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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 17928/2022
In the matter between
ALOE HOMEOWNER’S ASSOCIATION , Applicant
ALBERTIN IA
and
THE TRUSTEES FOR THE TIME BEING OF First Respondent
THE LIEBENBERG TRUST [IT1727/95]
NOLENE OWEN N.O. Second Respondent
JUDGEMENT ELECTRONICALLY DELIVERED ON 16 MAY 2025
MTHIMUNYE , AJ
Introduction
[1] There are two applications under case number 179 28/2022 before this court.
In the main applicatio n, Aloe Park Homeowners Association (“Homeowners
Associatio n”), as the Applicant who primarily seeks a mandatory interdict, compelling
the Trustees for the time being of the Liebenberg Trust and Nolene Owen N. O (“the
Respondents”) to transfer ownership of Erf 3[...] A[...] , situated within Aloe Park
Housing Development , Western Cape, (“Erf 3[...]”) as well as declaratory orders .
[2] The declaratory orders sought by the Applicant in the Notice of Motion read as
follows:
“1. Declaring Erf 3[...] and Erf 2[...] as common property in the Aloe
Housing Development;
2. Declaring that the provisions of the Aloe Park Home owners
Constitution is binding on both the Applicant and the Respondents;
3. Compelling the Respondents to take the necessary steps within 14
days of the grant of the Court order, to facilitate transfer of the section
of property known as Erf 3[...] and Erf 2[...] to the Applicant ;
4. Should the Respondents’ fail to comply with the order , the Sheriff is
authorized to sign any and all necessary documents to give effect to
the transfer of the property to the Applicant in terms of the sale
agreement between the parties ;
[3] The Respondents opposed the application and filed a counter application
together with an answering affidavit, which also s erves as the ir founding affidavit to
the counter application. The applicant subsequently filed a replying affidavit to the
answering affidavit, whereas the respondents filed no reply to the applicant’s replying
affidavit.
[4] In the counter application, the Applicant s are the Trustees for the time being of
the Liebenberg Trust and Nolene Owen N.O. and the Respondents are the Aloe
Homeowners Association. In this counter application the Applicants who are cited as
the Respondents in the main application sought the following relief:
“1. Declaring the amended Constitution of the Applicant purportedly
adopted on 12 November 2021 as per Annexure “I” to the Founding
Affidavit to be void and of no force and effect.
2. Declaring that the Constitution of the Applicant dated 7 October 2008
as contained in Annexure “D” to the Founding Affidavit shall remain
effective until it had been lawfully amended or substituted.
3. Directing the First Respondent to lodge an application for the
subdivision of Erf 3[...] in the Aloe Park Housing Development,
Albertinia within 90 days from date of this Order, the costs thereof to be
paid by the Applicant .
4. Directing the Applicant to pay the costs of this application.
5. Affording the Respondents such further and alternative relief as this
Honourable Court may deem just. ”
[5] The Hessequa Municipality (“Municipalit y”) filed a notice to abide with this
court’s decision together with a report on 24 March 2024, wherein they stated that
they had no objection to the relief sought by the Applicant . In addition , they also filed
a report which stated that Erf 3[...] (“the Erf”) should be regarded as common
property and be transferred to Aloe Homeowner’s Association.
[6] On 18 March 2022 as evidenced at Annexure “I” to the applicants founding
affidavit the Municipality sent an email to the Homeowners Association informing
them that the Municipality has approved the Homeowners submitted Constitution for
Aloe Park, Erf 1[...], A[...] .
Background
[7] It is common cause that t he First Respondent (“the Trust”) purchased the
property known as Erf 1[...] A[...] situated within the municipal area of Hessequa
Municipality and successfully applied for its subdivision under general plan SG
number 5477/2007 which was held in terms of a Deed of Transfer number
T95745/2005. The afores tated subdivision of Erf 1[...] A[...] was intended for the
establishment of a housing development scheme as inter alia contemplated in the
Hessequa Local Municipality : Land use Planning Ordinance , 2015 read with
Provincial Ordinance 15 of 1985 of the Western Cape Province.
[8] The Trust , being the developer provided the required roads and services infr a
structure and put up for sale as residential properties the subdivided erven within the
development, with the exception of inter alia erven number 3[...], 3[...], 3[...], 3[...] and
2[...]. On 12 November 2021 at meeting that was held a resolution was taken that the
Applicant was to hold erven number 3[...], 3[...] and 3[...] on behalf of the property
owners to serve as public (common) spaces.
[9] The Applicant seeks this court to declare the two remaining erven 2[...] and
3[...] to also be declared as common property in the development in terms of the
resolution that was taken on 12 November 2021 whe n the new draft Constitution
came into being.
Issue to determine
[10] In order to determine the validity of the amended 2021 Constitution of the Aloe
Park Homeowners Association , the court is enjoined to consider both the main as
well as the counter application as both these applications are interrelated . The key
supporting documents are the same, although the reliance placed on them are
different.
[11] I will now first turn to deal with the Applicant ’s case and the Respondents’
response to it.
Applicants Case
[12] It is common cause that the Applicant came into being at the time when the
first property was transferred in 2016 in accordance with the provisions of section 29
of Hessequa Municipality. A constitution was drawn up on 7 October 2008 and
ratified on 10 May 2016 . Resulting in this Constitution c oming into being , duly
accepted by all mem bers of the Applicant, including the First Respondent and the
Second Respondents who own ed several portions of the development and w ere also
the developer s to this development .
[13] It is also common cause that the members of the Applicant including the
Respondents accept that the definitions found in paragraph 2 of the 2016
Constitution, defines various areas of property .
