SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: D5453/2022
In the matter between:
ZONED EARTH DEV CO (PTY) LTD FIRST APPLICANT/
FIRST APPELLANT
ADMINCORP 23 CC SECOND APPLICANT/
SECOND APPELLANT
UNIT EIGHT UMHLANGA ROCKS (PTY) LTD THIRD APPLICANT/
THIRD APPELLANT
and
THE BODY CORPORATE OF
6[...] L[...] DRIVE FIRST RESPONDENT
MALCOLM MOODIE SECOND RESPONDENT
PATRICK SCOTT-MARTIN THIRD RESPONDENT
BUDWA ABROSI FOURTH RESPONDENT
COMMUNITY SCHEME OMBUD SERVICE FIFTH RESPONDENT
BOYCE MKHIZE N.O. SIXTH RESPONDENT
MERVYN DORASAMY N.O. SEVENTH RESPONDENT
T. P. QWABE N.O. EIGHTH RESPONDENT
2
ORDER
1. The applicants’ appeal in terms of s 57 of the CSOS Act is dismissed
with no order as to costs.
JUDGMENT
Nicholson AJ
[1] This appeal is brought under s 57 of the Community Scheme s
Ombud Service Act 9 of 2011 (the CSOS Act). The applicants are
challenging the ruling made by the Community Scheme Ombud Service (the
Tribunal), which was delivered by the eighth respondent (the adjudicator) on
29 April 2022. The relevant reference number for this case is CSOS
3934/KZN/2021.
[2] The hearing, which took place on 27 September 2021 concerned the
installation of a Solar Photovoltaic System, also known as solar power and
inverters by the first respondent (the solar panel project). It is relevant that
five years have elapsed since the initial hearing of this dispute.
[3] The applicants in this case were the original applicants before the
Tribunal. I refer to the applicants collectively as “the applicants” where
appropriate, depending on the context.
Order sought before the Tribunal
[4] The orders sought before the tribunal were as follows:
‘A. URGENT ORDER: That the respondents are ordered not to carry out the
installation of the solar panels or any ancillary infrastructure and equipment, pending
the outcome of this application in respect of the further relief sought;
B. URGENT ORDER: That the second, third and fourth respondents are
ordered to furnish the applicants with the following confirmation and documentation,
within three (3) days of the date of the order-
- Copies of minutes of all trustees’ meetings and/or;
3
- Written trustees’ resolution relating to the solar panel project;
- Breakdown of the total cost of the project;
- Copies of all quotations obtained for cost/s of the project;
- Engineer’s specifications;
- Did the trustees obtain any report or presentation on the project, including but
not limited to the lifespan of the assets and equipment, the parts of the
electrical reticulation which would be powered by the system and the cost of
the operation, maintenance and the repair of the system?
- Copies of all reports and/or presentations and proposals to furnish;
- Cost benefit analysis;
- The reason/s why the trustees did not revert to the members to consider the
approval of the project;
- Are the trustees intended funding the project?
C. URGENT ORDER: An order that the applicants are entitled to supplement
their claim detailed in support of this application within seven (7) days of receipt of
information and documentation.
D. The respondents are directed to carry out, within fourteen (14) days, the
removal of any equipment and any improvement or alteration to the common
property carried out consequent to the solar panel project and to restore the
common property to its prior condition.
E. That the second, third and fourth respondents, jointly and severally the one
paying the other to be absolved, pay to the first respondent, within thirty (30) days of
the aggregate of all amounts paid to third parties and all liability incurred by the
second respondent as a result of the solar panel project.
F. That the second, third and fourth respondents, jointly and severally the one
paying the other to be absolved, pay to the applicants, within thirty (30) days, all
legal costs incurred by the applicants in this application.’
[5] It is apposite that in their replying affidavit, the applicants sought to
amend prayer C to read as follows:
‘11. That the second, third and fourth respondents are ordered to furnish the
‘11. That the second, third and fourth respondents are ordered to furnish the
applicants with each of the following information and documentation; alternatively in
the event that a document or record is not in their possession, to furnish an affidavit
explaining that and why the document/record in question is not in their possession,
within three (3) days of the date of the order.’
4
Adjudicator’s ruling
[6] The adjudicator ruled as follows:
‘(a) Prayer A was refused, reasoning that the issue had become moot.
(b) Prayer B was granted, albeit in a limited form. The first respondent was
directed to make available the trustees’ meeting minutes or trustees’ resolution
related to the solar panel project, the breakdown of the total cost of the project has
not been furnished, any report or presentation on the project addressing the costs or
operation, maintenance and repair of the system, information or documentation
available within ten (10) days from delivery of this order.
(c) Prayer C, as amended in the replying affidavit, was refused.
(d) Prayer D was refused.
(e) Prayer E was refused.
(f) Prayer F was refused.’
