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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION, THEMBALETHU )
JUDGMENT
Not Reportable
Case no: 1 04/2025
In the matter between:
THANAP AL PILLAY APPLICANT
and
THE WHALE ROCK HEIGHTS HOMEOWNERS
ASSOCIATION FIRST RESPONDENT
DEON STEEN KAMP SECOND RESPONDENT
Neutral citation: Pillay v The Whale Rock Heights Homeowners’ Association and
Another (Case no 104/2025) [202 5] ZAWCHC 224 (28 MAY 2025 )
Coram: NUKU J
Heard : 14 April 2025
Delivered : 28 MAY 2025
Summary: Review – decision of the trustees of a homeowners association to
approve building plans that did not comply with the provisions of the
Architectural Guidelines of the homeowners association that the trustees
were responsible for enforcing – decision of the trustees of a homeowners
association to condone the building plans ’ non -compliance comply with
the provisions of the Architectural Guidelines where no application had
been made for such condonation – in both instances the trustees acting
beyond the powers conferred on them by the Constitution of the
homeowners association – decision reviewed and set aside
ORDER
1. The First Respondent’s 23 July 2023 approval of the Second Respondent’s
building plans in respect of the building presently being erected on Erf
8[...], as well as the decision, which it claims to have taken on 18 February
2025, to condone a departure from Item 1.2.1.2 of its Architectural
Guidelines in respect of Erf 8[...] are hereby reviewed and set aside.
2. The respondents, jointly and severally, the one paying the other to be
absolved, are directed to pay:
2.2.1 the costs occasioned by the interdict application, including the
qualifying costs of the experts, David Friedman and Steven Neufeld,
including the cost of Senior Counsel and appointing correspondent
attorneys to assist with file pagination in George and Cape Town,
and
2.2.2 the costs of the review application, including the qualifying costs of
the experts, David Friedman and Steven Neufeld, and including the
cost of Senior Counsel and appointing correspondent attorneys to
assist with file pagination in George and Cape Town.
3. The costs referred to above, which shall be in accordance with scale C,
shall include the costs occasioned by the postponement of the application
on 20 March 2025 and 28 March 2025
JUDGMENT
Nuku J
[1] The final relief that the applicant seeks in these proceedings i s the review and
setting aside of decisions taken by the first respondent (a) on 23 July 2023 to approve
building plans submitted by the se cond respondent (Building Plans) which did not
comply with the first respondent’s Architectural Guidelines and Rules (Architectural
Guidelines) , and (b) on 18 February to condone the Building Plans’ non -compliance with
the Architectural Guidelines in circumstances when there was no application for such
condonation.
[2] The complaint is that the Building Plans do not comply with the provisions of
clause 1.2.1.2 of the Architectural Guidelines which prescribe s a minimum requirement
of not less than seventeen and a half degrees in respect of roof pitches.
It is common cause that the roof pitch depicted in the Building Plans is less than
seventeen and half degrees.
[3] The applicant raises various grounds of review but based on the view I take of
the matter , there is one review ground that is dispositive of the matter, and it is the one
that relates to the vires which can be paraphrased as follows: a s to the decision of 23
July 2023, the f irst respondent did not have the authority to approve building plans that
deviated from the requirements laid down by the Architectural Guidelines, and as to the
decision of 18 February 2025, the first respondent had no authority to condone the
Building Plans’ non -compliance with the requirements laid down by the Architectura l
Guidelines in the absence of an applicatio n for such condonation.
[4] The first respondent is a body corporate established in terms of section 29(1) of
the Cape Land Use Planning Ordinance No. 15 of 1985 . In terms of its Constitution, the
management and control of its affairs vest in a Board of Trustees which is referred to as
the Committee. Further, the Committee is , in terms of clause 11.1.2 of the Constitution,
entitled and obliged to give effect to the Constitution. In turn, clause 9.1 of the
Constitution provides that ‘The Committee shall enforce the Architectural Guidelines of
the Whale Rock Heights Private Estate on behalf of the Association. ’
[5] In approving the Building Plans on 23 July 2023, albeit through an oversight, the
Committee clearly acted beyond the powers conferred on it by the Constitution. In fact,
in so approving the Building Plans, it acted contrary to the Constitution, and it cannot
and does not claim to have any power so to act.
