IN THE HIGH COURT OF SOUTH AFRICA
Gaute ng Divisio n , Pretor ia
(1) Reportabl e: NO
(2) Of Interest to Other Judges: NO
(3) Revised: YES
27 January 2026
Date Signature
In the matte r betwe en:
JENNIFER LYNNE KOSTER
and
CENTURION HOMEOWNERS ASSOCIATION (NPC)
THE CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
VERSATEX TRADING 80 (PTY) LTD
Case No.: 2024-091277
Applican t
First Respondent
Seco nd Respo nden t
Third Respondent
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JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
NEL, AJ:
INTRODUCTION
[ 1] This is an application for leave to appeal against the judgment and order
of this Court delivered on 11 November 2025. In that judgment, I
dismissed the main review application as moot and made no order as
to costs.
[2] The application is brought in terms of Section 17(1) of the Superior
Courts Act 10 of 2013. The test is trite: leave may only be granted if the
Court is of the opinion that the appeal 'would' have a reasonable
prospect of success, or if there is some other compelling reason why the
appeal should be heard.
[3] The grounds of appeal are set out in the Applicant's Notice of
Application for Leave to Appeal. In essence, the Applicant contends that
this Court erred in finding that the principle in Oudekraal did not apply
to the First Respondent, and misdirected itself by relying on Rule 34 to
deprive the Applicant of costs.
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THE MERITS AND MOOTNESS
[4] The Applicant persists with the argument that the First Respondent, a
Homeowners Association (HOA), exercises public power when approving
building plans and that, consequently, the principle in Oudekraal
Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) applies. The
submission is that the initial refusals of the plans remain valid
administrative acts until set aside.
[5] This argument bears no reasonable prospect of success. In Mount
Edgecombe Country Club Estate Management Association II RF NPC v
Singh2019 (4) SA 471 (SCA), the Supreme Court of Appeal clarified that
the relationship between an HOA and its members is private and
contractual, founded on the Memorandum of Incorporation. It has no
public law content, and does not involve the exercise of public power or
the performance of a public function.
[6] Counsel for the Applicant submitted that Oudekraal applies equally to
public and private powers. There is no authority for this proposition.
The principle is a mechanism of public law designed to preserve the
certainty of administrative acts. It does not apply to a contractual
breach between private parties.
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[7] Furthermore, even if Oudekraal were applicable, the Supreme Court of
Appeal held in that matter that the principle applies where the invalid
act is a "necessary precondition for the validity of consequent acts" (at
para [311). In this matter, the refusals have been made ineffective. They
are not the foundation for any subsequent act. The plans have since
been approved and an occupation certificate issued by the Second
Respondent municipality. These acts (by the municipality) do not
depend on the invalidity of the First Respondent's refusals for their legal
force. There are no flowing consequences that require the setting aside
of the initial decision. The review is undeniably moot.
COSTS AND THE APPLICABILITY OF RULE 34
[8] The gravamen of the Applicant's complaint is the costs order. The
Applicant argues that Rule 34 does not apply to review proceedings and
that an administrator cannot tender an unlawful decision. Relying on
Van Staden v Pro-Wiz Group (Pty) Ltd 2019 (4) SA 532 (SCA), the
Applicant contends that this Court committed an error of law which
prevented the proper exercise of discretion.
[9] This argument fails to distinguish between the reasoning of a judgment
and the substantive order. As held in Western Johannesburg Rent Board
v Ursula Mansions 1948 (3) SA 353 (A), an appeal lies against the order,
not the reasons.
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[ 1 0] Even if another court were to find that Rule 34 is technically
inapplicable to review proceedings, the result-the deprivation of
costs-remains unassailable on common law grounds. If the First
Respondent's tender of 10 December 2024 fell outside Rule 34, it
constituted a common law "without prejudicff' offer of compromise.
Whether analysed under Rule 34 or the common law, it was protected
from disclosure, and the Applicant's divulgence thereof was a breach of
the privilege attaching to settlement negotiations.
[ 11] The Respondent's counsel correctly referred this Court to Hotz & Others
v University of Cape Town 2018 (1) SA 369 (CC), where the
Constitutional Court affirmed that an appeal court will not lightly
interfere with the exercise of a lower court's discretion in the true sense,
such as regarding costs.
[ 12] My judgment (specifically at Paragraph 40) was based on the Applicant's
conduct-specifically, the opportunism of appropriating the benefit of
the tender while rejecting the condition as to costs. This was a judicial
exercise of discretion based on the facts. An appeal court has no power
to substitute its own discretion simply because it might have come to a
different conclusion (Knox D'Arcy Ltd and Others v Jamieson and Others
1996 (4) SA 348 (A) at 360E-F).
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CONCLUSION
[13] An appeal on the merits would have no practical effect as envisaged in
Section 16(2)(a)(i) of the Superior Courts Act. Regarding costs, the order
is sustainable on grounds independent of the Rule 34 finding. There are
no reasonable prospects of success, nor are there compelling reasons
to grant leave.
[14] In the result , I make the following order:
1. The application for leave to appeal is dismissed.
2. The Applicant is ordered to pay the costs of the application on
scale B.
E.J.J.NEL
Acting Judge of the High Court
Gauteng Division, Pretoria
APPEARANCES:
For the Applicant:
For the First Respondent:
Date of Hearing:
Date of Judgment:
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Adv D. van den Bogert SC (Instructed by: LA
Stuart Inc.)
Adv R. F. de Villiers (Instructed by: Prinsloo
van der Linde Attorneys)
19 January 2026
27 January 2026