“2. WOORDOMSKRYWINGS
2.1 In hierdie Grondwet en die Reels het die onderstaande woorde en
uitdrukkings die betekenisse wat daarteenoor aangedui word tensy dit
uit die samehang anders blyk-
2.1.1 “erf”, ‘n erf in die ontwikkeling ;
2.1.2 “die gemeenskapl iek eiendom”, mey betrekking to t die ontwikkeling,
sodanige dele van die ontwikkeling as wat nie deelvorm van ‘n erf nie;
2.1.3 “geregistreerde eienaar ”, die geregigestree rde eienaarvan tyd tot tyd
van enige erf wat deel vorm van die ontwikkeling;
2.1.4 “die huurder” , enige persoon wat ‘n huurooreenkoms ten opsigte van
‘n erf in die ontwikkeling het;
2.1.5 “die lid”, ‘n lid soos omskryf in klousule 5 hiervan;
2.1.6 “die ontwikkelaar”, Liebenberg Trust;
2.1.7 “die ontwikkeling”, die behuisingsontwikkeling voortspruitend uit die
onderverdeling van Erf 1[...] A[...] , soos aangedui op Algemene Plan
Nr;
2.1.8 “persoon”, sluit in ‘n maatskappy, beslote korporasie , trust,
vennootskap of enige ander vereninging van persone wat regtens
geregtig is om die eienaar van onroerende eiendom te wees;
2.1.9 “die reels”, die aanvanklike reels van die vereniging enige opvolgende
reels wat deur die vereniging gemaak word;
2.1.10 “die veren iging”, die Aloe Park Huiseie naarsvereniging;
2.1.11 “die voorsitter” , die voorsitter van die vereniging;”
[14] The Applicant avers that o n 22 March 2019, at an annual general meeting of
the members it was resolved that the Trust would transfer the common property of
the development into the name of the Applicant. It was also further agreed that the
Applicant would contribute towards the costs of transfer in the amount of R 7500.
The resolution and the minutes of the meeting are attached to the Applicants
founding affidavit as Annexure”G”.
Minutes of Annual General Meeting
[15] A brief summar y of the minutes of the meeting dated 22 March 2019 attached
to the founding papers , reflect that the meeting was opened by Ms Yolande Botha
with a prayer. Further that the meeting was properly constituted and a quorum
established by the f ollowing owners being presen t; Nolene Owen ( Liebenberg Trust),
Vanie Oosthuizen , Quartus Coetzee, John Hiten, Jeane Joubert , Marie Gericke, Ria
Malan and As Hugo, together with the following proxy’s AC Marias - Quartus
Coetzee, Vestpoint - Vanie Oosthuizen, AJ Botha – Voorsitter, LCR Laubscher –
Voorsitter, HW Viljoen – Van Zyl Oosthuizen, L Oosthuizen – Voorsitter, Great Brak
Saw Mills – AS Hugo, HM Pienaar – Quartus Coetzee. Moreover, that the minutes of
the previous meeting was approved and accepted as the correct version of the
meeting.
[16] A resolution was passed at the meeting , in terms of which those present and
by proxy resolved to transfer three specified erven i.e erven numbers 3[...], 3[...] and
3[...] respectively to the Applicant to take responsibility of the maintenance and
upkeeping of these erven.
[17] It is not disputed by the Trust in their answering papers , that the Trust passed
transfer of erven 3[...], 3[...] and 3[...] into the name of the Applicant. The applicant
further avers that mentioned in the resolution but not transferred is Erf 2[...] and 3[...].
Furthermore, that Erf 2[...] was added in erroneously and therefore not transferred.
[18] The contention with regard to Erf 2[...] being added in error is common cause
between the parties. The Trust in their answering papers contend that Erf 2[...]
cannot by any stretch of imagination be described as a public space .
[19] In response to the contention by the Applicant that Erf 3[...] had also to be
transferred to them , the Trust vehemently deny this in their answering papers . In
substantiation of their denial they contend that Erf 3[...] was never mentioned in
Annexure “G” , as a result it was never transferred to the Applicant. Moreover, that
the reason for this omission from Annexure “G” is simply that there was no obligation
or undertaking given by the Respondents to transfer Erf 3[...] to the Applicant.
[20] The Applicant further aver that its Constitution was amended and ratified on
12 November 2021 and accepted by all members of the Applicant . Accordingly, it
came into force and effect by means of the special general meeting that was held on
12 November 202 1. The Trust in response to this contention in their answering
papers contend that the Constitution attached to annexure “I” of the founding affidavit
is unlawful and void due to non -compliance with the notice requirements for a special
general meeting . Moreover , the meeting lacked the required majority vote, and the
amendments made to the draft proposed new Co nstitution were not authorized and
done ex post facto .
[21] The Trust further emphasize d that the inclusion of Erf 3[...] in the definition of
‘development’ (“ontwikkeling”) was unauthorized and had not been validly approved
by a 90% majority of owners of land in the development. In addition , that the
purported new definition of “ontwikkeling ” contained in clause 2.1.32 refers to an
approved development under general plan number 1759 /2024, whilst the approved
general plan in respect of this development is SG number 5477/2007.
[22] The Applicant went further and aver that it is patently obvious th at by reading
the amended Constitution , common property is defined as “die erwe in die
Ontwikkeling wat paaie of privaat oop ruimtes is of wat benodig word vir dienste ten
opsigte van die Ontwikkeling, sowel as die geboue en verbeteringe opgerig op die
erwe, insluiten de die sekuriteitstoegang asook die omheining ten opsigte van die
Ontwikkeling”.
[23] Additionally, that it is clear that the security entry of the development is
included as part of the common property , and that the Constitution of the Applicant
had specifically mentioned the Erf numbers that form s part of the development .
Referring to the diagram s attached at Annexures “E” and “F” to the founding papers,
the applicant allege that Erf 3[...] is reflect ed as common property, more specifically
the main entrance gate of the development and the road through same, and the road
running along the back of the property is part of the common property.
