REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
(1) REPORTABLE : YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/N1/a')
02/03/202 ..... 5 __ ~--
DATE SIGNATURE
In matter between
MJEJANE GAME RESERVE HOMEOWNERS '
ASSOCIATION
and
COMMUNITY SCHEMES OMBUD SERVICES
ACTING CHIEF OMBUD
THEMBELIHLE MBHATHA N.O
COMMUNUTY SCHEME OMBUD SERVICES ,
KWA-ZULU NATAL REGIONAL OFFICE
MJEJANE RIVER LODGE PROPERTY (PTY) LTD
PETRUS ZELIE N.O.
JUDGMENT
LESUFI AJ CASE NO: 2023-059686
Applicant
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
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Introduction
[1] This is an application to revi ew and set aside the two decisions made by the
First to Third Respondent, the decisions are as follows:
1.1 The decision to accept the application for Disput e Resolution (CSOS
application 1237/MP/2023, hereinafter “ the application ’’) at the instance
of the Fourth Respo ndent on the 18 May 2023
1.2 The decision on the 25th May 2023 to refer the application for dispute
resolution directly to the Adjudicator.
[2] The Applicant seeks a declaratory order that the application has lapsed in terms
of in terms of in terms of section 41 of the Commu nity Schemes Ombud Services Act
9 of 2011(the CSOS Act)
[3] An order substituting the decision and/or direct reference of the First to the Third
Respondents to an Adjudicator with the following:
3.1 The Fourth Respondent’s application for the direct Disput e
Resolution in terms of the Act 9 of 2011 is rejected pursuant to
section 42 of the Act.
[4] The Applicant further seeks that the Respondents be interdicted and prohibited
to continue with the application for Dispute Resolution pending the adjudication of the
relief sought in par 1 -3 above.
[5] In the alternative to prayers 1 -4 above , that the application for Dispute
Resolution and/or direct reference to an Adjudicator by the First, Second and /or Third
Respondent be stayed in terms of Arbitration Act 42 of 1965 pending referral and
outcome of the dispute between the Applicant and the Fourth Respondent
(alternatively that the stay be ordered in terms of section 40 (c) read with section 42
(d) of the Act on an urgent basis if necessary.
Parties
[6] The Applicant is Mjejane Game Reserve Homeowner’ Association NPC , a non -
profit company with voting members, registered and incorporated in accordance with
the company laws of the Republic of South Africa, with registration number
2009/016655/ 08 and registered address at 38 Mostert street, Cherietta Building , Suite
7, Mbombela, Mpumalanga Province.
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[7] The First Respondent is the Community Schemes Ombud Services
established in terms of the Community Schemes service Act, 9 of 2011 (‘’CSOS Act’’ )
with the purpose to regulate the conduct of the parties with community schemes and
to ensure good governance, with its physical address at Berkley Office Park, 8
Bauhinia street , Highveld Technopark, Centurion , Gauteng Province.
[8] The Second Respond ent is Acting Chief Ombud , Thembelihle Mbatha N. O, in
her capacity as the Interim Chief Ombud of the First Respondent, with physical
address at Berkley Office Park, 8 Bauhinia street, Highveld Technopark, Centurion,
Gauteng Province.
[9] The Third Respond ent is Community Schemes Ombud Services, Kzn Regional
Office, the regional office of the First Respondent located in Kwazulu – Natal , with its
physical address at Aquasky Towers , 275 Smith Street, Durban Central , Kwazulu -
Natal Province.
[10] The Fourth Respondent Is Mjejane River Lodge Property (Pty) Ltd, a private
company duly incorporated in terms of the laws of the Republic of South Africa, with
registration number 2007/025318/07 , and registered address at 381 Ontekkers Road,
Florida Park, Roodepoort, Gauteng Province.
[11] The Fifth Respondent is Petrus Zeelie N.O , cited herein in his representative
capacity as the court appointed interim administrator of the Mjejane Trust (“the trust” )
with his current business situated address at 381 Onte kkers Road, Florida Park,
Roodepoort, Gauteng Province.
[12] The First to the Second Respondent will be referred to as “The Respondents,
throughout the judgment, safe for where the court makes reference to the First or
Second Respondent individually.
Back ground a nd Facts
[13] On the 21 April 202 3, the Fou rth Respondent made an application to the First
Respondent for dispute r esolution by completing a form “ the dispute resolution form”
(the form) , setting out 17 disputes for conciliation or ar bitration against the applicant.
In the application to the First Respo ndent, the Fourth Respondent sought the following
relief in terms of Section 39 of the CSOS Act:
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8.1 the relief in terms of financial issues;
8. 2 scheme g overnance issues;
8.3 meeting issues;
8.4 General and other issues;
[14] On the 18th of May 2023 the First Respondent, acting through the S econd
and/or Third Respondents accepted the application for the Dispute Resolution ( under
CSS Application 1237 MP/23) initiated by the Four th Respondent.
