SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy




THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:171/2024



In the matter between:
PARCH PROPERTIES 72 (PTY) LTD APPELLANT
and
SUMMERVALE LIFESTYLE ESTATE
OWNERS’ ASSOCIATION FIRST RESPONDENT
THE CITY OF CAPE TOWN SECOND RESPONDENT
THEODORE BROPHY 119TH RESPONDENT
WILLEM HENDRIK DU PREEZ 192ND RESPONDENT
AND 287 OTHER RESPONDENTS

Neutral citation: Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate
Owner’s Association and Others (171/2024) [2025] ZASCA
155 (17 October 2025)
Coram: MOKGOHLOA, BAARTMAN and COPPIN JJA, and
STEYN and TOLMAY AJJA
Heard: 14 May 2025
Delivered: This judgment was handed down electronically by circulation to
the parties' representatives by email, published on the Supreme Court of Appeal

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website, and released to SAFLII. The date and time for hand-down is deemed to
be 11h00 on 17 October 2025.

Summary: Community Schemes Ombud Act 9 of 2011 – jurisdiction of the
high court not ousted – whether refusal to amend the constitution of a
Community Scheme was reasonable – test for reasonableness objective and fact
based – refusal was reasonable.

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ORDER

On appeal from: Western Cape Division of the High Court, (Adhikari AJ
sitting as court of first instance):
1. The appeal is dismissed with costs, including the costs of two counsel
where so employed.

JUDGMENT

Mokgohloa and Baartman JJA (Coppin JA, and Steyn and Tolmay AJJA
concurring):

Introduction
[1] The appellant, Parch Properties 72 (Pty) Ltd (Par ch), unsuccessfully
applied to the Western Cape Division of the High Court (the high court), for
declaratory relief ,1 declaring, among other things, that its development on Erf
6[...] (the garden cottages) be included in the definition of ‘ Area’ in the
constitution of Summervale Lifestyle Estate Owners’ Association ( the HOA) .
The latter is a property owners ’ association within the definition of ‘community
scheme’ in s 1 of the Community Scheme Ombud Services Act 9 of 2011 (the

1 ‘1. 1. That a Rule Nisi be issued calling upon all interested parties to show cause, … why an order in the
following terms should not be granted:
1.1 That it is declared that the Constitution of the First Respondent …be interpreted in the following terms:
That the “Area”, as defined at clause 2.1.2 of the Constitution, is to include Erf 6343, Strand, in addition to
Erf 5070 Strand.
1.2 That it is declared that the owner of the properties situated on Erf 6343, Strand is a member of the First
Respondent, by virtue of its ownership, as contemplated by clause 5 of the Constitution, and that it has been
a member since 1 December 2014, alternatively from such date as the court may determine….
1.3 In the alternative, that it is declared that paragraphs 1.1 and 1.2 supra are implied by operation of law and/or
had been agreed to by all the relevant parties tacitly….’

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CSOS Act). The appeal and conditional cross- appeal is with leave of the high
court. At the hearing the cross-appeal was abandoned.

[2] In 2002, the City of Cape Town (the City) approved an application 2 by
the developer, White Waves Trading (Pty) Ltd (White Waves), to subdivide and
rezone Erf 5[...] to be developed as a retirement village within a gated
community. The development would include cluster homes, sectional title units,
a club house, a frail care centre and an administrative block. The City imposed
several conditions on the approval, including that a H ome Owners’ Association
(HOA) be established with an approved constitution. Those conditions were met
and that constitution forms the subject of this litigation. The development is
known as the Summervale Lifestyle Estate (Summervale).

[3] The development on Erf 5[...] was completed in two phases : – phase 1
consisted of 162 free -standing cluster homes and phase 2 consist ing of 78
sectional title flats and a care centre. In 2010- 2011, White Waves applied for
and was granted permission
3 for the rezoning, departure and phasing of Erf
6[...]. The latter is adjacent to Erf 5[...] , the property of the HO A. The City
granted the permission subject to certain conditions. One of which is the
following:
‘(v) that the subject property resort under the Summervale Lifestyle Estate
Home Owner’s Association and that their constitution be amended accordingly.’