[24] The Respondents reject ed these averments made by the Applicant and state d
in response in its answering papers that it is patently obvious that the amendments
to the existing Constitution approved and accepted by it on behalf of the First
Respondent had excluded Erf 3[...] from the definition of the development. Moreover,
that Erf 3[...] had been intentionally excluded from clause 2.1.32 of the final draft of
the proposed new Constitution , after due consideration . Furthermore, that the
definition of “gemeenskaplike eiendom ” (“common property”) had been drafted to
make specific reference to roads and to the entrance to the development, as the
roads which form part of Erf 3[...] as well as the entrance to the development would
form part of the portion of Erf 3[...] to be transferred to the Applicant in future , after
the intended sub -division of Erf 3[...].
[25] The Applicant avers that clause 27.1 of the amended Constitution states that
all property is to be transferred into the name of the Homeowners Association, which
is the Applicant. In response this averment the Trust contend ed that they have not
accepted or ratified the unlawful purported amended Constitution and are therefore
not bound by it. Furthermore , that the Trust is not obliged to transfer full ownership of
any portion of Erf 3[...] as even if the access road which forms part of Erf 3[...] and
the entrance to the development were to be regarded as “common property”, such
portions are not separately registrable in the name of the Applicant, until the intended
sub-division had occurred. Further that the portion of Erf 3[...] intended to be sub -
divided and excised , is not intended to be regarded as “common property”.
Respondents Counter Application
[26] The Trust in its answering affidavit raise d the following points in limine , if it is
upheld it will dispose of the Applicant’s application :
Non-joinder
[27] The Trust raised the issue of non -joinder of the Registrar of Deeds , the
Municipality of Hessequa and Tiasolve (Pty) Ltd (a tenant of the office building on Erf
3[...]).
[28] With regard to the non -joinder of the Hessequa Municipality and the Registrar
of Deeds , it is common cause that prior to the commencement of the proceedings
the Applicant brought an application on 28 November 2024 to join both the Registrar
of Deeds and the Hessequa Municipality as parties to the application. In addit ion, the
Hessequa Municipality filed a notice to abide to this Court’s decision . The
Respondent s further did not persist with the issue of non -joinder of T iasolve (Pty)
Ltd. Accordingly, the issue of the non -joinder of the Hessequa Muni cipality and
Registrar of Deeds and Tiasolve (Pty) Ltd is thus m oot and need no further
consideration by this Court.
Which Constitution is extant
[29] The Respondents allege that the 2008 Constitution was accepted and signed
on 7 October 2008 and became binding upon the upon the Applicant and its
members since 10 May 2016. Further that the members , irrespective of whether they
are personally present at a general meeting, or are represented by a proxy, are
entitled to bring out only 1 vote in respect of each Erf registered in their names.
Accordingly, any amendment to, or substitution of the Constitution must be
authorized and adopted by means of a Special Resolution supported by at least 90%
of the total members of the Applicant. Moreover , in order to lawfully and validly carry
a motion at a Special General Meeting of the Applicant, a minimum number of 139
votes (erven) were required to vote in favour thereof , keeping in mind the requisite
90% support threshold contained in clause 15.1.2 of the 2008 Constitution.
[30] Whereas at the special general meeting that was held on 12 November 2021
for purposes of amending the 2008 Constitution , only 99 erven were represented , as
a result the threshold required for the intended amendments to the 2008 Constitution
could not have been attained at the Special General Meeting .
[31] The Respondents further submitted in their heads of argument that
irrespective of whether the Trust’s proxy , Ms Viljoen acted without authority, the fact
remains that the required minimum number of 139 votes in favour of amending the
2008 constitution had not been obtained.
Arbitration Clause
[32] The third point in limine raised by the Trust is that in the event that the Court
finds that the 2008 Constitution still lawfully exists , their counter application should
be granted which will result in the Applicant’s dispute with the Trust being subject to
arbitration proceedings in terms of clause 16 of the 2008 Constitution.
“16 ARBITRATION
In the event of any dispute between (a) any of the Members (b) any of the
members and the developer and (c) any of the members and the association
in respect of the interpretation or the application of this Constitution or the
Rules, such dispute is resolved through arbitration …”
[33] The contention by the Respondents is that the Trust had at all times relevant
to the dispute own 82 erven in the housing development. And that in terms of clause
5.1 of the 2008 Constitution , membership of the Applicant follows automatically by
virtue of ownership of erven. Respondent contend s that clause 16 of the 2008
Constitution expressly provides for a dispute between a member and the Applicant to
be resolved by means of arbitration where the dispute concerns the interpretation o r
application of the 2008 Constitution. Moreover , that the Applicant’s case is based in
its entirety upon the application of the Constitution and specifically the Applicant ’s
perceived “obligation” to take transfer of such portions of the common property within
the development as which are registrable .
[34] The Respondents further contend s that a party who resist the stay of court
proceedings pending the final determination of the dispute by means of arbitration
proceedings , bears the onus of convincing the Court that exceptional circumstances
exist which militate against the stay of proceedings and the enforcement of the
agreed arbitration procedure. Further that the Applicant did not disclose a single
consideration which would constitute a compelling reason to enforce the agreed
arbitration procedure for the resolution of the present dispute. Accordingly, they
submit that the relief sought by the Applicant must be stayed pending the
determination of such by an arbitrator in terms of clause 16 of the 2008 Constitution.
Additionally, that there counter application is not affected by the Arbitration clause
contained in the 2008 Constitution , as an arbitrator has no jurisdiction to consider the
validity of the arbitration agreement itself, if its jurisdiction is based on an impugned
agreement.
No clear right proven
[35] The Respondents contend that in the event of the Court exercising its
discretion not to stay the main application and to adjudicate on the merits of the relief
sought by the Applicant , they have demonstrate d that the Applicant lacked a clear
right to transfer of ownership of Erf 3[...], similarly that the Applicant also lacks locus
standi to apply for ownership of Erf 3[...] be transferred to the Applicant.
