THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG


Case A2023-126436







In the matter between:

THE BODY CORPORATE OF CENTRAL SQUARE

Appellant
And


PENELOPE BECK-PAXTON N.O.

First Respondent
ANDRE ANDREAS N.O.

Second Respondent
THE CHIEF OMBUD OF COMMUNITY SCHEMES
OMBUD SCHEMES

Third Respondent
PHILIP IAN TILLMAN Fourth Respondent

(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: YES



Date: 26 March 2025

2

Coram: Du Plessis J, Suth erland DJP, Davis J



JUDGMENT


DU PLESSIS J (with whom SUTHELAND DJP and DAVIS J concurring)

Introduction
[1] This is an appeal against the judgment of Dosio J, 1 which dismissed the Body
Corporate's application to review two adjudication orders issued by the Community
Schemes Ombud Services adjudicators ("adjudicator(s)") under the Promotion of
Administrative Justice Act ("PAJA"). 2

[2] This appeal proceeded on the premise that both adjudication orders ruled in
favour of the fourth respondent, Mr Tillman, against the appellant, the Body Corporate
of Central Square ("the Body Corporate"). In both instances, so was initially asserted,
the adjudicators found that the Body Corporate's amendments were unlawful and that
Mr Tillman's rights as a unit owner had been improperly affected. The Body Corporate
submits that both adjudicators erred in law when interpreting the Sectional Titles Act3
("STA") and the Sectional Titles Schemes Management Act4 ("STSMA").

[3] The High Court upheld the validity of the adjudication orders, and this appeal
challenges that decision.

[4] On 4 May 2016, Mr Tillman entered into a sale agreement to purchase a
residential unit in the Central Square sectional title scheme, a mixed-use sectional title
scheme developed by Lushaka Investments (Pty) Ltd in phases. The agreement
specified that upon the opening of the sectional title register, residential unit owners
would collectively hold 50% of the voting rights and would be liable for 60% of the total

1 Body Corporate of Central Square v Paxton N.O [2023] ZAGPJHC 24.
2 3 of 2000.
3 95 of 1986.
4 8 of 2011.

2
scheme expenditure. It also stipulated that the developer would retain the right to
develop the scheme in phases, as contemplated in section 25 of the STA, and to
allocate exclusive use rights over portions of the common property.

[5] On 2 October 2017, the developer amended the prescribed default
management rules under section 10(2)(a) of the STSMA
5 before opening the sectional
title register on 27 October 2017. This amendment aligned the scheme with its
anticipated mixed-use nature.

[6] In January 2019, the developer exercised its right of extension under section
25(1) of the STA,
6 creating a non-residential component. It then further amended the
management rules, altering the participation quota of the mixed-use scheme.

The first adjudication (2017 Amendment)
[7] In the first adjudication concerning the 2017 amendment, Ms Beck-Paxton
concluded that Mr Tillman's written consent was not obtained before the amendment
of the management rules as required by section 11 of the STSMA and that he was
adversely affected by the rule. However, the application was dismissed because Mr
Tillman did not bring it within the required time limit prescribed in section 41 of the

5 Section 10(2) “The rules must provide for the regulation, management, administration, use and enjoyment of
sections and common property, and comprise- (a) management rules, as prescribed, which rules may subject to
the approval of the chief ombud be substituted, added to, amended or repealed by the developer when submitting
an application for the opening of a sectional title register, to the extent prescribed by regulation, and which rules
may be substituted, added to, amended or repealed by unanimous resolution of the body corporate as prescribed;”
6 Section 25. “Extension of schemes by addition of sections and exclusive use areas or by addition of exclusive
use areas only.-(1) A developer may, subject to the provisions of section 4 (2), in his or her application for the

registration of a sectional plan, reserve, in a condition imposed in terms of section 11 (2), the right to erect, complete
or include from time to time, but within a period stipulated in such condition or such extended period as may be
agreed upon (by unanimous resolution of the body corporate and with the consent of the bondholders existing on
the date of the taking of the unanimous resolution, which resolution and consent must be obtained by the notary
and filed in his or her protocol) prior to the expiry of the stipulated period, by way of a bilateral notarial deed, for his
or her personal account-
(a) a building or buildings;
(b) a horizontal extension of an existing building;
(c) a vertical extension of an existing building,
on a specified part of the common property, and to divide such building or buildings into a section or sections and
common property and to confer the right of exclusive use over parts of such common property upon the owner or
owners of one or more sections, or to delineate exclusive use areas on or in specified parts of the land and buildings
in terms of section 5 (3) ( f ) and to confer the right of exclusive use over such areas upon the owner or owners of
one or more sections.”