[4] Erf 6[...] was developed into 55 garden cottages, with garages, storage
rooms, private roads and private open spaces (the garden cottages). The garden
cottages, with a design style similar to the dwellings on Summervale, are rented
out. The HOA has since 2010 recognised the owner of Erf 6[...] as a member of
Summervale, in that it was represented at annual general meetings as the owner

2 In terms of the Land Use Planning Ordinance 15 of 1985 (LUPO).
3 Section 42 of LUPO.

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of phase 3 and exercised a pro rata vote according to the units it ow ned in
phases 1, 2 and 3. The HOA therefore charged levies in respect of the garden
cottages, which were paid without demur. Since 2014, the garden cottages have
become fully integrated with Summervale , in that its tenants use the same
shared access points and private roads and the same security measures apply to
both developments. In 2015- 2016, White Waves, as a developer of the erf, sold
Erf 6[...] and all its rights therein to Parch. Since 2015, the latter’s director has
been one of the HOA’s trustees.

[5] In 2021, a group of Summervale residents (the Venter group) questioned
whether the garden cottages, phase 3, formed part of Summervale. They argued
that clause 5.1 of Summervale’s constitution provided that: ‘[m] embership of
the Association shall be evidenced by registered ownership in the Deeds
Registry in Cape Town of one or more erven in the Area’. The Venter group
further contended that ‘Area’ is defined in Clause 2.1.2 as ‘the [r]emainder of
Erf 5[...] The Strand, including any subdivision thereof’. It is common cause
that the garden cottages are on Erf 6[...] , which is not included in the definition
of ‘Area’ in the constitution.

[6] On 11 April 2022, Summervale’s Trustees Committee unsuccessfully
sought to amend the constitution in terms of clause 14.2
4 by round robin ballot.
Only 68% of the voters favoured the amendment , instead of the required 75%.
The following amendment was sought:
‘Motion to Amend [HOA] Constitution dated 2 August 2013:
The current description of “2. DEFINITIONS
2.12 “Area” shall mean the remainder of Erf 5[...] The Strand, including any subdivision
thereof;”
To be amended to read as follows, with the inclusion of the underlined words:

4 Clause 14.2 of the Summervale Constitution ‘Amendments to the Constitution: …The Constitution may also
be amended at any other stage, provided that 75% of all members grant their written consent to the amendment.’

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2.1.2 “Area” shall mean the remainder of Erf 5[...] and Erf 6[...] The Strand, including any
subdivision thereof”
2. The amendment to be effec tive retroactive to 1 December 2014 when [the appellant]
effected the first levy payments to Summervale Lifestyle Estate Owners Association’.

[7] On 6 June 2022, the Committee , in terms of clause 14. 1,5 made another
unsuccessful attempt to amend the constitution. The motion was opposed by a
large majority. At the time, 43 of the garden cottages had already been built and
the rest were in progress. Litigation followed in which Parch sought a declarator
that the garden cottages were included in the word ‘Area’ in the HOA
constitution. T wo members of the Venter group, the 119 th and 192 nd
respondents, opposed the matter. However, 97 other members of the Venter
group, 74 single residential home owners and 23 sectional title owners, have
expressed support for the opposition in a petition . They have not formally
opposed as the possibility of adverse costs orders appears to have been daunting
in their twilight years . Therefore, reference to the Venter group from this point
is reference to the 119 th, 192nd respondents, as well as those petitioners. So as
not to incur costs, t he HOA abided by the outcome , and in correspondence
dated 28 November 2022; its trustees said that they ‘support the relief moved
for by the applicant’.

[8] In addition to the relief sought, referred to above, Parch also sought the
following:
‘1.4 In the further alternative, that in terms of section 39(4) (d) of the Community Scheme
Ombud Services Act 9 of 2011 [ CSOS Act], it is declared that the motion(s) which refused
the amendment to the Constitution in terms of prayer 1.1 supra are declared to be
unreasonable and that they be set aside and substituted with a motion that reads as follows…:

5 Clause 14.1 ‘The Constitution may be amended at the Annual General Meeting of the Association. Each

amendment shall be approved by 50% plus 1 of the total number of members, personally or represented by
proxy.’