Adjudicator’s reasons
[7] The reasons for the ruling were as follows:
(a) With respect to prayer A, the adjudicator found that the installation of
the solar panels, inverters, and ancillary equipment had already been
completed by the time of the hearing, rendering the application for
interdictory relief moot. Furthermore, the adjudicator noted that despite the
application been made as an urgent, the Tribunal did not deal with the matter
as urgent in terms of the Tribunal’s practice directive; and despite requests
for clarification, the Tribunal did not provide any explanation.
(b) Regarding prayer C, the adjudicator determined that the relief sought
by the applicants did not fall within the scope of s 39 of the CSOS Act and, as
such, did not comply with s 38(3) (a) of the Act. Consequently, he concluded
that he lacked the authority to grant such relief. To support this position, the
5
adjudicator cited Trustees, Avenues Body Corporate v Shmaryahu and
Another,1 where the court stated:
‘…The character of the various types of substantive relief that an adjudicator is
empowered to grant in terms of the Act appears from, the provisions of s 39.’
(c) Regarding prayer D, the adjudicator determined that the request to
restore the common property to its previous condition could not be granted;
because the removal of any equipment, improvement, or alteration made as
part of the solar panel project because “events had overtaken each other”.
(d) Prayer E was refused because, the adjudicator reasoned, on the face
of it, prayer E could not be considered, unless prayer D had been granted.
(e) Prayer F was refused because both sets of parties had attorneys with
the applicants making the election to utilise the services of an attorney.
Applicants case
[8] The applicants argue that the adjudicator made an error by failing to
acknowledge the adjudication request and not treating it with the urgency
required by the practice directive prior to the installation of the solar panel
project. Furthermore, they contend that the adjudicator wrongly dismissed
prayer A.
[9] I pause to mention here that, although the applicants argue the
adjudicator was mistaken in not granting prayer A, as will become clear later,
they are not actually requesting any remedy on this issue. Furthermore, the
issue does not present an active or current dispute .2 Accordingly, there is no
reason to consider this issue any further.
[10] In relation to prayers B and C, the applicants assert that the
adjudicator erred by misinterpreting or misapplying the provisions of the
CSOS Act and the relevant practice directives for dispute resolution,
specifically those issued in 2019 and amended on 23 June 2020. They claim
1 Trustees. Avenues Body Corporate v Shmaryahu and Another 2018 (4) SA 566 (WCC)
(Shmaryahu) para 17. See also Kingshaven Homeowners' Association v Botha and Others
(Shmaryahu) para 17. See also Kingshaven Homeowners' Association v Botha and Others
2023 (4) SA 187 (WCC) (Kingshaven) para 34.
2 SA Metal Group (Pty) Ltd v The International Trade Administration Commission [2017]
ZASCA 14 para 20.
6
these directives should have been read in conjunction with ss 50 3 and 514 of
the CSOS Act. Alternatively, the applicants argue that the adjudicator failed
to appreciate the obligation to investigate the application and revert to them
for adjudication, and therefore, should have exercised his powers under s 51
to call for documentation. Had documentation been called for, parties could
have submitted supplementary written submissions, and full relief under
prayers B and C should have been granted.
[11] The applicants maintain that order 50.2 5 issued by the adjudicator
has not been fully complied with, as they have not received all the requested
documents. With respect to the costs of the solar panel project, only four
invoices submitted and paid by the first respondent have been received.
[12] Regarding prayer D, the applicants claim that the adjudicator erred
by failing to determine that the solar panel project and improvements to the
3 Section 50 of the CSOS Act provides: ‘Investigation by adjudicator
‘The adjudicator must investigate an application to decide whether it would be appropriate to
make an order, and in this process the adjudicator-
(a) must observe the principles of due process of law; and
(b) must act quickly, and with as little formality and technicality as is consistent with a proper
consideration of the application; and
(c) must consider the relevance of all evidence, but is not obliged to apply the exclusionary
rules of evidence as they are applied in civil courts.’
4 Section 51 of the CSOS Act provides: ‘Investigative powers of adjudicator
‘(1) When considering the application, the adjudicator may-
(a) require the applicant, managing agent or relevant person-
(i) to give to the adjudicator further information or documentation;
(ii) to give information in the form of an affidavit or statement; or
(iii) subject to reasonable notice being given of the time and place, to come to the
office of the adjudicator for an interview;
office of the adjudicator for an interview;
(b) invite persons, whom the adjudicator considers able to assist in the resolution of issues
raised in the application, to make written submissions to the adjudicator within a specified
time; and
(c) enter and inspect-
(i) an association asset, record or other document;
(ii) any private area; and
(iii) any common area, including a common area subject to an exclusive use
arrangement.
(2) The adjudicator must give reasonable notice to the executive committee or occupier of
any private area or common area to be entered in terms of subsection (1) (c).
