IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 027002/2024
In the matter between:
MIDSTREAM HOMEOWNERS’ ASSOCIATION NPC Plaintiff
And
ENOCK NGOBENI Defendant/Excipient
JUDGMENT
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 25 July 2025
Signature: _
2
NYATHI J
A. INTRODUCTION
[1] The applicant herein is the defendant in the action against him. The defendant
is before court for the hearing of an exception which he has filed against the
plaintiff.
[2] The defendant alleges in his exception that the nature of the particulars of claim
falls within the ambit and pivot of the Community Schemes Ombud Service
(CSOS). In his “notice of exception” the applicant raises grounds of Jurisdiction,
Nature of the dispute , Incorrect forum, Prejudice to defendant and Additional
costs and complexity . He then prays that this court uphold the exception and
direct the plaintiff to seek resolution through the Community Schemes Ombud
Service (“CSOS”).
[3] This application is opposed by the plaintiff in the action. For clarity and
consistency, I shall refer to the parties as in the action respectively.
B. BACKGROUND
[4] Summons was issued by the plaintiff against the defendant on 14 March 2024
and served on the defendant on 20 March 2024. the defendant served his notice
of intention to defend on 8 April 2024. The defendant served his notice of
exception on the plaintiff on 7 May 2024.
C. THE LAW ON EXCEPTIONS
[5] Rule 23 provides for two kinds of exceptions, namely:
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(a) an exception on the basis that a pleading is vague and embarrassing;
and
(b) an exception where a pleading lacks averments which are necessary to
sustain an action or defence.
[6] An exception on the ground that a pleading is vague and embarrassing must be
preceded by a notice affording the opponent an opportunity of removing the
cause of complaint. It is a rule of et iquette that, before an exception is filed on
the basis that a pleading lacks averments which are ne cessary to sustain an
action or defence, the opponent must be given an informal notice of the intended
exception.1
[7] It is trite that whenever an exception is taken to any pleading, the grounds upon
which the exception is founded must be stated clearly and concisely.2
The defendant’s case for the exception
[8] Since the comm encement of the CSOS Act ( Act 9 of 2011) , all common law
ceased to apply and all disputes within community schemes must be adjudicated
over by the CSOS as the forum of first instance.
[9] Defendant refers to and places reliance on the matter of Heathrow Property
Holdings No. 3 CC v Manhattan Place Body Corporate, 2021 (3) All SA 527
(WCC), where the High Court per His Lordship, Sher J, struck the application
from the roll with punitive costs, after considering an objection to the jurisdiction
1 LTC Harms - Amler’s Precedents of Pleadings 5th ed - p193 / 9th ed P 6.
2 Ibid. Uniform Rule 23. See also Commissioner for Inland Revenue v Viljoen 1995 (4) SA 476 (E).
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of the courts in a CSOS dispute as raised by the plaintiff. The court emphasized
that the Community Schemes Ombud Service (CSOS) is the primary forum for
such disputes, and approaching the High Court directly should only be done in
exceptional circumstances. Judge Sher however, did not decide what those
exceptional circumstances were.
[10] The court held that an application such as this is one that should be dealt with
in terms of the dispute resolution procedures which have been established by
the CSOS Act, and not by a Court.
[11] The defendant further referred to Wingate Body Corporate v Pamba and Another
(33185/2021) [2022] ZAGPPHC 46 (21 January 2022), the High Court; Gauteng
Division, Pretoria; where my learned brother Mbongwe J, dismissed the
application with costs, after considering the CSOS jurisdictional issue raised in
limine by the respondents. The court followed Sher J’s reasoning in the Heathrow
matter.
Respondent’s contentions
[12] The defendant has not specified the ground of his exception. The plaintiff has to
make an inference that the notice of exception by the defendant is in fact an
exception raised against the particulars of claim, due to the fact that the
defendant prays that the exception be upheld with costs.
[13] The above is because the defendant did not furnish the plaintiff with a notice in
terms of Uniform Rule 23(1) , allowing the plaintiff an opportunity to remove the
cause of complaint within 15 days of such notice and, furthermore, the defendant
also did not, within 10 days from the date upon which such a reply should have
been due, delivered the exception.
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[14] In Standard Bank of South Africa Limited and Others v Mpongo and Others ,
2021 (6) SA 403 (SCA) , the Supreme Court of Appeal reaffirmed that courts
should hear matters within their jurisdiction, even if specialised dispute resolution
mechanisms are available. The Court held that where a statute offers alternative
fora, it is a matter of sheer practicality that the initiating party may choose one or
the other.
[15] In South African Human Rights Commission v Standard Bank of South Africa Ltd
and Others 2023 (3) SA 36 (CC), Madlanga J writing for a unanimous
Constitutional Court, upheld th e views of the Supreme Court of Appeal
in Mpongo and endorsed the position in Agri Wire that “our courts are not entitled
to decline to hear cases properly brought before them in the exercise of their
jurisdiction” remains good law.
[16] In the matter of Coral Island Body Corporate v Hoge [2023] ZAWCHC 58
(unreported) handed down on 23 May 2019, Binns-Ward J held that courts may
not refuse to hear community scheme issues but should use their discretion
regarding costs to discourage inappropriate use of the courts for matters better
suited for the ombud.
[17] The decision in Bogatsu and Another v 108 on 8th Street Homeowners
Association [2024] ZAGPJHC 611 is a recent decision handed down on 28 June
2024 where Her Ladyship Mdalana-Mayisela J (Judge Strydom concurring)
provided a detailed critique of section 38(1) of the CSOS Act . The court noted
that section 38(1) of the CSOSA provides that any person may make an
application if such person is a party to or affected, materially by a dispute. The
court correctly held that when the word “ may” is read in the conte xt of section
38(1), it affords any person who is a party to or affected, materially by a dispute,
an election to make an application to CSOS. The wording of this section is not
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peremptory. It does not expressly state that the exhaustion of CSOS remedies
is an indispensable condition precedent to launching an application to court.3
[18] The court in Bogatsu applied the principles of interpretation as propounded by
the SCA in Natal Joint Municipal Pension Fund v Endumeni Municipality [2012]
2 ALL SA 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012) para [18].4
D. ANALYSIS
[19] Whilst the defendant’s exception may be afflicted by procedural non-conformity
as highlighted by the plaintiff, that is not all. It is further afflicted by the legal
substance underpinning it. The weight of legal authority is against excluding
jurisdiction of the courts as shown above.
E. CONCLUSION
[20] The exception accordingly cannot succeed. The procedural steps can therefore
not be interrupted thereby.
3 A.F. dos Santos – The Advisory: Community Schemes Specialists – 07 August 2024. [Acknowledged with thanks].
4See Bogatsu para [13] to [16].
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[21] The exception is dismissed with costs on the party and party scale , taxable at
scale B in terms of Rule 67A.
____________________
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 07/03/2025
Date of Judgment: 25 July 2025
On behalf of the Applicant: Adv E. Ngobeni
Instructed by: In person: [Trust account advocate on his own behalf.]
e-mail: AdvAndDrNgobeni@gmail.com / legalmatters@wealthworth.com Tel: 083 274
4975
On behalf of the Respondents: Adv. Prinsloo
Instructed by: VZLR Inc; Pretoria
elna@vzlr.co.za
Delivery: This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand-
down is deemed to be 25 July 2025.