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/NO
1;1-June.-~ -~
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)l TO
PETRUS ZELIE N.O. CASE NO: 2023-059686
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
JUOGMENT ON LEAVE TO APPEAL
LESUFI AJ
Introduction
(1) This is an application for leave to appeal against my judgement delivered on
the 3 February 2025. The leave to appeal is brought in terms of Rule 49 of the Uniform
Rules read with section 17 of the Superior Act. The Applicant filed a notice for leave
to appeal on the 11 February 2025. The application is opposed by the First to the Fifth
Respondent.
[21 The parties will be referred to as they were in the review application. However, the
First to the Fifth Respondents will be referred to collectively as "Respondents"
Background facts
(3) On the 21 April 2023, the Fourth Respondent made an application to the First
Respondent, for dispute resolution by completing a form ("the dispute resolution form")
setting out 17 disputes for conciliation or arbitration against the Applicant. In the
application to the First Respondent, the Fourth Respondent sought the following relief
in terms of Section 39 of the Community Schemes Ombud Service Act 9 of
2011 (CSOS Act):
3.1 In terms of the financial issues;
3. 2 Scheme Governanc e issues:
3.3 Meeting issues;
3.4 General and other issues;
(4]. On the 18th of May 2023 the First Respondent, acting through the Second
and/or Third Respondents accepted the application for the dispute resolution (under
CSOS Application 1237 MP/23} initiated by the Fourth Respondent.
(5}. The Fourth Respondent to be assisted in the resolution of the dispute, was
requested by the First Respondent to furnish written submission regarding the
application by the 24th of May 2023. On the 25th of May 2023 the Fourth Respondent
received an email from the First Respondent informing them that they failed to provide
a response, accordingly the dispute is therefore referred directly to Adjudication in
terms of Section 48 of the CSOS Act.
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[6]. On the 25th of May 2023 the Applicant sent a letter to Fourth 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 Resolution 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.
(7). 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 the
First Respondent and the First Respondent was obligated to reject the application in
terms of Section 42 of the CSOS Act and therefore should have been rejected.
[8]. On the 27th of June 2023, the Applicant instituted a review application before
this court seeking inter alia that the First Respondent's decision to accept and refer
the Dispute for Adjudication be reviewed.
Applicant's grounds of Appeal
[9] Applicant's grounds for appeal can be summarised as follows:
9.1 The court erred in dismissing the application .
9.2 The court erred in finding that the Applicant did not adduce evidence of
whether decisions of the Respondents adversely affected its rights. The
court should have found that the Applicant provided facts that the
reference to adjudication severely impacts its ability to enforce the
Management Rules of the Applicant as a Homeowners Association for
the benefit of its members .
9.3 The court erred in not considering that the CSOS Act constitutes public
law remedies in circumstances where the Applicant's MOI and
Management must be afforded preferenc e in respect of private disputes
governed by the Applicant's Constitution.
9.4 The court erred in not finding that the Fourth Respondents request for
direct reference to adjudication should at the outset have been dealt with
by a way of conciliation of the CSOS practice directive, alternatively
private arbitration to the Constitution .
9.5 The court erred in making a finding to the effect that the reference to the
adjudicator is appropriate manner to deal with the reference of disputes.
9.6 The court erred in selectively making a finding that the Applicant did not
exhaust remedied but conversely did not hold the Fourth Respondent
and Fifth Respondents, alternative ly the CSOS and Ombud, to the same
standard of test.
9. 7. The court erred in not considering or finding that the disputes instituted
by the Fourth and Fifth Respondents must be capable of resolution in
terms of a section 39 order, if not the CSOS and /or adjudicator do not
have jurisdictions to adjudicate,
9.8 The court erred by not considering that various disputes do not fall within
the jurisdiction of the Ombud, as conceded by the First to Third
Respondents.
9.9 The court erred in finding that direst reference to an adjudicator may be
ordered if no conciliation has been invoked, which is contrary to the
Practice Directive requirement in terms of Clause 21.5.
9.10 The court erred in finding that condonation should be allowed, although
most of the disputes fell outside the 60 -day period in terms of the Act.
The court ignored the rules of natural justice.
9.11 The court erred in making no finding that the matter should be stayed
pending a report to be submitted by the Fifth Respondent regarding the
verification process and the litigation instituted as a consequence
thereof.