(3) The association or any other person who is in possession of an association's records
must, if required by an adjudicator and without payment of a fee-
(a) allow the adjudicator access to the records within 24 hours after being notified of the
adjudicator’s requirement; and
(b) provide the adjudicator with copies of the records.’
5 Prayer B at the Tribunal
7
first respondent’s common property were not properly authorised and thus
constituted unlawful improvements. They note the following:
(a) It was undisputed that the solar panel project constituted an
improvement to the common property.
(b) The first to fourth respondents argued that the improvement was
“reasonably necessary” under management rule 29(2).
(c) The adjudicator correctly found no evidence of compliance with rule
29(2) by these respondents.
(d) The adjudicator also correctly held that the necessary process under
rule 29(2) had not been followed.
[13] The applicants further contend that the adjudicator erred in
determining that the removal of the equipment would not be in the interests of
the members. They argue that the adjudicator failed to recognise his lack of
jurisdiction under the CSOS Act to condone non -compliance with
management rule 29(2). Moreover, they assert that the adjudicator is not
authorised or empowered to resolve disputes based on the “interest of
members”.
[14] With respect to prayer E, the applicants argue that the adjudicator
erred by not finding that the implementation of the solar panel project
resulted in costs incurred by the first to fourth respondents, who either acted
without authority or exceeded their powers. This is significant in light of the
adjudicator’s correct determination that management rule 29(2) was not
complied with and the failure to properly apply ss 8(1), 8(2), and 8(3) of the
Sectional Titles Schemes Management Act 8 of 2011 (STSMA). Add itionally,
the applicants point out:
(a) The adjudicator did not assess whether the actions of the second,
third, and fourth respondents constituted a breach of their fiduciary duties to
the first respondent.
(b) There was no determination as to whether breaches of fiduciary duty
resulted in financial loss to the first respondent.
8
(c) The findings imply that further conduct by the second, third, and
fourth respondents would be necessary before they could be held liable for
such losses.
(d) The adjudicator considered whether the improvement benefited
members of the first respondent and relied on this factor when evaluating
possible breaches of fiduciary duty.
[15] For prayer F, the applicants submit that the adjudicator erred in
several respects:
(a) By misinterpreting and/or misapplying ss 39 6 and/or 427 of the CSOS
Act, specifically by failing to state explicitly that legal representation was
unwarranted under the circumstances.
(b) By declining to award costs in favour of the applicants, whether
against the second, third, and fourth respondents or the first respondent,
despite having a discretion under the Act to do so.
[16] They further argue that neither the ombud nor the adjudicator have
jurisdiction to direct that the costs of any remedial work to restore common
property should be paid from a special resolution/levy or from reserves.
Relief sought by the applicants in this court
[17] In the notice of motion, the applicants seek the setting aside of the
adjudicator’s order and to be replaced as follows:
‘50. …
6 Section 39 of the CSOS Act provides: ‘Prayers for relief
An application made in terms of section 38 must include one or more of the following orders:
(1) …’
7 Section 42 of the CSOS Act provides: ‘Rejection of applications
An ombud must reject an application by written notice to the applicant if-
(a) the relief sought is not within the jurisdiction of the Service;
(b) the applicant fails to comply with a requirement of the ombud in terms of section 40;
(c) within 14 days after delivery of a notice contemplated in section 44, the ombud does not
receive written confirmation from the applicant that the applicant wishes to proceed with the
application;
(d) the ombud is satisfied that the dispute should be dealt with in a court of law or other
tribunal of competent jurisdiction; or
tribunal of competent jurisdiction; or
(e) the application does not, in the opinion of the ombud, qualify for the discount or waiver of
adjudication fees applied for.’
9
50.1 The relief under prayer B is granted and second, third and fourth
respondents are ordered to furnish the applicants with the following information and
documentation, within 3 days of the date of this order:
50.1.1 Copies of minutes of all trustees’ meetings and written trustees’ resolutions
relating to the solar panel project;
50.1.2 Breakdown of total cost of the project;
50.1.3 Copies of all quotations obtained for cost/s of the project;
50.1.4 engineer’s specifications;
50.1.5 Copies of all reports, all presentations, all proposals to the trustees on the
solar panel project including, but not limited to the lifespan of the assets and
equipment, the part of the electrical reticulation which would be powered by the
system and the costs of operation, maintenance and repairs of the system;
50.1.6 Cost/benefit analysis;
50.1.7 The reason why the trustees did not revert to the members t o consider the
approval of the project; and
50.1.8 How the trustees intended to fund the project.
50.2 The relief under paragraph C is granted and the applicants are entitled to
supplement their claim details in support of the application within seven (7) days of
receipt of the information and documentation.
50.3 The relief in prayer D is granted and the respondents are directed to carry
out, within fourteen (14) days, the removal of any equipment and improvements or
alteration to the common property carried out consequent to the solar panel project
and restore the common property to its prior condition (before the installation of the
solar panel project).