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“That clause 2.1.2 of the Constitution of the Summervale Lifestyle Estate Owners’
Association is amended by changing the definition of “Area” to include Erf 6[...] , Strand, in
addition to Erf 5[...].”’

[9] The high court was persuaded that the matter ‘hinges on complex and
novel issues of law’ which constituted special circumstances that justified Parch
launching the application in the high court instead of approaching the Ombud in
terms of the CSOS Act. The abandoned cross appeal related to that finding.

[10] Parch is n o longer pursuing the relief sought in pr ayers 1.1 to 1. 36.
Instead, it has limited its appeal in this Court to the alternative relief sought in
terms of the CSOS Act. Therefore, the issues in this appeal are:
(a) Whether the high court correctly assumed jurisdiction to entertain the
matter as a court of first instance.
(b) Whether the high court erred in holding that the opposition to the motion
to amend the constitution was reasonable.

Did the high court have jurisdiction to entertain the application as a court
of first instance?
[11] In opposing the application, the Venter group denied that the high court
had jurisdiction to entertain the matter. Since Parch sought relief in terms of s
39(4)(d) of the CSOS Act, so the submission went, the Ombud, and not the high
court had jurisdiction over the dispute. Furthe r, that the high court’s jurisdiction
was limited to appeals and reviews from the Ombud. The high court, relying on
Heathrow Property Holdings N o 33 CC and Others v Manhattan Place Body
Cooperate and Others 7 (Heathrow) held that ‘ if the Ombud has the jurisdiction
to grant such orders, I must decline to determine the matter, unless there are

6 See footnote 1 above.
7 Heathrow Property Holdings No 33 CC and Others v Manhattan Place Body Corporate and Others [2021]
ZAWCH 109; [2021] 3 All SA 527 (WCC); 2022 (1) SA 211 (WCC) para 61.

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exceptional circumstances warranting the c ourt determining the matter as a
forum of first instance ’. The high court found that there were exceptional
circumstances present that clothed it with jurisdiction.

[12] In considering the issue of jurisdiction, w e find it necessary to outline the
purpose, and the relevant provisions of the CSOS Act. Its purpose is to provide
for: (a) the establishment of the Community Schemes Ombud Service (the
service); (b) its mandate and functions; (c ) a dispute resolution mechanism in
community schemes; and (d) to provide for matters connected therewith.
Importantly, the CSOS Act was established, inter alia, for the purpose of
providing an expeditious and informal cost -effective mechanism for the
resolution of disputes.

[13] Section 38(1) of the CSOS Act provides that any person who is a party to
or affected by a dispute, may make an application to the Ombud. A dispute for
the purpose of the CSOS Act is defined as ‘ a dispute in regard to the
administration of a community scheme between persons who have a material
interest in the scheme, of which one of the parties is the association, occupier or
owner, acting individually or jointly’ . Section 39 provides for the relief that can
be claimed in the application. It states:
‘An application made in terms of s 38 must include one or more of the following orders:
(1) ...
(2) …
(3) In respect of scheme governance issues –
(a) an order requiring the association to record a new scheme governance provision
consistent with a provision approved by the association;
(b) an order requiring the association to approve and record a new scheme governance
provision;
(c) ...

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(d) an order declaring that a scheme governance provision, having regard to the interests
of all owners and occupiers in the community scheme, is unreasonable, and requiring the
association to approve and record a new scheme governance provision –
(i) . . .
(ii) . . .
(iii) to amend the provisions; or
(iv) to substitute a new provision.
(4) In respect of meetings –
(a) ...
(b) ...
(c) ...
(d) an order declaring that a motion for resolution considered by a general meeting of the
association was not passed because the opposition to the motion was unreasonable under the
circumstances, and giving effect to the motion as was originally proposed, or a variation of
the motion proposed; or
(e) ...’