[15] In order to assist the Fourth Respondent in the resolution of the dis pute, the
First Respondent requested the Applicant to furnish written submission in terms of
section 43 of the CSOS Act, regarding the application by the 24th of May 2023. On the
25th of May 2023, the Applicant received an email from the First Respondent informing
them that they failed to provide a response, accordingly the dispute was therefore
referred directly to a djudication in ter ms of Section 48 of the CS OS Act.
[16] On the 25th of May 2023 the Applicant sent a letter to the First Respondent in
response to Section 43 notice in terms of the CSOS Act, acknowledging receipt of the
copy of the Fourth Respondent ‘ s application for dispute r esolution dated 21 April
2023.The Applicant further acknowledged request for submissions in response to the
application made by the Fourth Respondent on or before 24 May 2023.
[16] The Applicant informed the First Respondent that they are of the view that,
based on the relief sought, the application should not have been entertained by First
Respondent and that the First Respondent was obligated to reject the application in
terms of Section 42 of the CSOS Act and therefore should have been rejected.
[17] On the 27th of June 2023, the Applicant instituted the current review application
before this court seeking inter alia that the Respondents’ decision s to accept and refer
the d ispute for a djudication be reviewed and set aside.
Applicant’ submissions
[18] The Applicant contends that the First Respondent had to reject the application
in terms of section 42 of the CSOS Act because the relief sought was not in its
jurisdiction in terms of Section 39 . This is because the basis of the alleged dispute
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sought by the Fourth Applicant concerned domestic disputes not membership
disputes. Such dispute ought to be resolved in terms of an arbitration entered into
between the parties in terms of the Memorandum of Incorporation (MOI) . The Fourth
Respondent omitted to menti on in the form that there is an existing internal step to
take as a dispute resolution mechanism before approaching the First Applicant.
[19] The Applicant further argues that the First Respondent ‘s mandate is to decide
on personal and individual interest and rights a ccording to the CSOS Act, not a dispute
resolution such as this one where the Fourth Respondent instituted a dispute
resolution on behalf of its members which it failed to identify such members and the
basis upon which it is authorised to repr esent such members. The Applicant argues
that the motive behind the institution of the dispute resolution before the First
Respondent was to declare the MOI invalid , and to circumvent the role of the Applicant
by brining a domestic dispute under the guise of a membership dispute .
[20] The Applicant also avers that the condonation granted by the Respondents
should not have been a llowed on the grounds that it is unjust and it erase s the proper
management of the Applicant and it was not based on proper grounds.
[21] With regard to the referral for adjudication, the Applicant submits that the
referral of the dispute for adjudication by the First Respondent was contrary to the
relief s ought in the form, and it relied on the wrong authority that has been overturned
by the Courts.
First to Second Respondents’ submissions
[22] The Respondents are opposing the application to review and set aside their
decision to accept the application fo r dispute resolution by the Fourth Res pondent and
to refer the application for adjudication. They argue although the Second Respondent
acts in terms of the provisions of t he CSOS Act, n ot all the decisions she make s
constitute an administrative act in ter ms of the Promotion of Justice and Administrative
Act 3 of 2000 (PAJA). The Second Respondent took a decision to accept the Fourth
Respondent’ s application after consid ering the relief sought and confirmed that it fell
under the categories of the prayers in terms of section 39 of the CSOS Act. Further
the Second Respondent took a decision to directly refer the matter for adjudication
because no conciliation process was conducted in accordance with the CSOS Act and
the CSOS Directives. The Applicant was provided with the Fourth Respondent’s
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application to make submissions in terms of section 43 of the CSOS Act in order for
the Applicant’s side to be heard, however the Applicant did not file the response.
Instead the A pplicant sent a letter through its attorney highlighting that the
Respondents should not have accepted the Fourth Respondent’s application. On this
basis , the Second Respondent argue that the Applicant misconstrued the meaning of
section 42(d) which requir es “satisfaction” from the Second Respondent to refer a
dispute to the court of law or tribunal with competent jurisdicti on. According to the
Second Respondent “satisfaction ” is subjective.
[23] The filing of the application was condoned after considering the contents of the
condonation application which stated that if the application is not condoned the
Applicant will continue with its oppression, reckless trading, insolvency and
unreasonable actions, which will as a result prejudice the Fourth Respondent and the
shareholders , and probably have a long term effect on them.
[24] As far as the dispute mechanism is concerned, the Respondents contend that,
the parties’ MOI does not bind the Second Respondent as it is bound by the provisions
of the CSOS Act and the C SOS directive. Even so, she had no knowledge of the MOI
as this was not raised by the App licant . As such , a preliminary iss ue should be
determined by the A djudicator in the adjudication process.