50.4 That the first respondent body corporate is ordered to pay the applicants’
costs.’
[18] In addition, the applicants seek an order that the first respondent
bear the costs of the application and a declaration that the applicants are fully
absolved from any liability, whether direct or indirect, with respect to payment
or contribution towards legal expenses before the Tribunal, charges arising
or contribution towards legal expenses before the Tribunal, charges arising
from the removal of the solar panel system, and any legal costs associated
with this appeal. Additionally, they seek an interdict preventing the first
respondent from settling such costs or charges from the reserve fund.
10
Respondents case
[19] The respondents argue that the applicants could have called a SGM
to request the n ecessary documentation from the first respondent, regarding
the solar panel and inverter installation. Such a meeting would have allowed
the first respondent to ratify the installation or vote on its removal.
[20] They note that a special general meeting was not held because 21
out of 24 owners in the scheme supported the installation. Instead, the
applicants seek broad and intrusive relief under s 39 of the CSOS Act, but
the respondents propose that a vote on whether to remove or ratify the
installation would be the most cost -effective and practical solution to address
non-compliance with Management rule 29(2).
[21] The respondents contend that the orders requested, particularly
prayers C and D, exceed the court’s authority. They are of the view the
applicants are seeking to replace the adjudicator’s’ order with that of th is
court, and therefore, the matter should be stayed pending the outcome of an
SGM.
[22] Additionally, they argue that prayer B is not a point of law and should
be submitted to the magistrate’s court clerk for compliance and maintain that
all required information under prayers 50.1 has been disclosed that are in its
possession.
[23] The respondents also assert that the applicants have not identified
which provision of s 39 of the CSOS Act applies to prayer C, failing to
substantiate a point of law.
[24] Regarding prayer D, the respondents state that the adjudicator
correctly determined that the requested relief was moot due to subsequent
events. Even if compliance with management rule 29(2) had been found,
there was no authority to grant the relief sought. Had an order under prayer D
11
been made in terms of s 39(4) 8 of the CSOS Act, invalidating the installation,
the matter would be academic as the installation was already complete.
Section 39(6) 9 does not apply, as it is only relevant where improvements to
8 Section 39(4) of the CSOS Act reads: ‘In respect of meetings-
(a) an order requiring the association to call a general meeting of its members to deal with
specified business;
(b) an order declaring that a purported meeting of the executive committee, or a purported
general meeting of the association, was not validly convened;
(c) an order declaring that a resolution purportedly passed at a meeting of the executive
committee, or at a general meeting of the association-
(i) was void; or
(ii) is invalid;
(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) an order declaring that a particular resolution passed at a meeting is void on the ground
that it unreasonably interferes with the rights of an individual owner or occupier or the rights
of a group of owners or occupiers.
(5) In respect of management services-
(a) an order requiring a managing agent to comply with the terms of a person's contract of
appointment and any applicable code of conduct or authorisation; or
(b) an order declaring that the association does or does not have the right to terminate the
appointment of a managing agent, and that the appointment is or is not terminated.’
9 Section 39(6) of the CSOS Act reads: ‘In respect of works pertaining to private areas and
common areas-
(a) an order requiring the association to have repairs and maintenance carried out;
(b) an order requiring the relevant person-
(i) to carry out specified repairs, or have specified repairs made; or
(i) to carry out specified repairs, or have specified repairs made; or
(ii) to pay the applicant an amount fixed by the adjudicator as reimbursement for
repairs carried out or to be carried out in respect of the property by the applicant;
(c) an order requiring the association-
(i) to carry out, within a specified time, specified works to or on the common areas
for the use, convenience or safety of owners or occupiers; or
(ii) not to carry out specified works;
(d) an order declaring that the association's decision to reject a proposal to make
improvements on or alterations to common areas is unreasonable, and requiring the
association-
(i) to agree to the proposal; or
(ii) to ratify the proposal on specified terms;
(e) an order requiring the association-
(i) to acquire, within a specified time, specified property for the use, convenience or
safety of owners or occupiers;
(ii) not to acquire specified property; or
(iii) to dispose of specified property, within a specified time;
(f) an order declaring that an owner or occupier reasonably requires exclusive use rights
over a certain part of a common area, that the association has unreasonably refused to grant
such rights and requiring the association to give exclusive use rights to the owner or
occupier, on terms that may require a payment or periodic payments to the association, over
a specified part of a common area; or
(g) an order obliging an owner or occupier to accept obligations in respect of a defined part
of a common area..’
12
common property are found to be inconvenient or unsafe, which was not the
case here.
[25] With respect to s 8(2) of the STSMA, the respondents assert that the
trustees acted honestly and in good faith towards the first respondent, and
the adjudicator correctly asserts that malice or dishonesty is required to
establish a breach of fiduciary duty, which he could not find.