[14] As indicated abov e, a dispute is defined as one regarding the
administration of a community scheme between persons with an interest in the
scheme, and one of the parties being the association. The section provides that
‘a person may make an application’. Once the choice is exercised, the
application ‘must’ be made in the prescribed manner. That is a clear indication
of a choice of forum. In addition, ‘ association’ is defined as ‘any structure that
is responsible for the administration of a community scheme’. The HOA is not
an opposing party in this dispute, it being common cause that it supports Parch’s
application. Parch is also not a member of the Summervale community, and it
failed twice to obtain the required votes to amend Summervale’s constitution to
include it as a member.

[15] In addition, ‘community scheme’ is defined as:

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‘…any scheme or arrangement in terms of which there is shared use of and responsibility for
parts of land and buildings , including but not limited to sectional titles development scheme,
a share block…’
In Coral Island Body Corporate v Hoge (Coral Island),8 the court dealt with a
dispute in which the body corporate of a residential property sectional title
scheme sought declaratory and interdictory relief against one of its members.
The dispute involved mundane issues of unauthorised alterations with inferior
piping to a geyser overflow. Despite the mundane nature of the dispute, the
court held that:
‘Compelling constitutional and social policy considerations informed the introduction of the
legislation that is manifest in the Ombud Act. The promotion of access to justice by those not
easily able to afford to litigate in the civil courts was but one of those considerations. Another
was the social utility to be achieved by the provision of a relatively cheap and informal
dispute resolution mechanism for the disposal of community -scheme-related issues. It
requires little insight to appreciate that those commendable policy considerations would be
liable to be undermined if the courts were indiscriminately to entertain and dispose of matters
that should rather have been brought under the Ombud Act. Whilst judges and magistrates
may not have the power to refuse to hear such cases, they should, in my view, nonetheless use
their judicial discretion in respect of costs to discourage the inappropriate resort to the
courts in respect of matters that could, and more appropriately should, have been taken to
the Community Schemes Ombud Service’. (Own emphasis.)

[16] The Coral Island approach is consistent with the Constitution and the
purpose of CSOS and related legislation. This Court in Standard Bank of SA Ltd
and Others v Thobejane and Others 9 (Thobejane) held the following about the
abuse of a forum:

abuse of a forum:
‘In our country, the Constitution establishes judicial authority. Several Courts are created.
Section 166 (b) creates the High Court and s 166(d) creates the Magistrates’ Courts. The

8Coral Island Body Corporate v Hoge [2019] ZAWCHC 58, 2019 (5) SA 158 (WCC 2019 (5) SA 158 (WCC)
paras 8-10.
9 Standard Bank of SA Ltd and Others v Thobejane and Others ; Standard Bank of SA Ltd v Gqirana N O and
Another [2021] ZASCA 92; [2021] 3 All SA 812 (SCA); 2021 (6) SA 403 (SCA) paras 15 and 59.

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scope of the substantive decision- making power of these courts is addressed in ss 169 and
170.
…
…Thirdly, courts may make appropriate costs orders. In Goldberg v Goldberg, Scheiner J
said that not only could a ‘successful applicant be awarded only magistrate’s court costs but
he may even be deprived of his costs and be ordered to pay additional costs incurred by the
respondent by reason of the case having been brought to the Supreme Court’. The application
of all these rules involves a fact specific enquiry on a case-by-case basis…’


[17] Generally, the high court has authority to hear any matter that comes
before it, unless the specific law or rule expressly limits that authority or grants
it to another tribunal. The question is whether such limitation can be implied.
This Court in Thobejane restated what Kriegler J held in Metcash Trading Ltd v
Commissioner South African Revenue Service and Another 10 that ‘there is a
strong presumption against the ouster of the High Court’s jurisdiction, and the
mere fact that a statute vest jurisdiction in one court is insufficient to create an
implication that the jurisdiction of another court is thereby ousted’.