[36] The Respondents contended that the Applicant have failed to prove an
agreement to transfer Erf 3[...] to it, much less a written agreement in such regard.
Further that the Applicant’s case is null and void in terms of clause 27.1 of the 2021
Constitution . Moreover, that even if clause 27.1 were to be disregarded, the clause
placed an obligation on the Applicant to accept transfer of the Erf 3[...] into its name.
[37] The Respondent s further contend ed for as long as the Respondents retains
ownership of Erf 3[...], it remains liable for the maintenance thereof, and that the
Homeowners Association does not require ownership for purposes of accepting a
maintenance responsibility.
Declaratory Orders
[38] The Respondents contended in their heads of argument that in terms of
section 21( 1)(c) of the Superior Courts Act 10 of 2013 , this court enjoys a discretion
to, at the instance of an interested party, enquire into and determine any existing,
future or conti ngent right or obligation, irre spective of whether consequential relief is
claimed upon such determination .
[39] The Respondents relied in this regard on the decision of Rail Commuters
Action Group v Transnet Limited t/a Metrorail 2005 (2) SA 359 (CC) at 410,
where the Constitutional Court remarked as follows in respect of the Court’s
discretion pertaining to issuing declaratory orders:
“It is quite clear that before it makes a declaratory order a court must consider all the
relevant circumstances. A declaratory order is a flexible remedy which can assist in
clarifying legal and constitutional obligations in a manner which promotes the
protection and enforcement of our Constitution and its values. Declaratory orders
may be accompanied by other forms of relief, such as mandatory or prohibitory
orders, but they may also stand on their own. In considering whether it is desirable to
order mandatory or prohibitory relief in addition to the declarator, a court will consider
all the relevant circumstances. ”
[40] The Respondents submitted that a proper case had been made out for the
granting of declaratory relief they prayed for in prayers 1 and 2 of the ir counter
application .
Applicant’s submissions in reply to Counter Application
[41] The Applicant s ubmitted when Erf 3[...] were advertised to the members of the
Homeowner ’s Association it included the entrance to the development , which
resulted in them buying into the development. There was no application for the
subdivision at any stage brought to their attention by the Respondents. Furthermore,
that no general , special or annual meeting were held by the developer to table its
intention to subdivide Erf 3[...]. Further that the E rf is common property , as the
entrance to development leads to t he main road that leads to the development , it is
also where entry and exit happen s.
[42] The Applicant further s ubmitted that the Respondents never advertised or
brought to the Applicant’s members attention that they intended to subdivide Erf
3[...], or bring an application for such subdivision. Nor did the respondents discuss
their intention to subdivide Erf 3[...] at any special , general or annual meeting. Th e
applicant s ubmitted that although the respondents are disputing th is in the ir
answering affidavit, there is no correspondence to show that the subdivision was
canvassed with the applicant or its members.
[43] Applicant submitted that the court should take cognizance of the fact that the
Respondents when filing their counter application , filed an answering affidavit to the
main application, which in turn also stands as the founding affidavit to the counter
application . Furthermore, that the failure of the Respondent s to file a response to
their replying affidavit , in which they respo nded to the Respondents ’ answering
affidavit , resulted in the contentions made by them in their replying affidavit in so far
as they relate to the counter application remain ing unchallenged.
[44] In their replying affidavit t he Applicant raised the following points in limine :
The Arbitration Clauses defence
[45] The Applicant submitted that an arbitration clause in a written contract does
not deprive the Court of its jurisdiction over the dispute covered by the agreement.
Moreover, an arbitration agreement is not an automatic bar to the legal proceedings.
Further that in this instance both arbitration clauses refer to specific members and
disputes between members and members of the Homeowners Association , and not
to the Applicant or the developer . It also specifically concern the interpretation of the
rules of the constitution .
[46] The Applicant further submitted that the Respondents in their heads of
arguments misquoted paragraph 31.9 at page 294 of the founding affidavit, to me an
that the Applicant implied that it was not necessary to come to court , if the plan to
subdivide the Erf was previously put before them. The Applicant submitted that the
reason for this statement was that the subdivision of the Erf will have great cost
implications for the Homeowners Association as it involves the rezoning of the
property , which was never previously discussed with the Homeowners Association.
This is because the Applicant is responsible for the roads and maintenance of the
infrastructure.
[47] Additionally the Applicant submitted that in order for the Respondents to rely
on either the 2021 or 2008 arbitration clause s, they had to comply with two
requirements :
[48] Firstly, that the Respondents had to bring an application in terms of the civil
proceedings , section 6 of the Arbitration Act. That this application had to be brought
before the delivery of any pleadings which the respondents or before they intended
to take any further steps in the proceedings. The Applicant relied in this regard on
the decision of Conress (Pty) Ltd v Gallic Construction (Pty) Ltd [1981] 3 All SA
337 (W) .
[49] Secondly, the Applicant relied on the case of Yorigami Maritime
Construction CO Ltd v Nissho -lwai Co Ltd [1977] 4 All SA 733 (C) , where it was
stated , for the stay of the proceedings pending the final determination of the dispute
by an appointed arbitrator the Respondent has to file a special plea.
[50] The Applicant submitted that if we look at this matter appearance was entered
into by the Respondents and instead of a stay of proceedings being brought the
Respondent s instead filed a counter application , resulting in enter ing into a
discussio n of the merits by filing an answering affidavit .
[51] Applicant submitted that in this matter they rely on the 2021 constitution which
was passed at a vote a t a special general meeting. Further that the members voted
to have the constitution amended and brought into effect. As part of that constitution
Erf 3[...] is mentioned as an Erf in the development. Addition ally, the constitution also
defines what the common property is and what forms part of the common property,
accordingly this is not an arbitrable dispute. Therefore , the Arbitration point in limine
raised by the Respondent s are defective and fails to meet the requirements as
expounded upon in the relevant authorities.