[6] As regards the decision to condone the Building Plans’ non -compliance with the
requirements laid down by the Architectural Guidelines , it is common cause that the
second respondent made no application for condonation. The Committee discovered its
erroneous approval of the Building Plans when it was in the process of investigating
complaints it had received in relation to the house that the second respondent was in
the process of building. A minute of the meeting where the Committee is said to have
made the decision reads, in the relevant part, as follows:
‘A discussion regarding the build on stand 8[...] was held. Specific reference was
made to the deviations from architectural guidelines with regard to the pitch of
the roof. It was acknowledged that the plans had been approved by the Trustees
in 2023 and submitted as approved to the Council – where the plans were also
approved. All indications from the two surveyors’ reports are that the construction
was in compliance with the approved plans, and that it would not exceed the
maximum height limit. It was further stated that the architectural guidelines are
guidelines, rather than strict rule, and that there can be some discretion with
regard to these. It was further agreed that any concerns raised by impacted
members , addressed through PPM, would be responded to .’
[7] It is clear from the above extract , that the Committee was not presented with an
application for condonation for the non-compliance, but it was deliberating over
concerns that had been raised by impacted members . Significantly, the concern related
to the Building Plans’ non -compliance with the roof pitch requirements.
What the above extract demonstrates is that the Committee granted the condonation as
a way of getting rid of the complaint s that had been raised by the applicant as well as
other membe rs of the first respondent. In the absence of an application for condonation
for the Building Plans’ non -compliance with the provisions of clause 1.2.1.2 of the
Architectural Guidelines , any discretional powers to grant condonation
that the Committee may have had were not engaged. As such, the Committee acted
beyond the powers conferred upon it by the Constitution when it granted the
condonation which had not been applied for.
[8] The review is, in my view, good. But the respondents say that the applicant
should be non -suited for failure to join the local authority with jurisdiction over the area
where the subject property is situated. The short answer to this is that the local authority
has no interest in the enforcement of the Architectural Guidelines by the first
respondent. The respondents have also not suggested any interest of the local authority
that may be adversely affected by a judgment relating to enforcement of the first
respondent’s Constitution and Architectural Guidelines. The non -joinder point is, thus,
bad in law.
[9] A further point in limine that the respondent raise d relates to the applicant’s
failure to utilise the internal dispute resolution mechanisms either in terms of clause 21
of the Constitution or in terms of the provisions of the Community Schemes Ombud
Services Act, 9 of 2011 (CSOS Act).
[10] The first respondent puts this point no higher than suggesting that it ‘would have
greatly preferred that the dispute raised by the applicant should have been dealt with in
terms
of the dispute resolution procedures provided for in clause 21 of the Constitution of the
Association ’. This is understandable because clause 21.2.1 provides, in the relevant
part, that if a matter is not resolved ‘it may be dealt with in accordance with the
procedure as set out in this clause. ’ Thus , the applicant was not obliged to deal with his
concern in terms of the procedure laid down by the Constitution but could elect to do so.
His election not to utilise that procedure can, thus, be no basis to non -suit him.
[11] The second respondent pleaded this preliminary point vaguely as follows ‘My
understanding is that the correct forum for the applicant declare a dispute with me
would be in terms of the Community Schemes Ombud Service Act, 2011 (“CSOS”). This
Act was specifically adopted to deal with, among others, disputes between members of
a homeowners ’ association in the manner as described therein. ’
[12] In argument, reference was made to two decisions of this Court in Heathrow1
and Sorronto2 in support of the proposition that this Court should only entertain
disputes emanating from community schemes in exceptional circumstances. Context,
however, matters . I say this because in Heathrow this Court was dealing with a dispute
in respect of which the CSOS Act ma kes provision for whilst here the dispute goes to
the legality of the decision. As this Court stated in Heathrow the High Court ‘is confined
to reviewing the legality or rationality of the conduct of a decision -making body ’3.