[18] The CSOS Act does not explicitly or implicitly exclude the high court’ s
inherent jurisdiction to hear community scheme dispute s. The fact that the
Ombud has wider powers does not imply the exclusion of the court’s
jurisdiction. In our view, the Act was designed to co-exist with the court system
providing the parties with a choice of a forum, not to replace it entirely.

[19] Counsel on behalf of Parch submitted, correctly in our view, that the high
court had jurisdiction to entertain the application as a court of first instance. We
are persuaded that the high court did not need exceptional circumstances to
entertain this application as a court of first instance. The dispute is deserving of

10 Metcash Trading Ltd v Commissioner South African Revenue Service and Another 2001 (1) SA 1109 (CC)
para 43

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the high court’s attention and should not have attracted a Coral Island costs
order, had Parch been successful.

Was it reasonable to refuse to amend the constitution?
[20] It is apparent that Phase 3 was envisaged as part of a retirement village.
In opposing the amendment to the constitution, the Venter group complained
that the garden cottages are rented out without any regard for the age of the
tenants, t hereby compromising the character of Summervale ’s retirement
village. Parch has not disputed that allegation. That is a relevant consideration
in determining the reasonableness of the opposition to the motion to amend the
constitution.

[21] The test for reasonableness is objective and requires a balancing of all
relevant factors. Both parties agreed with the following test as formulated in the
Australian case Albrecht v Ainsworth & Others:11
‘…the test was objective, requiring a balancing of factors in all the circumstances according
to the ordinary meaning of the term reasonable. …The question was not whether the decision
was “correct” but whether it was objectively reasonable. A logical and understandable basis
for a decision was a relevant but not determinative factor in deciding reasonableness which
was ultimately a question of fact. The subjective intention of the individual lot owner s who
opposed the motion was not the test; the opposition must be considered objectively, taking
into account all relevant circumstances…’

[22] As indicated above , Parch relies on the historic inclusion of the garden
cottages in Summervale and alleges that a mutually beneficial relationship
existed and f urther, that it was widely accepted that the garden cottages are
‘phase 3’ of Summervale. Conversely, t he Venter group contends that

11 Albrecht v Ainsworth & Ors [2015] QCA 220 para 22. The reliance on the Australian authority is persuasive,
since the Community Scheme Ombud Service Bill, the predecessor of the CSOS Act, was modelled on Chapter

6 of the Queensland Body Corporate and Community Management Act of 1997. See LAWSA Vol 24:
‘Sectional Titles’ at para 377.

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Summervale’s constitution provides, in unambiguous terms , that ‘only the
registered owners of erven and sectional title unit (s) on Erf 5[...], including any
subdivision thereof, are members of the first respondent [HOA]’. Therefore, the
HOA is the legal entity and owner of the common property, worth
approximately R60 million, in which members own individual properties. White
Waves started to develop the adjacent property, Erf 6[...], which it referred to as
the ‘ phase 3 of the Summervale Estat e development,’ ten years after the
establishment of Summervale. The Venter group takes issue with that reference
and contends that the development on E rf 6[...] is a separate development
approved on its own terms.

[23] The HOA was not an applicant or party to the application for the land
development rights and approvals on Erf 6[...] . Therefore, the municipal
planning conditions imposed on Erf 6[...] do not bind the HO A. Parch acquired
the garden cottages from White Waves in 2015. Some of the HOA’s trustees are
also members of Parch. The Venter group considers them conflicted and alleges
that those members of the HO A’s board created the impression that Erf 6[...]
was a n extension of Summervale . The Venter group is adamant that th at is a
false narrative. They further allege that those conflicted trustees attempted to
coerce the members of the HOA to agree to amend the constitution with threats.
One such threat appears from a circular that reads as follows:
‘If the vote is against including the garden cottages into the membership of Summervale (erf
6[...]) then the owners of the garden cottages (Parch Properties) has already indicated that it
will enforce its rights through the courts and claim damages from those members that vote
against this inclusion’.