9 .12 The court erred by not upholding the sanctity of contracts between the
members to the MOI and Management Rules, thereby not promoting
good governance of homeowners' associations and not complying with
a pre-emptive dispute resolution clause contained in the MOL
[1 OJ The Primary legal question to be answered by the Appeal court is
10.1 Whether MOI or private agreement between the Applicant and the Fifth
Respondent super cede the CSOS Act or whether the Fourth
Respondents request for direct reference to adjudication should at the
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outset have been dealt with by way of conciliation of the CSOS practice
directive.
10.2 Whether CSOS has Jurisdiction to refer the matter for adjudication .
(11) However the Appeal Court is not limited by my summary of legal questions.
Respondent's opposition to the Application for leave to appeal
(12) The application for leave to appeal is vehemently and vigorously opposed the
application. The basis for opposing being that it is clear that there was no misdirection
by the court a quo. In principle the Respondents abide by my judgement.
Issues for determination
[13) Whether this appeal has prospects of success.
Applicable principles/tests to the adjudication of an application for leave to appeal
and analysis of the ground of appeal
[14] Rule 49 of the Uniform Rules of Court dictates the form and process of an
application for leave to appeal and the substantive law pertaining thereto is to be found
in section 17 of the Superior Courts Act 10 of 2013. The latter Act raised the threshold
for the granting of leave to appeal, so that leave may now only be granted if there is a
reasonabl e prospect that the appeal will succeed. The possibility of another court
holding a different view no longer forms part of the test. There must be a sound,
rational basis for the conclusion that there are prospects of success on appeal. The
interpretation of the Rules and the Law has evolved in case law since 2013. In
numerous cases, the view is held that the threshold for the granting of leave to appeal
was raised with the inauguration of the 2013 legislation (Superior Courts Act 10 of
2013). The former assessment that authorization for appeal should be granted if "there
is a reasonable prospect that another court might come to a different conclusion" is no
longer applicable .
(15] The words in section 17(1) that: "Leave to appeal may only be given ... " and
section 17(1 )(a)(i) that: "The appeal would have a reasonable prospect of success·
are peremptory . "If there is a reasonable prospect of success" is now that: "May only
be given if there would be a reasonable prospect of success." A possibility and
discretion were therefore, in the words of the legislation and consciously so. amended
to a mandatory obligatory requirement that leave may not be granted if there is no
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reasonable prospect that the appeal will succeed. It must be a reasonable prospect of
success; not that another Court may hold another view.
[16) The court a quo may not allow for one party to be unnecessarily put through the
trauma and costs and delay of an appeal. In Four Wheel Drive v Rattan N. O.1the
following was ruled by Schippers JA (Lewis JA, Zondi JA, Molemela JA and
Mokgohloa AJA concurring):
"(34] There is a further principle that the court a quo seems to have overlooked -
leave to appeal should be granted only when there is 'a sound, rational basis for the
conclusion that there are prospects of success on appeal'. In the light of its findings
that the Plaintiff failed to prove locus standi or the conclusion of the agreement, I do
not think that there was a reasonable prospect of an appeal to this court succeeding
that there was a compelling reason to hear an appeal. In the result, the parties were
put through the inconvenience and expense of an appeal without any merit."2
Analysis and Conclusion
[17) Lastly, I extensively considered the Heads of Arguments by the Applicant and
the reply by the Respondents as well as submissions made. Having read further
papers filed, I cannot exclude the possibility that another court might come to a
different conclusion . I therefore conclude that there are reasonable prospects of
success.
[18] In the premise, I find that the application for leave to appeal deserves to be
successful and leave to appeal to Full Bench of this Division or Supreme court of
Appeal is therefore granted.
Costs
[18] The standard rule in an application for leave to appeal is that the cost of the
appeal is to be in the cause.
[19] I find no reason to deviate from the abovementioned standard principle.
1 2019 (3) SA 451 (SCA).
' Id at para 34.
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Order
[20) In the premise I make the following order.
1. Leave to appeal is granted.
2. The cost of the appeal is to be In the cause.
3. The Appeal be heard by the Supreme Court of Appeal.
__ c-._~_ BLESUFI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
For the Applicant
Instructed by: Adv. J De Beer SC
JB Haasbroek Attorney
For the Respondents · K Mnyandu
Instructed by: Lusenga Attorneys
Date of Hearing: 5 May 2025
Date of Judgement: 12 June 2025
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