The Voting Process defence
[52] The Applicant submitted in order for the Respondents to rely on the 2008
constitution, the correct process for the Respondents ’ to have followed would have
been to apply to this court to set aside the voting process and subsequent ratification
of the 2021 constitution . Thereafter , to follow the Oudekraal principle whereby the
respondent will make use of the process of forcing the Homeowners Association to
an arbitratio n. (Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
(41/2003) [ 2004] ZASCA 48 ; [2004] 3 All SA 1 (SCA) ; 2004 (6) SA 222 (SCA) (28
May 2004 ).
[53] Oudekraal principle says, where an administrative action is unlawful or
incorrect it remains as effective until it is set aside in court proceeding for judicial
review . The applicant submits that the respondents attached to their answering
affidavit at AA6 at page 274 a list of members who attended the meeting that passed
the constitution of 2021, totaled to 149 , the Respondent hold 82 of the votes and the
proxy was HW Viljoen. The proxy form clearly says that the Liebenberg Trust
appointed HW Viljoen to act as their re presentative at the annual general meeting to
be held on 12 November 2021 , and to vote on the approval of proposed changes to
the Constitution and any other decisions that may arise.
[54] Applicant submitted that part of this is an approval of the post changes of the
2021 constitution , approval to the post changes to the contract law . The meeting was
properly constituted and had a proper forum. The person who was given the power
of attorney to act on behalf of the first and second respondent , had a proper
mandate to do so. To now say that there was no proper mandate, that the meeting
was improperly done that the voting process was flawed is opportunistic by the
respondents.
[55] Further that the argument by the Respondents i n their answering affidavit that,
there was only 99 members that voted and there had to be 139 members is
incorrect , because if you take away the 82 votes of the Trust it does not meet the 99-
member requirement. This is on the assumption that the voting process was flawed.
They submitted that the contrary is reflected on the register that the respondents
have attached to their answering papers, that in actual fact there was 149 votes in
total. Even if the math was incorrect in respect to the 99 members that only voted,
the register itself contradicts that.
[56] The Applicant contended that the Respondent s contention at paragraph 20.1
of their answering affidavit is incorrect, in that the Applicant ha d agreed that there
was no agreement with regard to the transfer of the whole of the Erf 3[...]. The letter
sent by Mr Siljeur at K1 to the Liebenberg Trust at paragraph 5 in particular “then for
a reason unknown to our client… this will be done without demand of any
compensation.”
[57] The Applicant contended that the letter that was sent by Mr Siljeur which i s
annexed to their founding papers as annexure “ K1” clearly states that the Trust and
the Second Respondent refused to acknowledge that Erf 3[...] forms part of the
common property , despite the fact that it was included in the constitution as an Erf
number and that it falls under the definition of common property , and that the gate
and access road to the complex are part of that Erf and that they had agreed thereto .
Moreover , no response to Mr Siljeur’s email was received from the Trust .
[58] The Applicant contended that the allegation made by the Respondents i n their
answering affidavit allegations that Ms Botha out of her own amended the
constitution and in cluded Erf 3[...] and chang ing the erven from 152 to 154 is
unsubstantiated , as t his was not done by Ms Botha but instead by the municipality
when the constitution was sent to them for consideration . Notwithstanding, the
Respondent s, have not challenged that there was a meeting or the outcome or
process of the meeting , neither has the 2021 constitution been set aside , thus the
constitution still stands and is applicable . The reliance of the Respondents on the old
constitution, by relying on 90% of the vote to pass a special resolution or to pass a
change in the constitution holds no water as the current constitution relies on 70%
vote to be passed to effect a change in the constitution. Considering the amount of
people at the meeting a total of 149 votes , both the 75% as well as the 90% hurdle
has been crossed.
The Arbitration Process Defence
[59] The Applicant submitted that mediation was attempted by the m with Ms Ow en
and the Trust , as is apparent from the correspondence attached to the founding
affidavit , however that there was no reciprocation from the Trust and Ms Owen to
resolve the dispute and the only option the Applicant had was to bring this matter
before this court. Even if this matter had to be arbitrated before coming to court the
Applicant complied in terms of section 36 of the Constitution whereas Ms Owen and
the Trust failed to respond to any of the Applicant ’s emails who tried to resolve
matter amicably. Respondent resisted all attempts to resolve the dispute .
Pacta Sunt Servanda Max im Defence
[60] The Applicant relied on the case of Brothers Property H olding s (Pty) Ltd v
Dansalot Trading (Pty) Ltd t/a Chinese F air (6149/2021) [2021] ZAWCHC 171 (1
September 2021 ), where at paragraph 27 of the judgment , Hockey AJ, refers to the
matter of Barkhuizen v Napier 2007 (5) SA 323 (CC), where Ngcobo J noted at
paragraph 57 of his judgment , that the p acta sunt servanda maxim ;
“... gives effect to the central constitutional values of freedom and dignity. Self-
autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is
the very essence of freedom and a vital part of dignity. The extent to which the
contract was freely and voluntarily concluded is clearly a vital factor as it will
determine the weight that should be afforded to the values of freedom and dignity.”
[61] Applicant submitted that if one applies this principle by Ngcobo J, to the
factual matrix here, it should be accepted that the Respondents have freely entered
into the voting process and are accordingly bound by it until an application has been
brought before this court to have the vote process set aside .
