IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 30715/2021
In the matter between:
MALOSE C MOGASHOA First applicant
MMAPULA L KEKANA Second applicant
JACOB J MABASA Third applicant
And
ZWAVEL’S NEST HOMEOWNERS ASSOCIATION
(PTY) LTD First respondent
COMMUNITY SCHEMES OMBUD SERVICE, GAUTENG Second respondent
KAREN BLEIJS (ADJUDICATOR) Third respondent
JUDGMENT – APPLICATION FOR LEAVE TO APPEAL
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED. YES
14 July 2025
Date Signature
Page 2 of 6
WILLIAMS, AJ
[1] This is an application for leave to appeal by the applicants. It pertains to an
appeal under section 57 of the Community Schemes Ombud Service Act, 9 of
2011 (“the CSOS Act”).
[2] The applicants were penalised financially under the rules of the first
respondent (“the Homeowners Association)” for not building on erven they own
in the estate , within stipulated time periods. The third respondent (“the
adjudicator”) was approached. She determined that the applicants are indeed
liable for those penalties. The next resort for the applicants was to appeal to a
High Court, under section 57 of the CSOS Act.
[3] In my judgment of 26 September 2024 I dismissed the applicants’ application,
which seeks to overturn the adjudicator’s decision.
[4] A Full Court of the Gauteng Division, Johannesburg, in Stenersen & Tulleken
Administration CC v Linton Park Body Park Corp orate & Another 1
determined that a section 57 Appeal “ is an appeal in the ordinary strict sense
…”. Further that such appeal “ … should be brought by way of a Notice of
Appeal …” . The Full Court indeed said that the process that should be
followed, is that “ … prescribed for al l appeals …”. A copy of the Stenersen
judgment is attached for ease of reference.
1 2020 (1) SA 65 (GJ).
Page 3 of 6
[5] The applicants brought their “appeal” under a notice of motion, supported by a
founding affidavit. No notice of appeal, setting out the grounds of appeal, was
filed.
[6] I was obviously bound by the dictates of the Full Court in Stenersen. That
Court was constituted specially to lay down the procedure for CSOS appeals in
the Gauteng Courts. I thus dismissed the application not launched as an
appeal. In effect, I held that the “appeal” brought as a motion cannot be
salvaged.
[7] There is m uch divergent authority in other Divisions of the High Court . Other
provinces prescribe that appeals under section 57 of CSOS must be brought
by way of notice of motion.2 A copy of the unreported judgment in the Allesio
Body Corporate3 matter is also attached for the convenience of the reader. It
demonstrates the divide best. There a CSOS appeal, brought in the Western
Cape under a notice of appeal , was held to not be properly before the Court .
The purported “appeal” was struck off the roll.
[8] I did not entertain the merits of the applicants’ “appeal”. Nor could I have,
since such appeals are seemingly presided over by two Judges. In my view
2 - See Trustees for the Time Being of the Avenues Body Corporate v Shmar yahu &
Another 2018 (4) SA 566 (WCC);
- The Body Corporate of Durdoc Centre v Singh 2019 (6) SA 45 (KZP).
3 - Trustees of Allessio Body Corporate v Lee Cottle & Another, Western Cape Division,
Cape Town, Case No A38/2022;
- Jan Christian Ellis v Trustees of Palm Grove Body Corporate (W 293/2020 P) [2021]
ZAKZPHC 97 (7 December 2021).
Page 4 of 6
the “appeal”, brought under notice of motion , was doomed. No application for
condonation was made, nor foreshadowed, to convert the motion proceedings
into an appeal procedure as required in Gauteng.
[9] It does not appear clearly from my judgment that the issue relating to
procedure had been canvassed (and exchanges were made) under Rule 30 .
The applicant wishe d to argue that the Rule 30 proceedings must be
determined first . The first respondent, in an attempt to get to the merits,
withdrew its Rule 30 application shortly before the hearing date.
[10] My approach was that the wrong procedure ( especially in the absence of an
application for condonation) was fatal. I thus raised that point mero motu, as a
single Judge. I mooted in my judgment that it was still open to the applicant to
launch an appeal, by filing the prescribed notice of appeal in fresh
proceedings. That would have to be accompanied by two applications for
condonation. The motion proceedings had been filed a day or two late . That
had been done, but I did not have to deal with it because of the view I took of
the application. Also, t he ensuing delay (caused by adoption of the wrong
procedure) would also have to be condoned.
[11] The applicants have, however, as they are entitled , elected to forge ahead on
the original papers , rather than start afresh. They now seek leave to appeal
against my dismissal of their “appeal” brought on motion . They argue that I
was wrong to dismiss the application/ “appeal” – since it was still capable of
Page 5 of 6
conversion into an appeal. They argue that I should not have regarded it as a
nullity. 4 They also contended that the appeal procedure prescribed in
Gauteng, is not the end -all, nor the be-all. They argue that in the notice of
motion the application was stated to be a section 57 appeal. The suggestion is
that, at worst for the applicants , I would have struck the matter off the Roll . In
essence that I should not have dismissed their application as abortive and
incapable of being remedied.
[12] 12.1. I am persuaded that, notwithstanding the absence of an application for
condonation then, I may have been too formalistic, despite the clear and
strict dictates of the Full Court in Stenersen. I am thus inclined to grant
applicants leave to appeal. I also have cause to doubt whether – sitting
as a single Judge – I should have dismissed their application/”appeal”.
If it was to be construed already as an appeal before me under CSOS,
then two Judges had to preside. This is the other side of the same coin.
12.2. In the ordinary course I would have granted leave to appeal to a Full
Court of the Gauteng Division, Pretoria. However, since there are
divergent Full Court judgments on this point, it seems prudent to grant
leave to the Supreme Court of Appeal . Even if I may have been correct
to dismiss the application/”appeal” as abortive, the applicants may, on
the basis of strong divergent authority , wish to challenge the appeal
procedure prescribed in Gauteng.
4 Para 1.1 of the notice of application for leave to appeal.
Page 6 of 6
12.3. I am alive to the fact that different procedure, in regard to the same type
of cases, may be prescribed in different Divisions of the High Court .
The import of the divergent judgments , however, seems to implicate
more than mere procedure . The divergence also impact s on
substantive law. When one reads the judgment in Trustees of
Allessio Body Corporate v Lee Cottle & 2 Others 5 and the reasoning
it repeats , it appears that motion proceedings may offer an appellant
opportunity to give more evidence to elucidate on the point of law, than
what an appeal record may offer.
[13] Leave to appeal is thus granted to the appellants to appeal to the Supreme
Court of Appeal, against my judgment and the resultant costs order. Costs of
the application for leave to appeal, are ordered to be costs in the appeal. The
scale of costs is reserved.
___________________________________
J O WILLIAMS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date heard : 1 July 2025
Date of judgment : 14 July 2025
Representation for the applicants : Adv C Korf
Instructed by Mphahlele & Masipa Inc.
Attorneys
Representation for the respondents : Adv J Hershensohn SC
Instructed by Lombard & Partners Inc.
5 See fn 3.