Section 57 appeal
[26] Section 57(1) of the CSOS Act reads as follows:
‘An applicant, the association or any affected person who is dissatisfied by a n
adjudicator's order, may appeal to the High Court, but only on a question of law.’
A plain reading of the section indicates that an appeal under s 57 is limited to
questions of law rather than questions of fact.
[27] In Shmaryahu, the court held: 10
‘[25] … An appeal in terms of s 57 is not a “civil appeal” within the meaning of
the Superior Courts Act 10 of 2013. What may be sought in terms of s 57 is an
order from this court setting aside a decision by a statutory functionary on the
narrow ground that it was founded on an error of law. The relief available in terms of
s 57 is closely analogous to that which might be sought on judicial review. The
appeal is accordingly one that is most comfortably niched within the third category of
appeals identified in Tikly and Others v Johannes NO and Others 1963 (2) SA 588
(T) at 590-591.
10 Also see Tikly and Others v Johannes NO and Others 1963 (2) SA 588 (T) at 590F-591A
where the court stated : ‘The word “appeal” can have different connotations. In so far as is
relevant to these proceedings it may mean:
(i) an appeal in the wide sense, that is, a complete re -hearing of, and fresh determination on
the merits of the matter with or without additional evidence or information (Golden Arrow Bus
Services v Central Road Transportation Board , 1948 (3) SA 918 (AD) at p. 924; S.A.
Broadcasting Corporation v Transvaal Townships Board and Others , 1953 (4) SA 169 (T) at
Broadcasting Corporation v Transvaal Townships Board and Others , 1953 (4) SA 169 (T) at
pp. 175 - H 6; Goldfields Investment Ltd v Johannesburg City Council, 1938 T.P.D. 551 at p.
554);
(ii) an appeal in the ordinary strict sense, that is, a re -hearing on the merits but limited to the
evidence or information on which the decision under appeal was given, and in which the only
determination is whether that decision was right or wrong (e.g. Commercial Staffs (Cape) v
Minister of Labour and Another, 1946 CPD 632 at pp. 638-641);
(iii) a review, that is, a limited re -hearing with or without additional evidence or information to
determine, not whether the decision under appeal was correct or not, but whether the
arbiters had exercised their powers and discretion honestly and properly (e.g. R v Keeves ,
1926 AD 410 at pp. 416-7; Shenker v The Master, 1936 AD 136 at pp. 146-7).
13
…
[27] As mentioned, the applicants stated four grounds for their appeal. In view of
the restricted basis for appeal permitted in terms of s 57 of the Act it would have
been preferable if they had stated the points of law in respect of which they
contended that the adjudicator had erred...’ (Footnotes omitted.) (My emphasis.)
[28] In Kingshaven, the court held:
‘[8] Section 57(1) of the CSOS Act provides that an aggrieved party may
appeal against an adjudicator’s decision, but only on “a question of law”….
[9] In Trustees, Avenues Body Corporate v Shmaryahu and Another 2018 (4)
SA 566 (WCC), in the course of giving guidance as to the procedure by which such
appeals should be brought, I acknowledged that it is well recognised that the word
“appeal” is often used indiscriminately to refer to any one of a number of what are in
fact quite distinguishable procedures, and that therefore, when treating of a statutory
appeal, one has to look at the context of the provision in question to ascertain the
juridical character of the remedy afforded thereby. I opined that the remedy available
in terms of s 57 of the CSOS Act is closely analogous to that which might be sought
on judicial review, and concluded that such an appeal was accordingly one that wa s
“most comfortably” niched within the third category of appeals identified in Tikly and
Others v Johannes NO and Others 1963 (2) SA 588 (T), which was not the same as
suggesting an exact fit.
[10] A subsequent judgment of the KwaZulu -Natal Division concurred in that
categorisation; see Durdoc Centre Body Corporate v Singh 2019 (6) SA 45 (KZP)
para 15 (per Steyn J, Madondo DJP concurring)…
[11] The third category of appeal in Tikly was defined by Trollip J in these terms:
“a review, that is a limited rehearing with or without additional evidence or
information to determine, not whether the decision under appeal was correct or not,
but whether the arbiters had exercised their powers and discretion honestly and
but whether the arbiters had exercised their powers and discretion honestly and
properly”. In my view, the “proper” exercise of administrative powers includes
whether they have been exercised within the ambit of the arbiters ’ authority or in
accordance with the applicable law….
…
[13] …. In my respectful opinion, the proviso attached to the characterisation
actually serves to highlight why such appeals are not, in essential respects, of the
second type. This is because, being limited to questions of law, they do not involve a
14
rehearing of and fresh determination of the merits (as distinct from just the result),
and they would not allow for the introduction of additional evidence or factual
information.