[13] Reference that was made to section 39(6) of the CSOS Act by the respondents
was unhelpful because on the plain reading of that provision it confers no review powers
1Heathrow Property Holdings No 33 CC and Others v Manhattan Place Body Corporate and Others
(7235/2017) [2021] ZAWCHC 109; [2021] 3 All SA 527 (WCC); 2022 (1) SA 211 (WCC) (1 June 2021) at
para [61]
2 Body Corporate of the Sorronto Sectional Title Scheme, Parow v Koordom and Another (5439/2021)
[2022] ZAWCHC 99; 2022 (6) SA 499 (WCC) (26 May 2022) at para [17]
3 At para [53]
as part of the dispute resolution mechanism. In the end I am of the view that t his point in
limine is also bad in law.
[14] At the commencement of the hearing there w ere divergent views between
counsel on whether the part A relief still requires determination. Counsel for the
applicant indicated that the relief sought in part A still required determination whereas
the respondents’ counsel was of the view that it had become moot and had been
overtaken by events because the Court was now dealing with the review.
[15] Applicant’s counsel attempted to explain why the applicant persisted with part A
relief and from the explanation it was clear that it was for selfish reasons which would
result in the part A relief operating like an order given in terms of section 18 (3) of the
Superior Courts Act, 10 of 2013 in that it would , if granted, not be suspended by an
appeal against an order made in respect of the review.
[16] The relief sought in part A had clearly become moot because the applicant
sought it on the basis that it would operate until the outcome of the review application. I
asked a rhetorical question – if the court grants the interim interdict – until when such
interdict would operate and there was no ready answer to that. The only issue that
remains are the costs relating to part A which stood over when the matter was
postponed on 20 and 28 March 2025 with costs standing over for later determination .
[17] In my view, the costs , including the costs in relation to the postponements on 20
and 28 March 2025 should follow the result. What triggered the application was
the first respondent’s decision that was taken on 18 February 2025 which made it clear
that the dispute would remain unresolved. Prior thereto, the applicant had been told that
the matter is receiving attention, and he would be kept informed.
Orde r
[18] In the result I make the following order:
18.1 The First Respondent’s 23 July 2023 approval of the Second Respondent’s
building plans in respect of the building presently being erected on Erf 8[...], as well as
the decision, which it claims to have taken on 18 February 2025, to condone a
departure from Item 1.2.1.2 of its Architectural Guidelines in respect of Erf 8[...] are
hereby reviewed and set aside.
18.2 The respondents , jointly and severally, the one paying the other to be absolved,
are directed to pay :
18.2.1 the costs occasioned by the interdict application, including the qualifying
costs of the experts, David Friedman and Steven Neufeld, including the
cost of Senior Counsel and appointing correspondent attorneys to assist
with file pagination in George and Cape Town, and
18.2.2 the costs of the review application, including the qualifying costs of the
experts, David Friedman and Steven Neufeld, and including the cost of
Senior Counsel and appointing correspondent attorneys to assist with file
pagination in George and Cape Town .
18.3 The costs referred to above, which shall be in accordance with scale C, shall
include the costs occasioned by the postponement of the application on 20 March 2025
and 28 March 2025 .
L G NUKU
JUDGE OF THE HIGH COURT
Appearances
For applicants: J Heunis SC
Instructed by: Mosdell Pama & Cox Attorneys, Plettenberg Bay
For respondents: A De Vos SC and
Instructed by: HDRS Attorneys Inc, Plettenberg Bay