[62] Moreover, the Respondents cannot by way of a counter application seek to
declare the 2021 constitution null and void. The applicant contend that th is court will
first have to deal with the question of whether the voting process of the 2021
constitution was flawed or an unlawful administrative action. In support of this
contention the applicant relies on Beadica 231 CC and Others v Trustees for the
time being of the Oregan Trust and Others (CCT109/19) [2020] ZACC 13 , where
Theron J emphasizes at para 81 of the judgment that ,
“[81] The rule of law requires that the law be clear and ascertainable. As stated by
this Court in Affordable Medicines: “ The law must indicate with reasonable certainty
to those who are bound by it what is required of them so that they regulate their
conduct accordingly .190 The application of the common law rules of contract should
result in reasonabl y predictable outcomes , enabling individuals to enter into
contractual relationships with the belief that they will be able to approach a court to
enforce their bargain. It is therefore vital that, in developing the common law, courts
develop clear and ascertainable rules and doctrines that ensure that our law of
contract is substantively fair, whilst at the same time providing predictable outcomes
for contracting parties. This is what the rule of law, a foundational constitutional value
requires.191 The e nforcement of contractual terms does not depend on an individual
Judge ’s sense of what fairness , reasonableness or justice requir e. To hold otherwise
would be to make the enforcement of contractual terms dependent on the
“idiosyncratic inferences of a few judicial minds.”
[63] It is the Applicant’s argument that it is common cause that in both these
constitutions there was an intent for there to be common property in the
development , and for this common property to be transferred in the Homeowners
Association’s name and it has been defined in both constitutions. That is what is
reasonable and predictable that the applicants find it reasonably predictable that the
Erf 3[...] is common property and that it has the roads and gatehouse and that it
should be transferred to them.
[64] The Respondents are thus bound by the 2021 constitution and should
therefore transfer the common property of Erf 3[...] into the name of the applicant.
Costs
[65] With regard to costs the applicant cited Ferreira vs Levine NO and Others;
Vryenhoek and Others v Powell NO and Others [1996] ZACC 27 ( 19 March
1996) which is trite law that award of costs unless otherwise expressly enacted in the
discretion of the presiding judicial officer , the successful party s hould be as a general
rule to be awarded costs. Had the respondents responded to the applicant’s
correspondence and entered into meaningful engagement this matter might have
been mediated and not before this court. I am of the view that costs should be
awarded to the applicant.
Respondents’ submission s
[66] The Respondent s in response to Applicant ’s submissions, submitted that the
Applicant at paragraph 16 of its founding affidavit has proven to set out a false case.
In that the foundation for the relief sought by the Applicant does not support the relief
the Applicant is seeking in its notice of motion , accordingly the main application of
the Applicant should be dismissed.
[67] They contend that to the contrary their counter application must succeed as
the Applicant failed to set out the basis for its application in its founding papers. They
submitted that the Applicant in their founding affidavit did not rely on the 2008
constitution in its unamended form , thus the applicant cannot rely on it now during
argument. They submitted that paragraph 34.3 at page 297, proves that the
Applicant’s version is false, and that the applicant concedes that its version is false ,
in that the Applicant conceded that the proposed changes were made by the
Municipality after the meeting and that no changes were made by Ms Botha herself .
[68] The Respondent further submitted that the Applicant in its founding papers
and in its heads of argument contended that the majority of members voted at the
special meeting, however failed to mention that in the constitution there is a clause
that requires prior circulation of annexure “I”. This annexure “I” was never circulated
although annexure “I” was voted on at the special meeting. Respondent s referred to
page 25 and 37 of the 2016 constitution , relevant clause with regard to the
circulation.
Clause 15.1 “Spesiale besluite ”
A loose translation is an introduction to special resolutions
Clause 15.1.1 Which will have the effect that any part of the constitution is
amended or recalled must be accepted by way of not less than 90% of total
members , and not members that are present. The Respondent s submitted that the
Applicant’s case is that those who were present voted , whatever the percentage
was, whereas according to the 2016 constitution 90% of all members must vote for
an amendment to the constitution . Prior written consent of any property owner has
first to be obtained before any amendments which may affect the rights of the owner
can be made. Accordingly, the Respondent submits that the case put up by the
Applicant in its founding papers is that the meeting was not in accordance with
clause 15 of the constitution , as not all members voted and there was no prior written
confirmation from the Trust .
[69] The Respondent further submitted at page 298, paragraph 26.1 , that Ms
Botha averred that all the members were present , which is incorrect. Further that it
appears that Anna Viljoen and HW Viljoen is not the same person. This confusion
with regard to which Viljoen signed the resolution is neither here nor there as it is
apparent that Botha was authorized by Viljoen , a trustee of the trust to depose of the
affidavit.
[70] The Respondent submitted that prayer 2 of the notice of motion cannot be
granted, as the relief is sought on the basis of annexure “I” being circulated.
Accordingly, if annexure “I” falls away , therefore the relief sought by the Applicant
cannot be granted. Respondent submitted that the question would be what right the
applicant seeks to enforce. If that right arises out of annexure “I”, and annexure “I”
falls away, the right also falls away. The Respondent further submitted that in their
counter application , the y sought for the court to declare the amended constitution
and annexure “I” to be invalid .
[71] With regard to prayer 2 of their counter application , they submitted that if the
2021 constitution falls away , the previous 2008 constitution would be valid , in terms
of which the Applicant relies for their relief sought . The respondent submitted that
they have also prayed for similar relief in terms of the 2008 constitution to be
granted.
[72] With regard to prayer 3 of its counter claim , the order directing the First
Respondent to submit an application for the subdivision of Erf 3[...], is being sought
by them via a court order and not the Applicant . In other words, that they have
consented to th e subdivision of Erf 3[...] without the Applicant seeking such relief
from the court.
Costs
[73] Respondent submitted that there is no reason why costs should not follow the
result. Furthermore , they submitted that the applicant asked for attorney and client
costs, whereas they seek costs on the main and counter application the same costs
on scale C.
Analysis and Relevant Case Law
[74] Many issues were raised by the parties in their papers as well as during
arguments. The court is cognizant of the principle that parties entering into contracts
freely should be held in terms of their contracts. The question is whether the
Applicant has made out a case that the amendments to the 2008 Constitution are
unlawful and therefore, the 2021 constitution is null and void.