3
Community Schemes Ombud Services Act ("the CSOSA"). 7 She ordered that the
association had to, within 30 days of the order, call a general meeting of its members
dealing with these issues.

[8] The Body Corporate applied to review the second adjudication order, but the
court a quo dismissed the application.

[9] Initially, the Body Corporate sought to appeal the dismissal of both adjudication
orders. However, since the first complaint was dismissed due to non-compliance with
the time limit in section 41 of the CSOS Act, the Body Corporate erroneously sought
a review in the court a quo, and will not be considered by this court. The effect of the
dismissal is that the 2017 amendment to the management rules remained valid and
binding. There is no basis for further review or setting aside the 2017 amendment.

[10] Furthermore, the adjudicator directed that a general meeting be convened to
discuss the 2017 certificate and the composition of the Body Corporate. That meeting
has already taken place. Consequently, any submission relating to section 39(3)(c)
and (d) of the CSOS Act is moot and will not be considered by this court.

[11] As a result, the scope of this court's consideration is substantially narrowed.
The only remaining issue before this court is the appeal against the dismissal of the
second review application, which concerns the 2019 amendments.

The second adjudication (2019 Amendment)
[12] In 2019, the developer, exercising its reserved right to extend the scheme and
create a non-residential component, issued a further certificate amending the
management rules. Mr Tillman contends that this amendment altered the participation
quotas and introduced a new levy apportionment method, which benefited the owner
of the commercial section, namely, the developer itself. The Body Corporate submits

7 9 of 2011.

4
that sections 32(2)8 and 11(2)9 of the STA grant the developer the authority to structure
participation quotas as it did.

[13] In the second adjudication, concerning the 2019 amendment, the adjudicator,
Mr Andreas, set aside the amendment, holding that it was inconsistent with statutory
provisions, as it was not passed by unanimous resolution, as required, and that it
unfairly shifted financial burdens onto residential owners, rendering it procedurally and
substantively unlawful.

[14] The court a quo dismissed the Body Corporate's review application. It upheld
the adjudicator's finding that the amendment was unlawful because it was not passed
by a unanimous resolution, as required under section 10(2)(a) of the STSMA, and that
it adversely affected residential owners without their written consent, contrary to
section 11(2)(b) of the STSMA.
10 The Body Corporate appeals this ruling, submitting
that the court a quo misapplied these provisions by failing to consider the developer's
reserved rights under section 25 of the STA read with section 10(7) of the STSMA,
11
and because Mr Tillman had consented to this in his sale agreement. The existence
and exercise of the right of extension under section 25 of the STA is not in dispute.

[15] The court a quo also granted relief under section 8(1)(d) of PAJA. The Body
Corporate submits that this was procedurally improper, as the court could not grant

8 “Section 32 (2) Subject to the provisions of section 17 of the Sectional Titles Schemes Management Act, in the
case of a scheme other than a scheme referred to in subsection (1), the participation quota of a section shall be a
percentage expressed to four decimal places, as determined by the developer: Provided that-
(a) where a scheme is partly residential as defined in any applicable operative town planning scheme,
statutory plan or conditions subject to which a development was approved in terms of any law, the total of

the quotas allocated by the developer to the residential sections shall be divided among them in proportion
to a calculation of their quotas made in terms of subsection (1);
(b) where a developer alienates a unit in such a scheme before the sectional title register is opened, the
total of the quotas allocated to the respective sections and the participation quota of that unit must be
disclosed in the deed of alienation; and
(c) where such disclosure is not made, the deed of alienation shall be voidable at the option of the
purchaser and that the provisions of section 25 (15) (b) shall mutatis mutandis apply in respect of any
such alienation.”
9 Section 11 (2) “When making application for the opening of a sectional title register and the registration of a
sectional plan, a developer may in the schedule referred to in subsection (3) (b) impose registrable conditions.”
10 Section 11(2)(b) (b) “Where an owner is adversely affected by such a decision of the body corporate, his or her
prior written consent must be obtained.”
11 Section 10(7) “A developer or a body corporate may make management or conduct rules which confer rights of
exclusive use and enjoyment of parts of the common property upon members of the body corporate.”

5
such relief without first declaring the amendment invalid under PAJA or without a
counterapplication by Mr Tillman.

On appeal
[16] A sectional owner's dominium is inherently limited due to the nature of sectional
titles as "fragmented land tenure".
12 Ownership of the section is limited by the
enforcement of other real rights and restrictive conditions endorsed on the title deed
or indicated on the sectional plan. What legislation does is to define the nature of the
relationship between the developer, the body corporate and the owner. The dispute in
the second adjudication is a good example of why this is necessary.