Issues
[25] The main issue for contention are as follo ws:
25.1 Whether the decisions of the F irst to the T hird respondents to accept the
application for dispute resolution and to directly refer it to the A djudicator
are reviewable in terms of PAJA.
25.2 Whether the Applicant exhausted internal remedies.
The Law
[26] In terms of section 3 (1) of PAJA :
“Administrative action which materially and adversely affects the rights or legitimate
expectations of any person must be procedurally fair .”
[27] An administrative action is defined in terms of section 1 as follows:
“any decision taken, or any failure to take a decision, by —
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(a) …
(I)…
(ii)…
(b) a natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in terms of an
empowering provision,
[28] Section 1 further defines a decision to mean :
“…any decision of an administrative nature made, proposed to be made, or required to
be made, as the case may be, under an empowering provision, including a decision
relating to —
(a) making, suspending, revoking or refusing to make a n order, award or
determination;”
Application
1.Whether the decisions of the First to the Third respondents to accept the
application for dispute resolution and to directly refer it to the Adjudicator are
reviewable in terms of PAJA.
[29] At the onset, the Second Respondent argue s that not all her actions are
reviewable in terms of PAJA, although her actions are derived from the provisions of
the CSOS Act. However, the First Respondent a s an administrative body with primary
powers to receive and resolve disputes related to community sche mes,1 has discretion
whether to accept and to refer the matter for adjudication ,2 also ensuring that the
parties involved are given an opportunity to be heard3 in accordance with the principles
of proce dural fairness in terms of section 3 of PAJA. In performing such duties, the
First Respondent delegates its power in terms of the empowering provisions to the
Second Respondent to perform such duties.4 Therefore the decision to accept the
Fourth Respondent ‘s application and to re fer it to the A djudicator was an
administrative decision taken by the First Respondent and its delegates. The Second
Respondent was acting on behalf of the First Respondent; thus her decision
constitutes an administrative act revie wable in terms of PAJA.
1 Section 38 of the Community Schemes Ombud Services Act, 9 of 2011.
2 Section 47 and 48 of the Community Schemes Ombud Services Act,9 of 2011.
3 Section 43 of the Community Schemes Ombud Services Act, 9 of 2011.
4Section 6(2)(a)(I) and (ii) of the Promot ion of Administrative Justice Act , 3 of 2000.
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[30] The main issue for determination in this court is whether such decisions are
reviewable? As section 3 provides above . The requirement here, is that procedural
fairness must be adhered to when an administrative decision taken adversely affects
the rights or legitimate expectation of any person.5 In Law Society v Law Society,
Northern Provinces (I ncorporated As The Law Society o f The Transva al) v Maseka
and Another6 the court said as follows in deter mining the entitlement for the application
of the principles of natural justice:
“… for a person to be entitled to the application of the principles of natural justice or to
procedurally fair administrative action, the decision or conduct must at least mat erially
and adversely affect that person's rights. ”7
[31] The Applicant set out two decision s of an administrative nature in its papers,
however as far the rights and legitimate expectations are concerned , the Applicant did
not put it before the court and in its papers whether the decisions of the Respondents
adversely affected its rights, other than inter alia the averments that the First
Respondent had no jurisdiction to accept the application and to refer it for adjudication
on the grounds that the disputes contained in the form are domestic disputes and that
there is an arbitration agreement in terms of the MOI in place to deal with internal
issues between the parties. In my view accepting and referring the application for
adjudication had no material and adverse effect to the Applicant’s rights. The issue
raised by the Applicant must be determined by the Adjudicator. Whether the disputes
are domestic or membership disputes have already been correctly determi ned by the
Respondents when accepting the application. What was left was for the Applicant
through its submissions to oppose such.
[32] In terms of section 42 of the CSOS Act the First Respondent i s to reject a relief
sought if it is not within its juris diction. It was contended that the relief so ught fell
squarely within the jurisdiction of the First Respondent as it related to financial issues
behavioural issues, governance issues, meeting issues, private and common area
issues and in respect of general and other issues as stipulated in section 39 of CSOS.
Based on the disputes outlined in Annexure A, the application was accepted and
thereafter condoned considering the grounds laid by the Fourth Respondent.
5 Walele v City of Cape Town and Others 2008 (6) SA 129 (CC); 2008 (1 1) BCLR 1067 (CC) at para 28.
6 2005 (6) SA 372 (BH ).
7 Id at para 382.
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Thereaf ter, the Applicant was required in term s of section 43 notice to make
submissions to the averments made in the app lication, in accordance with the principle
of audi alterum partem rule, but the Applicant did not engage. The requirement of
procedural fairness was fully observed by the Respondents.