[75] Points in limine raised by Respondents will first need to be dealt with before
the court can consider the merits of both these applications .
The Non- joinder argument
[76] Section 97 of the Deeds Registries Act provides as follows’:
“(1) Before any application is made to the court for authority or an order involving
the performance of any act in a deeds registry , the applicant shall give the registrar
concerned at least seven days ’ notice before the hearing of such application and
such registrar may submit to the court such report thereon as he may deem
desirable to make.”
[77] With regard to the non -joinder of the Hessequa Municipality and the Registrar
of Deeds, it is common cause that prior to the commencement of the proceedings
the Applicant brought an application on 28 November 2024 to join both the Registrar
of Deeds and the Hessequa Municipality as parties to the application. In addition, the
Hessequa Municipality filed a notice to abide to this Court’s decision. The
Respondents further did not persist with the issue of non -joinder of Tiasolve (Pty)
Ltd. Accordingly, the issue of the non -joinder of the Hessequa Municipality and
Registrar of Deeds and Tiasolve (Pty) Ltd is thus moot and need no further
consideration by this Court.
Which Constitution is extant argument
[78] The Respondents allege that the version relied upon by the Applicant in their
founding affidavit is false and that based on this the application of the Applicant
should be dismissed. However , it is not as easy as it sounds. In order to determine
whether the 2008 Constitution was properly amendment we will first have to look at
the relevant terms of the Constitution.
Clause 5.2 – States that “Elke lid is geregtig op een stem vir elke erf wat hy in die
ontwikkeling besit , Eienaarskap van ‘n erf in onverdeelde aandele stel slegs een
lidmaatskap daar, welke lidmaatskap verteenwoordig word deur individu ingevolge
die bepalings van klousule 9.11 hiervan.”
Clause 6.5.3 - “’n Kworum vir die hou van Bestuursvergaderings is (1) meer as die
helfte van die totale aantal bestuurslede, afgerond tot die naaste boonste heelgetal
indien die aantal ‘n ongelyke aantal is.”
Clause 6.5.4 – Kennisgewings van vergaderings van die Bestuur geskied aan die
lede van die Bestuur by die addresse waarvan hulle die Vereniging kennis moet gee.
Clause 6. 5.6 – Bestuursvergaderings geskied met kennisgewing van nie minder as
21 (een en twintig) dae.
Clause 6.5. 7 – Alle besluite van die Bestuur word by wyse van meer derheidsbesluit
geneem onderhewig daaraan dat ‘n skriftelike besluit, onderteken deur al die lede
van die Bestuur net so geldig is asof dit op ‘n vergadering aan die Bestuur geneem
is.
Clause 15 - SPESIALE BESLUITE
15.1 Nieteenstaande enige iets tot die teendeel in hierdie Grondwet, maar
onderhewig egter aan die bepalings van Klousule 11.7 hierbo, moet enige
besluit van die vereniging :-
15.1.1 wat tot gevolg het dat enige gedeelte van hierdie Grondwet gewysig of
herroep word; of
15.1.2 wat wenslik die finansiele eiendomsbelange van enige lid sal benadeel .
Aangeneem word deur nie minder as 90% (negentig present) van die
totale aantal lede.
15.2 Nieteenstaande enige ander bepalings –
15.2.1 is geen besluit waarkragtens die oprigting van enige structure op die
gemeenskaplike eiendom gemagtig word afdwingbaar indien dit nie
gepaardgaan met die voorafgaande skriftelike toestemming van die
persoon of persone wie se eiendomme negatief daardeur geraak kan
word nie;
15.2.2 word geen besluit aangeneem wat enige beperkende titelvoorwaardes
van enigeen van die erwe wysig of skrap nie.
15.2.3 Reels hierkragtens uitgevaardig sal gewysig word slegs by wyse van ‘n
Spesiale Besluite. ”
[79] It is not in dispute that a number of 99 out of the 153 erven referred to in the
draft new constitution were present at the meeting of 12 November 2021, either
physically or by proxy. Out of the 99 votes 82 votes belonged to the Respondent
Trust. In terms of clause 15.1.2 of the 2008 Constitution in order to lawfully and
validly carry the proposed motion to accept the amended Constitution , a number of
139 votes (erven) where required in favour thereof .
[80] The minutes of the meeting speaks for itself at no stage during the
deliberations was any mention made of Erf 3[...] to be transferred to the Applicant as
common property. The amended Constitution sent to the Municipality was unlawfully
done as the Applicants by their own version admits that the amendments were not
done at the meeting to insert Erf 3[...] but that it was unilaterally done by the
Municipality. It Is therefore apparent that the insertion of Erf 3[...] in the amended
Constitution was not done by any resolution or voting process of the members or
owners of the properties in the development as required in terms of the 2008
Constitution. Clause 15.2. 1 and 15.2.2 of the 2008 Constitution expressly states that
no decision where any structure may be erected on the common property or
amendments which may affect the title deeds of any person , may be taken without
the prior written consent of persons whose properties might be negatively impacted
by such a decision being taken.
[81] It is therefore my considered view that it might be that the meeting held on 12
November 2021 was not in accordance with clause 15 of the constitution, that the
amendment of the Constitution was done only to transfer 5 specific ally mentioned
erven 3[...], 3[...], 3[...], 2[...] and 2[...] and not Erf 3[...]. I pause to mention that it is
apparent that not all the members whose properties were to be affected by any
amendment that had to be taken at the meeting was also not present as only 149
members were present either personally or represented by proxy.
[82] For these reasons I take the view that the Applicant has no right to the
transfer of Erf 3[...] to him . Additionally , there is a bona fide dispute of fact here that
can only be resolved by leading evidence so that this issue can be properly
ventilated.