…
[15] On reflection, I think there is little profit in the categorisation debate, and it
was perhaps unfortunate that I sparked it, with reference to Tikly, when I wrote the
judgment in Shmaryahu. I do not read Trollip J's judgment in Tikly as having been
intended by the learned judge to provide an exhaustive taxonomy, and it does not
deal at all with the appropriate procedures by which the different types of appeal
should be brought. Where not expressly provided for by the enabling statute, the
appropriate form for the bringing to court of a statutory appeal is a matter to be
regulated by the courts with an eye to practicality.
…
[19] In Farmer v Cotton's Trustee the legislation provided for the form in which
the relevant appeals only on grounds of law were to be brought; viz on a stated
case. It is evident from the speeches given by the members of the Appellate
Committee that the framing of the stated case in that matter, which no doubt would
have been in comparable form to a notice of appeal succinctly stating the grounds
for it, yet also still directed at highlighting the relevant factual underpinnings, could
give rise to proble ms. Thus, Earl Loreburn remarked, at p 600 of the Tax Case
Reports, “I desire to say that when cases are stated for the opinion of a Court of Law
it is very much to be desired that the point of law should be clearly stated together
with the decision upon it arrived at by the inferior Court. Otherwise, it may prove
difficult for a Court of Law to distinguish between conclusions of law and conclusions
of fact. ” The procedure laid down in Stenersen does not, in terms, provide for the
distillation of the “question of law”; as I understand it, it contemplates rather that the
appellant set out the grounds upon which it contends that the adjudicator's decision
appellant set out the grounds upon which it contends that the adjudicator's decision
erred in law.
[20] Lord Parker's remarks in Farmer v Cotton's Trustee were uttered in the
context of an assumption that the initial arbiter had made all the pertinent findings of
fact necessary for a consideration of the question of law. It is very conceivable,
however, that a situation might arise where the initial arbiter has not made a finding
on relevant facts that had been established on the evidence and subsequently
became pertinent to the question of law put in issue on appeal. It is by no means
uncommon for a tr ibunal to arrive at a decision without finding it necessary to make
15
findings on all the factual evidence that has been adduced before it. It might be
necessary in such matters, if the evidence on which findings have not been made is
alleged to be germane to the question of law relied on in the appeal, for the
appellate tribunal itself to consider and make a finding on such facts for the purpose
of its task. The alternative would be to remit the issue of fact to the initial arbiter for it
to make the finding of fact considered necessary to inform the determination of the
question of law. The identification of such matters of fact for the purposes of an
appeal of the sort provided in terms of s 57, and the motivation of their relevance for
the determination of the question of law contended for, would, in my view, be better
done through an exchange of affidavits than in a notice of appeal stating shortly the
grounds upon which it is brought.’
(Footnotes omitted.)
[29] After reviewing the relevant authorities, including those drafted by the
full court of this division, I conclude that an appeal under s 57 of the CSOS
Act should be limited to questions of law, with two notable exceptions: first,
when factual findings are necessary to contextualise the legal issue; and
second, when a factual determination results from an incorrect interpretation
of the law. Furthermore, an appeal under s 57 is not intended as a rehearing
or a thorough re -examination of the case . Accordingly, the inclusion of new
evidence or information underlying the decision being appealed may be
considered only in limited circumstances, considering that the Act does not
regulate the procedure of the s 57 appeals and given this court ’s inherent
jurisdiction.11
Interlocutory applications
[30] In addition to the appeal under consideration, there are two
interlocutory applications: one made by the applicants concerning non -
compliance with this division’s established practice regarding affidavit length,
and another filed by the respondents seeking permission to submit an
and another filed by the respondents seeking permission to submit an
additional affidavit.
11 S v Molaudzi [2015] ZACC 20; 2015 (2) SACR 341 (CC) para 33.
16
[31] The interlocutory application by the applicants is unopposed while
the interlocutory affidavit by the respondents is opposed.
[32] In Ellis v Trustees, Palm Grove Body Corporate and Others,12 the full
court of this division held:
‘[10] In this division, although not concerned with the procedure to be followed in
lodging the s 57 appeal, the court did not raise any difficulties in adopting the
procedure followed and prescribed in Shmaryahu. We do not see any reason to
depart from this procedure. Binns-Ward J has demonstrated in his two judgments
why it is beneficial to adopt the motion procedure. I do not intend to repeat his
reasons but just to add that that procedure would enhance the CSOS Act ’s
objective, namely, to have such matters adjudicated and dealt with expeditiously
and cost-effectively. The facts contained in those affidavits will assist in bringing the
point of law to the fore as it has been acknowledged that at times it is difficult to
decide a point of law in isolation from the facts.