[17] The STA defines and regulates the relationship between the three key parties
in sectional ownership: the developer, the sectional owner, and the body corporate. It
is important to reiterate that when a sectional plan is registered at the Deeds Registry,
an application for the opening of a sectional title scheme is lodged. As part of this
process, and in terms of section 10(2) of the STSMA,
13 a certificate by a conveyancer
must be lodged to confirm whether the prescribed management rules have been
substituted or amended.
14

[18] In this case, such a certificate was filed in October 2017, introducing
amendments to certain management rules, particularly those concerning participation
quotas and levies. Since the first adjudication dismissed Mr Tillman's complaint
regarding these amendments on procedural grounds, the 2017 management rules
remain valid and binding.

12 JG Horn The legal effect of rights specific to sectional title property in South Africa, with reference to selected
aspects of the Australian and Dutch law (2018) LLD, NWU at p 81.
13 Section 10(2) “The rules must provide for the regulation, management, administration, use and enjoyment of
sections and common property, and comprise- (a) management rules, as prescribed, which rules may subject to

the approval of the chief ombud be substituted, added to, amended or repealed by the developer when submitting
an application for the opening of a sectional title register, to the extent prescribed by regulation, and which rules
may be substituted, added to, amended or repealed by unanimous resolution of the body corporate as prescribed;
and
(b) conduct rules, as prescribed, which rules may, subject to the approval of the chief ombud, be substituted, added
to, amended or repealed by the developer when submitting an application for the opening of a sectional title register,
and which rules may be substituted, added to, amended or repealed by special resolution of the body corporate,
as prescribed: Provided that such conduct rules may not be irreconcilable with any prescribed management rule
contemplated in paragraph (a).”
14 JG Horn The legal effect of rights specific to sectional title property in South Africa, with reference to selected
aspects of the Australian and Dutch law (2018) LLD, NWU at pp 84 – 85.

6

[19] Section 25(1) of the STA then governs the developer's right to extend the
scheme, allowing for the construction of additional sections or the further development
of the common property as initially envisaged in the sectional plan. This provision must
be read together with section 10(7) of the STSMA, which empowers the developer to
make rules conferring exclusive use rights over portions of the common property
without requiring the consent of the Body Corporate or individual unit owners.

[20] When a developer exercises this right, it binds the common property of the
sectional title scheme, meaning that all sectional owners' rights are inherently affected
due to their co-ownership of the common property. The Body Corporate submits that
the 2019 amendments were lawfully made in terms of section 10(7) of the STSMA,
read with section 25(1) of the STA, submitting that the developer acted within its rights
when making these changes.

[21] The right to extend a sectional title scheme by adding new units and/or
exclusive use areas is established at the inception of the scheme, when the developer,
who at that stage is still the sole owner of the land and applies for the opening of the
sectional title register at the Deeds Registry. This right is then incorporated as a
registered condition of the newly established scheme and is recorded in a certificate
prepared by a conveyancer, which is submitted alongside the application to open the
sectional title register.
15 Once exercised, this right di rectly impacts sectional owners'
co-ownership in the common property, as the extension of the scheme introduces new
sections and may alter participation quotas or exclusive use allocations.

[22] For this reason, the legislation seeks to balance the developer's flexibility to
expand the scheme in response to market demands or other considerations, and the
purchaser's right to full disclosure, ensuring that they have sufficient information to
make an informed decision when acquiring a unit.
16

make an informed decision when acquiring a unit.
16


15 JG Horn The legal effect of rights specific to sectional title property in South Africa, with reference to selected
aspects of the Australian and Dutch law (2018) LLD, NWU at p 103.
16 CG Van der Merwe Sectional Titles, Share Blocks And Time-sharing (2025) at 12-89

7
[23] To achieve this balance, the right of extension must be disclosed in the deed of
alienation to every purchaser in the scheme. 17 This includes details of exclusive use
areas, which must be clearly indicated on a sectional plan. 18 Nothing on the record
suggests that this requirement was not complied with in this instance.

[24] Within this context, the sale agreement must be assessed, particularly in light
of the statutory requirements governing the disclosure of the developer's right of
extension and whether Mr Tillman was adequately informed of any potential changes
to the scheme. Clause 25 of the sale agreement stated:

"It is recorded that the seller will devel op the scheme in phases as contemplated in
Section 25 of the Act and will reserve, on the opening of the Sectional Title Register,
the right, in its favour, to erect and complete , from time to time, for its own account,
further buildings on specified parts of the common property as indicated on annexure
4 read with annexure 8, and to divide thos e buildings into sections and common
property and to confer the right of exclus ive use over parts of the common property
upon the owner or owners thereof." [own emphasis]

[25] This is then what the 2019 amendments did, by providing:

"1. In terms of Section 10(7) of the Act, the management rules have been added to by
the allocation of exclusive use areas in terms of Section 10(8)(a) and (b) of the said
Act as will more fully appear from the Lay-Out Plans attached marked annexures "AI"
to "A5" and read with the Schedule annexed marked annexure "B".
2. In terms of Section 10(2)(a) of the Act, read together with section 25(1) of the
Sectional Titles Act 95 of 1986, the management rules are added to by the insertion of
the following additional rules:

2.1 In terms of section 3(1)(c) of the Act, the owners of the commercial units to
which rights of exclusive use and enjo yment of defined parts of the common

which rights of exclusive use and enjo yment of defined parts of the common
property allocated in accordance with t hese rules and, similarly, rights of
owners of residential units to whom the rights of exclusive use and enjoyment
of defined parts of the common property allocated in accordance with these

17 Section 25(14) of the STA.
18 Section 25(2)(b) of the STA.

8
rules shall be responsible, either singularly where such rights have been
allocated to one section directly or join tly, where rights are allocated to one or
two or more sections, be responsible for the costs of the insurance and
maintenance of such parts of the common property. Such costs shall be
allocated to the particular owners in accordance with the ratio that each section
bears to the total area of all of the sect ions entitled to the joint exclusive use
rights of that part of the common property.

This Certificate is made in terms of the Community Scheme known as CENTRAL
SQUARE SS 661/2017 situate at Portion 1 of Erf 1735, Morningside Extension 170
Township." [own emphasis]

[26] Thus, the Body Corporate complied with the statutory requirements regarding
the extension and exclusive use areas. The developer had disclosed its right of
extension and its authority to determine exclusive use areas in the contract of sale. Mr
Tillman was made aware of these provisions before purchasing his unit. He proceeded
with the transaction, thereby binding himself to the 2019 amendment by virtue of the
deed of sale, read with section 25(1) of the STA and section 10(7) of the STSMA. The
2019 amendment implements the developer's right to extend the scheme and to
allocate exclusive use rights. Section 3(1)(c) of the STSMA permits the developer to
apportion financial responsibility for maintenance and insurance to those benefitting
from these exclusive areas.

[27] There appears to have been a conflation between the 2017 and 2019
amendments, particularly regarding the claim that levies nearly doubled due to the
2019 amendment, in both the adjudication and the court a quo. The 2017 amendment,
which addressed, among other things, levi es and participation quotas, aligned the
provisions of the sale agreement with the mixed-use nature of the development.

[28] The 2019 amendment, therefore, did not alter the management rules governing

[28] The 2019 amendment, therefore, did not alter the management rules governing
levies or participation quotas, as those matters had already been addressed in the
2017 amendment. Any challenge to the 2017 rules in the second adjudication should
be disregarded, as the validity of those rules was not before the second respondent.

9
Furthermore, the 2017 amendment remains valid and binding, for the reasons already
discussed.

[29] For these reasons, I disagree with the findings and order of the court a quo
regarding the 2019 adjudication. The adjudicator's decision was influenced by a
material error of law and is accordingly declared invalid and set aside. Since the court
a quo erred in setting aside the 2019 amendments, its order must be reversed.

Relief granted in terms of PAJA
[30] The Body Corporate submits that section 8(1)(d) of PAJA is only triggered once
a declaration of invalidity has been made in terms of section 6(1) of PAJA. Since the
court a quo did not make a finding of invalidity, the remedies provided under section
8(1)(d) were not available.
19 No relief under section 8(1)(d) could lawfully be granted
without such a declaration. Accordingly, the relief granted by the court a quo under
section 8(1)(d) of PAJA is set aside.

Costs
[31] The Body Corporate sought an order for costs, including the costs of two
counsel. Although the issues ultimately before this court were significantly narrowed,
the complexity of the matter required a careful examination of multiple adjudication
orders and an analysis of various statutory provisions. Given the legal intricacies
involved, the engagement of two counsel was justified. Accordingly, the costs of two
counsel are awarded on scale B.

Order
[32] The following order is made:

1. The appeal is upheld, with costs, including the costs of the application for leave
to appeal and those occasioned by the employment of two counsel where so
employed, to be taxed on scale B.
2. The order of the Court a quo is set aside and substituted with the following:

19 See Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 4 SA 113 (CC) at para 84.

10
a. The 2019 amendment to the management rules is lawful and binding.
b. The award of the Second Respondent is reviewed and set aside.


____________
WJ du Plessis
Judge of the High Court
Gauteng Division, Johannesburg


Date of hearing:

5 February 2025
Date of judgment:

26 March 2025
For the appellant:

W Luderitz SC with S Mushet instructed
by Hajibey Bhyat Mayet & Stein

For the respondent:

M Oppenheimer instructed by D'Arcy
Herrman Rane
y Inc