The Oudekraal principle
[83] In a voluntary association , the members bind themselves to act in a particular
manner in their relationship with each other in relation to the objects of the
association. This principle is explained in the well-known constitutional case of
Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3)
SA 580 (CC) para 75, as follows:
“The rule of law requires that no power be exercised unless it is sanctioned by law,
and no decision or step sanctioned by law may be ignored based purely on a
contrary view. It is not open to any of us to pick and choose which of the otherwise
effectual consequences of the exercise of constitutional or statutory power will be
disregarded and which given heed to. Our foundational value of the rule of law
demands of us, as a law -abiding people, to obey decisions made by those clothed
with the legal authority to make them or else approach courts of law to set aside, so
we may validly escape their binding force.”
[84] It is apparent that from this extract , that the Homeowner’s Association
established by a constitution must make and obey decisions in terms of the law
(‘constitution’) . As a matter of logic, the Applicant first have to comply with the rules
and regulations as set out in the 2008 Constitution in order for the 2021 Constitution
to become legal and binding on all members. Even if it is said to have complied , its
decision is not what the issue is here which is apparent from the papers but rather
that of the Municipality which was taken after the fact.
The Arbitration Clause argument
[85] The Arbitration clause at clause 16 of the 2008 Constitution reads as follows:
“In geval van enige geskil tussen (a) enige van die Lede (b) enige van die lede en
die ontwikkelaar en (c) enige van die lede en die ver eniging in verband met die uitleg
of die toepassing van hierdie Grondwet of die Reels , word sodanige geskil deur
arbitrasie besleg . Die arbiter is ‘n onafhanklike persoon waarop die partye
ooreenkom, by versuim, waarvan die persoon benoem word deur die voorsitter van
die Prokereurso rde van die Kaap die Goeie Hoop of sy regopvolger. Die arbiter
geregtig om die geskil te besleg ooreenkomstig dit wat hy as reg en billik beskou in
ooreenstemming met die doelstellings van die vereniging. Die besluite van die arbiter
is finaal en bindend vir die partye.”
[86] It is apparent from this arbitration clause that no reference is made to the
Homeowner’s Association as a member, it merely refers to ‘lede’ which if translated
means a member in terms of clause 5 of the said Constitution . The Homeowner’s
Association is a stand -alone organization which is consistent of the members of this
development , although it has authority in terms of both constitutions to institute
proceedings and act as a juristic legal person and litigate on its own. Hence this
arbitration clause cannot apply to the Homeowner’s Association. The arbitration
clause goes further to explain the extent of what can be referred to the arbitration.
That is whether the constitution is applicable , how it is applicable or any
interpretation to the rules which are attached to the constitution.
[87] The Respondents in turn wish for the proceedings to be stayed. This
argument is flawed as it is common cause that no such application for a stay of
proceedings by the Respondents was made to this Court to exercise its discretion in
terms of section 6 of the Arbitration Act 25 of 1965. Moreover, there is no notice by
the Respondents to amend their notice of motion or founding affidavit which contains
no averments to that effect. It merely state that the arbitration clause is binding in the
2008 constitution.
Respondents’ Counter Application
[88] The respondents have brought a counter application to declare 2021
constitution null and void in that the 2008 constitution is still in effect. They further
seek this court to direct that the First Respondent may lodge an application for the
subdivision of Erf 3[...] in the Aloe Park Housing Development within 90 days of this
order. However , in their heads of argument the Respondent has at length gone into
arbitration and has requested a stay of this proceedings.
[89] It is important to note, in their founding papers that this was not the relief that
they have sought before this court .
[90] The original 2008 constitution did not provide for the subdivision of Erf 3[...],
nor did it stipulate what would happen in the event that this Erf should be subdivided.
At the special general meeting the developer and the Trustees suggested
amendments to the 2008 Constitution, presumably to address the omission of Erf
3[...] being declared as common property. The minutes of the meeting reflect that
149 members were present, but nowhere on the resolution attached to the minutes
dated 12 November is there any mention that Erf 3[...] were either to be transferred
to the Applicant for maintenance or upkeeping, the only erven that are specifically
mentioned is 3[...], 3[...] and 3[...], 2[...] and 2[...], thus if it is my considered view if it
were meant for 3[...] also to have been declared common property it would have
specifically noted. Nowhere in their resolution which is confirmed by the minutes of
the meeting was Erf 3[...] declared as common property.
[91] I agree with the Applicant that where an admi nistrator has made a decision
and a party considers it unlawful and unreasonable that party has to apply to court
for judicial review in order to have that decision set aside , however in this matter it is
not the decision of the administrator that has to be considered , but that prima facie
from the papers whether the Applicant has made out a case for the this court to grant
a declaratory order and declare Erf 3[...] as common property in the Aloe Park
housing development.
[92] I have considered the various authorities referred to by the Applicant , which
although I agree with them, I have a view that they are all distinguishable from the
facts of this case. From the papers it is clear that this court cannot grant such an
order as there various disputes of fact raised by both the Applicant and the
Respondents in their papers.
Conclusion
[93] Based on the evidence in the papers before this court I am not satisfied that
either the Applicant or the Respondents have prove n necessary conditions exist for
them to be granted declaratory relief by this court. The issues raised by both parties
raises various material disputes of fact which can only be properly resolved in action
proceedings.
Order:
[94] It is for all theses reasons , that the following order is issued in connection with
the main application and the counterapplication thereto, namely;
94.1 That the main application is dismissed.
94.2 That the counter application is dismissed.
94.3 Each party is ordered to pay their own costs.
MTHIMUNYE AJ
JUDGE OF HIGH COURT
APPEARANCES
Applicant’s Counsel : Adv Shaina Naidoo ( Shainanaidoo93@gmail.com
shainanaidoo@capebar.co.za
Applicant’s Attorney: Johan Cilliers ( johan@c -law.co.za )
Respondents’ Counsel: Adv Dirk J Coetsee (coetsee@capebar.co.za)
Respondents’ Attorney : Meyer Van Sittert Attorneys