[24] This prompted the 192 nd respondent to lay criminal charges of extortion
against the HOA’s trustees, some of whom are members of Parch and owners in

against the HOA’s trustees, some of whom are members of Parch and owners in
Summervale. The criminal process was still pending when litigation started. The

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Venter group further alleges that it was disingenuous of those conflicted trustees
to welcome and treat Parch as part of the HOA. They regard the failure to
achieve 50% plus one vote at the HO A’s Annual General Meeting of 6 June
2022 as proof that there was no common intention among its members to amend
its constitution to include Parch.

[25] The Venter group alleges that Parch should have prepared a proposal for
its incorporation and that the HOA’s trustees should have tabled the same for
discussion and consideration at a general or special meeting. The Venter group
perceives the conflict of some trustees to be the cause for not approaching the
HOA’s members in a conciliatory manner, which might have produced a
different outcome. The Venter group is of the view that Parch cannot be allowed
ownership of the HO A’s R60 million common property without any
compensation and further, that Parch is not entitled to ownership of the HO A’s
valuable common property merely because its tenants share Summervale’s
facilities and pay a levy for such use. The Venter group does not oppose the
continuation of an arrangement where Parch uses the HOA’s facilities and pay s
for such use.

[26] In addition, Parch is the owner of 43 garden cottages that it rents to
persons irrespective of their age. The Venter group alleges that this policy
compromises the environment for most HOA members who are retired persons .
Parch’s renting scheme has different objectives and characteristics , not shared
by the majority of HOA members. According to this argument , t he lat ter, in
their twilight years, bought into Summervale to benefit from a tranquil
environment, that is incompatible with Parch ’s indiscriminate rental
environment. Nevertheless, the Venter group alleges that:
‘Whether Applicant becomes a member of the First Respondent or not, nothing prevents or
prejudices the Applicant from continuing with its development of Erf 6[...] . The same applies

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in respect of arriving at an agreement (including the registration of servitudes pertaining to
the use of access and private roads (already forming part of the Second Respondent’s
conditions of approval) and the Applicant paying a fee or service levy for the use and
enjoyment of these facilities) for the future use and enjoyment of the First Respondent’s
facilities and infrastructure. No- one, including the Applicant and the occupiers of Erf 6[...]
and the members of First Respondent, will be prejudiced with such an arrangement in place.
Applicant has advanced no reasons in its founding papers why such an agreement or
arrangement, coupled with the Body Corporate of Summervale Gardens (the 291
st
Respondent and once established) governing the affairs of the owners of units on Erf 6443
[Erf 6[...]], would benefit all the parties as adjacent land owners’. (Own emphasis.)

[27] The above is the view expressed by the Venter group. It is apparent that
there is room for the parties to reach a mutually satisfactory and beneficial
agreement. In MEC for Education: KwaZulu-Natal v Pillay 12 the Constitutional
Court held that:
‘It is obviously preferable for these matters to be dealt with by approaching the relevant
authority before the issue arises. It indicates an important degree of respect and a desire to
resolve the matter amicably rather than through confrontation’.

[28] The Venter group complains that it has been disrespected and bullied. In
the prevailing circumstances, including the Venter group’s well motivated
distrust, we conclude that the opposition to amending the constitution was
reasonable and based on the existing objective facts.

[29] In the circumstances, we make the following order:
1. The appeal is dismissed with costs, including the costs of two counsel
where so employed.


12 MEC for Education: Kwazulu -Natal and Others v Pillay [2007] ZACC 21; 2007 (3) BCLR 287 (CC); 2007
(2) SA 106 (CC); (2007) 28 ILJ 133 (CC) para 109.

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_____________
MOKGOHLOA
JUDGE OF APPEAL


______________
BAARTMAN
JUDGE OF APPEAL

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Appearances

For the appellant: S P Rosenberg SC
Instructed by: Boy Louw Inc, Cape Town
Rosendorff Reitz Barry Attorneys,
Bloemfontein

For the 119th & 192nd
respondents: P Van Eeden SC
Instructed by: Marais Muller Hendricks Inc, Cape Town
Symington De Kok Attorneys,
Bloemfontein.