[11] In order to curtail costs, there has to be a limit on the length of the affidavits
to be filed. In my view, the applicant to such an appeal will have to file a notice of
motion to be served on the respondents so that they may respond if they wish to
within the time limits provided for in Uniform Rule 6(5). The affidavit accompanying
such a notice should not be longer than ten (10) pages, so as to curb the costs, and
it must succinctly state the grounds upon which it is averred that the adjudicator
erred on a point of law, together with a brief background about the facts leading to
such a dispute. Should the respondent wish to respond, their affidavit(s) also should
not be longer than (ten) 10 pages, with the applicant's replying affidavit limited to six
(6) pages. Once the affidavits have been filed, the appeal will follow the practice
directives provided for opposed motions, including the filing of the heads of
directives provided for opposed motions, including the filing of the heads of
argument, should same be opposed. In this way, the appeal will serve before a
single judge as an unopposed or opposed motion. A practice directive to this effect
will ensure that the matter does not drag out unnecessarily.’ (Footnotes omitted.)
[33] The applicants’ founding affidavit spans 13 pages, exceeding the
prescribed ten -page limit stipulated in practice directive 36 of this division.
However, as this is insubstantial and the non-compliance does not prejudice
12 Ellis v Trustees, Palm Grove Body Corporate and Others 2023 (4) SA 608 (KZP).
17
the respondents, it is appropriate, in the interest s of justice, to condone the
non-compliance.
[34] With respect to the respondents’ application, on 8 September 2023,
the first respondent convened a SGM to deliberate, among other matters, the
issue of continued support for the solar project. The supplementary affidavit
serves to formally present, under oath, the minutes from this meeting as
evidence before the court, asserting that the applicants acquiesced by voting
in favour of maintaining the solar installation. As a result, the respondents
contend that the appeal is now moot.
[35] The applicants contest the application on several grounds, including
procedural objections. Notably, they dispute the claim that they voted in
favour of the solar installation and reject the contention that the appeal is now
academic.
[36] This matter has extended over five years. The respondents provided
the applicants with adequate time to review the interlocutory application, and
most of the issues raised are not disputed and/or have been addressed in the
heads of argument submitted by both parties. Accordingly, I will permit the
respondent’s supplementary affidavit.
The appeal
[37] It has already been determined hereinabove that the applicant does
not seek relief regarding prayer A, and which in any case is now moot.
[38] The tribunal partially granted prayer B and dismissed prayer C. The
applicants assert that s 51 of the CSOS Act requires the adjudicator to
investigate and request further documents as specified in prayer B. However,
s 51 states that “When considering the application, the adjudicator may”,
indicating that such action is discretionary rather than mandatory.
Additionally, the adjudicator did not order that all documents under prayer B
be provided, determining that the documents not produced were outside the
scope of Management rules 26 and 27. My reading of these rules is that the
18
adjudicator’s interpretation aligns correctly with the rules. There is no
obligation for the adjudicator to undertake an investigation, and the refused
documents are not required to be maintained according to rules 26 and 27.
Accordingly, this is not a question of law. In any event, prayer B did not
request the adjudicator to do an investigation.
[39] The adjudicator dismissed prayer C,13 clarifying that under s 38 of the
CSOS Act, only matters arising under s 39 of the Act can be ordered by an
adjudicator. To support this interpretation, the adjudicator referenced
Shmaryahu. After reviewing both the Shmaryahu judgment and s 38, I find
myself in agreement with this view. Therefore, prayer C is dismissed.
[40] The adjudicator dismissed prayer D, explaining that even though the
application was marked as urgent, CSOS did not handle it with urgency. As a
result, by the time the hearing took place, the solar panels and inverters had
already been installed, making this relief moot. Furthermore, the adjudicator
noted that, despite some lack of clarity in the resolution, there appears to be
authorization for installing the solar units. In the circumstances, he asserts he
could not order their removal, even though Management Rule 29 was not
followed.
[41] The relevant Management rule 29 reads:
‘Improvements to common property
29(1) The body corporate may on the authority of a unanimous resolution make
alterations or improvements to the common property that is not reasonably
necessary.
(2) The body corporate may propose to make alterations or improvements to
the common property that are reasonably necessary; provided that no such proposal
may be implemented until all members are given at least 30 days written notice with
details of —
(a) the estimated costs associated with the proposed alterations or improvements;
13 See paragraph 35 of the a djudicator’s ruling: Relief C: ‘An order that the Applicants are
13 See paragraph 35 of the a djudicator’s ruling: Relief C: ‘An order that the Applicants are
entitled to supplement their claim details in support of this application within 7 days of receipt
of the information and documentation.’
19
(b) details of how the body corporate intends to meet the costs, including details of
any special contributions or loans by the body corporate that will be required for this
purpose; and
(c) a motivation for the proposal including drawings of the proposed alterations or
improvements showing their effect and a motivation of the need for them; and if
during this notice period any member in writing to the body corporate requests a
general meeting to discuss the proposal, the proposal must not be implemented
unless it is approved, with or without amendment, by a special resolution adopted at
a general meeting.
