sense the HOA operates in a way akin to a voluntary
association. The purpose of an HOA is to administer and manage the communal
interests of owners in an Estate. It is the body that determines the levies, fines and
penalties that are payable by members as well as the rights, and obligations of
owners, and it also maintains communal property on behalf of the members. An HOA
achieves these things through elected Trustees or Directors, as the case may be.
[29] In Bushwillow Park Home Owners v Fern andes and Others6 it was held by
Sutherland J that:
“6. The estate consists of 591 plots upon which owners may build
freestanding homes. The estate is secured and gated. A condition of
ownership is th at the unitholder becomes subject to the authority of the
applicant in several prescribed respects. The relationship between the
applicant and all the 591 unitholders is regulated by contract. Self - evidently,
the sum of their reciprocal rights and obligat ions derives solely from contract.
The applicant is a representative body elected by all the unitholders .
6 Bushwillow Park Home Owners v Fernandes and Others (2014/31526) [2015] ZAGPJHC 250 (23
October 2015).
Decisions made by the applicant, through its elected office -bearers, are
therefore made within the compass of conferred authority. Axiomatically, the
limits of such authority are determined by the proper meaning to be given to
the instruments which articulate that authority.” (Emphasis added)
[30] The HOA and its directors have been granted authority to take representative
decisions on behalf of the m embers in matters of common interests. That, in my view,
includes the instances where litigation is instituted impugning the validity of the MOI
or any of its provisions. In any case, I fail to see how this application impacts on
individual contractual rig hts of the members. My view is that the application does not.
Disputes in which the validity of MOIs and their provisions are replete in our
jurisprudence. Invariably, the representative body of members is - and must be - cited
as a party in such proceedings .
[31] On the last issue pertaining to costs, I see no reason why they should not
follow the result.
Order
[32] I make the following order:
[a] The points in limine raised by the respondents as to lack of locus standi
in judicio and non -joinder are dismissed with costs.
[b] The respondents are jointly and severally liable to pay the costs
awarded in terms of paragraph [a] above, the one paying the others to be
absolved.
MOKGERWA MAKOTI
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
FOR APPLICANTS : MH MASILO
HLM MAMABOLO ATTORNEYS POLOKWANE
FOR 1ST TO 11TH RESPONDENTS : C GOUWS SC
BOSMAN ATTORNEYS POLOKWANE
FOR 12TH RESPONDENT : J OBERHOLZER
DE BRUIN OBERHOLZER ATT POLOKWANE
HEARD ON : 06 FEBRUARY 2025
DELIVERED ON : 12 FEBRUARY 2025