[33] With regards to the decision to refer the application for adjudication, section
48(1) of the CSOS Act, is clear, the First Respondent must refer the application to an
adjud icator if the concili ation fails. In this case there is no evidence that indicates that
a conciliation was held. Ho wever, the First Respondent referred the matter directly to
the adjudicator upon exercising its discretion in terms of section 47 and conside ring
the factors under the CSOS Directive to refer a matter for adjudication. Of importance
is to note clause 21.5 .8 of the CSOS directives as it gives the First Respondent the
powers to refer a matter to the adjudicator if the respondent ( in this case the Applicant)
fails to attend the conciliation. Thus, it was well within the powers of the First
Respondent to refer the application to the Adjudicator.
Whether the Applicant exhausted internal remedies
[34] The Respondents argue that the Applicant did not exhaust internal remedies.
The Applicant did not make submissions in terms of section 43 when he was requested
to do so. It is further contended alternatively the Applicant could make section 43
submissions under the jurisdiction of the Adjudicator. This is an internal remedy
available to the Applicant. Under the auspice of PAJA in terms of section 7(2) which
provides as follows;
“(a) Subject to paragraph ( c), no court or tribunal shall review an administrative
action in terms of this Act unless any internal remedy provided for in any other
law has first been exhausted.
(b) Subject to paragraph ( c), a court or tribunal must, if it is not satisfied that any
internal remedy referred to in paragraph ( a) has been exhausted, direct that
the person concern ed must first exhaust such remedy before instituting
proceedings in a court or tribunal for judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the
person concerned, exempt such person from the obligation to exhaust any
internal remedy if the court or tribunal deems it in the interest of justice.”
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[35] The Constitutional Court in Koyabe and Others v Minis ter for Home Affairs and
Others ;8 held as follows with respect to exhausting internal remedies:
“Thus, unless exceptional circumstances are found to exist by a court on application
by the affected person, PAJA, which has a broad scope and applies to a wide range
of administrative actions, requires that available internal remedies be exhausted prior
to judicial review of an administrative action.”9
[36] The constitutional court continued to add as follows regarding utilising the
internal remedies:
“Internal remedies are designed to provide immediate and cost -effective relief, giving
the executive the opportunity to utilise its own mechanisms, rectifying irregularities first,
before aggrieved parties resort to litigation. Although courts play a vital role in providing
litigants with access t o justice, the importance of more readily available and cost -
effective internal remed ies cannot be gainsaid…
The duty to exhaust internal remedies is therefore a valuable and necessary
requirement in our law. However, that requirement should not be rigidly imposed. Nor
should it be used by administrators to frustrate the efforts of an aggrieved person or to
shield the administrative process from judicial scrutiny. PAJA recognises this need for
flexibility, acknowledging in section 7(2)(c) that exceptional c ircumstances may require
that a court condone non -exhaustion of the internal process and proceed with judicial
review nonetheless.36 Under section 7(2) of PAJA, the requ irement that an individual
exhaust internal remedies is therefore not absolu te…
What constitutes exceptional circumstances depends on the facts and circumstances
of the case and the nature of the administrative action at issue. Thus, where an internal
remedy would not be effective and or where its pursuit would be futile, a court may
permit a litigant to approach the court directly. So too where an internal appellate
tribunal has developed a rigid policy which renders exhaustion futile .”10
[37] As the C onstitutional Court emphasised, although the internal remedies are
cost effective they should not be rigidly imposed. The courts must consider and
8 2009 (12) BCLR 1192 (CC) ; 2010 (4) SA 327.
9 Id para 34.
10 Id para 35 -39.
determine exceptional circumstances that warrant direct access to courts, and allow
the litigant to bypass internal remedies.
[37] In this circumstances , the First Responden t has internal remedies effective to
determine the disputes between the Applicant and the Fourth Respondent.There is
clear indication that the Applicant is allowed to make its submissions before the
Adjudicator and raise the issues as averred to above to be determined through the
adjudication process. In my view there are no exceptional circumstances that warrants
the Applicant to bypass these internal remedies. Thus, non-exhaust ion of the internal
remedies cannot be condoned .
Order
[38] In the results I make the following order:
1. The application to review and set aside the First to the Third
Respondent's decisions is dismissed
2. The decision to refer the application to the adjudicator in terms of Section
48 Community Schemes Ombud Services 9 of 2011 and Community
Schemes Ombud Services directives is upheld. The disputes between
the Applicant and the Fourth Respondent will be determined by the
Adjudicator.
3. Applicant to pay costs on scale A
Appearances
For the Applicant:
Instructed by: B LESUFI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION , PRETORIA
Adv. J De Beer SC
AJ Van Rensburg INC
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For Respondents: K. Mny andu
Instructed by: Lusenga Attorneys INC
Date of hearing: 22 October 2024
Date of judgement: 3 February 2025