(3) …’
[42] It is common cause that Management rule 29(2) was not complied
with, because no notice regarding the solar panel project was issued. This
omission deprived the relevant parties of their right to object and to have the
matter addressed at a n AGM by special resolution , and despite their
objections, the project was implemented.
[43] I have perused the ST SMA and Regulations but unable to find any
authority therein that states that in the event of these rules not having been
observed or complied with, the structures or improvements must be removed.
Accordingly, whether or not to grant the order, would be at the discretion of
the adjudicator and not a question of law. [Underlining for emphasis]
[44] Regarding prayer E, the adjudicator dismissed the prayer because
he reasoned that s 8(4) of the STSMA indemnified the trustees from all costs,
losses and expenses arising out of their official acts provided that it was not a
breach of their fiduciary duties.
[45] Section 8 of the STSMA reads:
Fiduciary position of trustees
‘8(1) Each trustee of a body corporate must stand in a fiduciary relationship to
the body corporate.
(2) Without derogating from the generality of the expression “fiduciary
relationship”, the provision of subsection (1) implies that a trustee-
20
(a) must in relation to the body corporate act honestly and in good faith, and in
Particular-
(i) exercise his or her powers in terms of this Act in the interest and for the benefit of
the body corporate; and
(ii) not act without or exceed those powers; and
(b) must avoid any material conflict between his or her own interests and those of
the body corporate, and in particular-
(i) not receive any personal economic benefit, direct or indirect, from the body
corporate or from any other person; and
(ii) notify every other trustee of the nature and extent of any direct or indirect
material interest which he or she may have in any contract of the body corporate, as
soon as such trustee becomes aware of such interest.
(3) A trustee of a body corporate who acts in breach of his or her fiduciary
relationship, is liable to the body corporate for—
(a) any loss suffered as a result thereof by the body corporate; or
(b) any economic benefit received by the trustee by reason thereof.
(4) Except as regards the duty referred to in subsection (2)(a)(i), any particular
conduct of a trustee does not constitute a breach of a duty arising from his or her
fiduciary relationship to the body corporate if such conduct was preceded or
followed by the written approval of all the members of the body corporate where
such members were or are cognisant of all the material facts.’
[46] The fiduciary relationship of the trustees with a b ody corporate
require that they act honestly and in good faith, in the interests and for the
benefit of the body corporate , refrain from exceeding their powers, avoid
conflicts of interest, and disclose any such conflicts to co -trustees. On my
interpretation of s 8(2) of the STSMA , a breach of the fiduciary relationship
necessitates a breach of all these factors mentioned in the section, and intent
is required rather than negligence. In the circumstances, the applicants must
demonstrate that the trustees intentionally contravened their fiduciary
demonstrate that the trustees intentionally contravened their fiduciary
obligations; if this is established, the trustees would be liable for any resulting
losses.
[47] In this case, it appears that the trustees believed that the resolution
that had previously been passed satisfied all requirements of the STSMA and
21
thus acted in good faith. Furthermore, the solar panel project was undertaken
for the benefit of the first respondent , with no evidence indicating that any
trustee derived improper personal gain or that a conflict of interest existed.
Consequently, the adjudicator did not err in law and correctly dismissed
prayer F.
[48] In reference to the applicants requesting reimbursement for the
tribunal hearing costs, neither the CSOS Act nor the STSMA stipulates that
the unsuccessful party must pay the costs of the prevailing party. It is well
established that cost awards are discretionary; therefore, this matter does not
constitute a question of law.
Costs
[49] While it is customary for costs to follow the result, it is well
established that the court has discretion in such matters. In this case, the
applicants brought the application due to being deprived of certain rights ,
specifically, their right to bring an urgent matter before the tribunal and their
right to object to the solar panel project in accordance with the ST SMA and
its Regulations. Notwithstanding their lack of success, for the reasons stated,
I do not believe it would serve the interests of justice to burden them with the
costs of the first respondent , to which they have already contributed
indirectly.
Order
[50] In the result, I make the following order:
1. The applicants’ appeal in terms of s 57 of the CSOS Act is dismissed
with no order as to costs.
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______________________________________________
NICHOLSON AJ
23
Case information
Date of hearing: 11 December 2025
Handed down: 13 February 2025
Counsel for the applicant/
appellant: Mr M. E. Stewart
Instructed by: Northmore Montague Attorneys
Suite 4, The Colony
50 Old Main Road
Hillcrest
KwaZulu-Natal
Ref: K NORTHMORE/ZMD-001
Counsel for the first to
fourth respondents: Mr D J. M. Randles
Instructed by: Lott Attorneys
Office 8, Dias Block, Fairway
3 Abrey Road
Kloof
Ref: EA/tk/LBC-01