IN THE H IGH CO U RT OF SOU TH AF R ICA
GAU TE NG DIVISION , PR ETOR IA
CAS E NO: 033151/22
(l) REPOR TA BLE: ,¥g,LNO
(2) O F INTEREST TO O THER JUDG ES: ~ /N O
(3) REVISED.
25 AU G UST 2025
SIG NATURE DATE
In the matter between:
THE LEISURE BAY BODY CORPORATE (SS NO. 1411/2007) App licant
and
HARD YAKKA (PTY) LTD Respondent
JUDGMENT OF COSTS
LABUSC HAGN E J
[1] The applicant brought w inding-up proceedings against the respondent for
non-payment of levies in a sectional title scheme. The respondent is the
holder of a Rea l R ight of Extension in respect of property located to next to
Page 2
that of Oabile Trading (Pty) Ltd , in respect of which I delivered a judgment
related to the present judgment.
[2] The two matters were argued together. In both applications liquidation
proceedings were launched by the applicant but, as the matters have now
become disputed, the parties agreed to refer the matter to the Ombud in the
Community Schemes Ombud Services Act, 9 of 2011.
[3] Both applications for winding -up were consequently withdrawn but the issue
of costs remains to be decided.
[4] When an application is withdrawn, the normal principle is that the applicant
bears the costs. In a matter such as the present, however, the normal rule
would not be appropriate.
[5] The applicant’s attempts to obtain payment of outstanding levies from the
respondent was met with indifference and a lack of co-operation.
[6] The applicant has been seeking payment of outstanding levies since 2022.
[7] The last payment of levies was made in 2019.
[8] When the applicant sent a section 345 notice in terms of the Companies Act
to the respondent, the respondent responded by asking for copies of full
statements and invoices. The correspondence in this regard was scrutinised
and never was there a dispute raised by the respondent contesting its liability.
Page 3
[9] Only when the respondent instructed new attorneys in approximately May
2024 was a dispute regarding the underlying debt raised.
[10] The application against the respondent for its liquidation was set down for
hearing on 16 January 2023. A day before the hearing, the respondent
undertook to pay the full amount. The respondent, in fact, paid most of the
outstanding levies barring an amount of approximately R10 000.00.
[11] By its conduct the respondent consequently bound themselves to pay the
outstanding levies and is liable therefor (see Goldex 16 (Pty) Ltd v Body
Corporate of Waterford Golf and River Estate SS139/2006 [2018] ZAFSHC
193 (9 November 2019) at paragraph [60] where the following is stated:
“Applicant is not entitled to a declaratory order as sought. Although it is not
liable as owner of a Real Right of Extension reserved in terms of s 25(1) of the
Sectional Titles Act for the payment to the first respondent of any amounts
other than those r ecoverable in terms of s 3(1)(d) of the Management Act, it
has bound itself contractually to settle levies charged from time to time by the
Body Corporate in respect of all vacant premises, i.e. the areas of the common
property demarcated for future constr uction of houses, such levies to be
calculated and payable on a pro rate basis with owners of other sections.”
[12] The respondent has only disputed its liability as a matter of principle since
approximately May 2024. The dispute that currently exists serves before the
Ombud.
Page4
[13] In light thereof that the applicant w ithdraw s its liquidation application, the
follow ing order in respect of costs w ill follow :
1. The applicant is entitled to its costs in the w inding-up application until
the filing of the respondent's rule 6(5)(d)(iii) notice.
2. As from the aforesaid date of such notice, each party to pay its ow n
costs.
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
APPEARANCES:
ATTORNEYS FOR APPLICANT: MEERE ATTORNEYS
COUNSEL FOR APPLICANT: ADV J VORSTER
ATTORNEYS FOR RESPONDENT: LEN DEKKER ATTORNEYS INC
COUNSEL FOR RESPONDENT : VAN VUUREN