IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A257/2024
REPORT ABLE: ~ NO (1)
(2)
(3)
OF INTEREST TO OTHER JUDGES: ~ $/NO
REVISED: YES/I\~
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In the matter betwee n: -
KIAN ASHOORI
BAYAN ASHOORI
AND
CORNWALL HILL HOMEOWNERS ASSOCIATIONS
(NPC)
JUDGMENT
FIRST APPELANT
SECOND APPELANT
RESPONDENT
1
CORAM : BAQWA J et RAUBENHEIMER AJ
BAQWAJ
lntroducti l n
[1] In this appeal the appellants appeal against the whole judgment and order
handed down by Magistrate SSE Samba on 21 June 2024 in terms of Sections
83(3) and 84 of the Magistrates Courts Act 32 of 1944 read with Rules 50 and
51 of the Uniform Rules of Court and the Magistrate's Court Rules.
[2] The Respondent had by way of action claimed arrear levies in the sum of
R266 081 .09 which included penalties imposed for the alleged failure by the
appellants to commence construction within the prescribed time frame as
contemp lated in Clause 7 of the respondent's rules.
[3] The action was opposed by the appellants on the basis that the stand was not
buildable due to unresolved geotechnical constraints and that clause 7, read
with clause 8, does not authorise penalty levies where construction is
objectively impossible.
The Facts
[4] Summarised, the dispute arose from the interpretation and application of
clauses 7 and 8 of the respondent 's rules in terms in terms of which:
4.1. Double levies are authorised to be charged in terms of Clause 7 on
buildable vacant stands where construction has not commenced.
4.2. Clause 8 provides for exemption where construction is not possible due to
site-specific constraints.
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[5] The appellants presented the evidence of Mr Ramdayal, a geotechnical expert
and Mr Ashooni who was the applicant's representative.
[6] The respondent tendered the evidence of Dr Heyns (the estate manager), Mr
Bester (association manager), Ms Olivier (bookkeeper) and Mr Einkamer
(Civil/geotechnical engineer).
Issue to be determined
[7] This court has to determine the proper interpretation of the term "buildable"
contained in clause 7 and whether the court a quo erred in finding that the
applicant's property fell within the definition contained in the clause.
Grounds of Appeal
[8] The appellants contend that"
81. the court a quo misconstrued clause 7 and failed to recognise that it applied
to stands which are objectively suitable for development and that its purpose
was to prevent delay and not to penalise persons who were legitimately
prevented from building
8.2. the court a quo had applied an unduly narrow interpretation of clause 8 and
ignored the language and context which contemplated exemption where
construction was not feasible due to geological or regulatory constraints.
8.3. the court an quo had failed to adopt the ordinary meaning of "suitable"
such as "fit or appropriate for a particular purpose"
8.4. the court a quo overlooked or alternatively misunderstood critical expert
and documentary evidence which demonstrated that the relevant stand was not
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yet certified as suitable for development which included correspondence from
the Council for Geoscience and Local authorities.
8.5. The court a quo misdirected itself in granting attorney-and-client costs
where the dispute was bona fide and turned on an ambiguous contractual
provision requiring judicial interpretation.
The Law
[9] It is trite that provisions which give rise to administrat ive penalties must be
interpretated restrictively in cases of doubt or ambiguity. Democratic Alliance v
African National Congress and Another 1 where the following was said:
"[129] ... In case of doubt, we are obliged to interpret their prohibition
restrictively. This means that we must resolve any ambivalence in them,
or uncertainty about their meaning, against the risk of being penalised.
[130] The restrictive interpretation of penal provisions is a Jong-standing
principle of our common law. The subject must know clearly and certainly
when he or she is subject to penalty by the State. If there is any
uncertainty about the ambit of a penalty provision, it must be resolved in
favour of liberty.
{131} This Court has endorsed this approach. And indeed the Bill of
Rights gives these considerations added force. It posits the rule of law
as a founding value of our Constitutional democracy. It entrenches the
common law's protections against arbitrary deprivation of liberty and
imprisonment. The common law presumption in favour of interpreting
1 Democratic Alliance v African National Congress and Another 2015 (2) SA 232 CC paras 121, 129 and
131 (DA v ANC).
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penalty provisions restrictively cherefore applies with added force under
the Constitution ".
[1 O] It is similarly appropriate to interpret Clause 7 of the agreement not only
restrictively but purposively in line with the principles envisaged in Natal Joint
Municipal Pension Fund v Endumeni Municipality 2 where a provision is
ambiguous , its possible meanings must be weighed against each other.
Analysis
[11] It is evident from a reading of the provisions of Clause 7 that the purpose was
to encourage timely development of buildable stands and that it cannot
reasonably be interpreted to penalise owners for failing to build where external
constraints, whether regulatory or geological make development objectively
impossible or impermissible. Such an interpretation would be contrary to both
commercial logic and legal principles. This is the kind of result which is warned
against by Wallis JA in Endumeni which he describes as "unbusiness like".
[12] A brief examination of the evidence of Dr Heyns especially where he responds
under cross examination regarding the build ability of the erf in question the and
the relevant prerequis ites for construction he conceded that "The re are a few
things needed to be done, I agree with that".
[13] Upon being pursued whether these things were "to make it buildable" he did
not hesitate to confirm "ja".
[14] When further confronted with the scenario that "if for instance the City of
Tshwane says no, you can't build here, what is the position of the Plaintiff?" he
admitted, "we have to accept it".
2 2012 SCA 13 Para 16.
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[15] It is common cause that the City of Tshwane had not given its assent to build
on the relevant erf. In those circumstances the admissions by Dr Heyns were
dispositive of the matter in that he was confirming that the erf was not buildable
at the relevant time. This was not due to any default or delay on the part of the
appellant but because of legitimate regulatory or geological impediments.
[16] The evidence from the respondent's own witness re-enforces the appellant's
interpretation of Clause 7 that penalty levies are only triggered where a
buildable stand is left undeveloped due to the owner's default and not where
objective external constraints render development legally or physically
impossible.
[17] Equally, an examination of the respondent's expert Mr Einkamerer results in
more questions than answers regarding the judgment and conclusions arrived
at by the court a quo. The appellants argue that his evidence was internally
inconsistent, selectively reasoned and in material respects unsupported by the
record and some of the documentation he purported to refer to.
[18] The record shows that Me Einkamerer dismissed the contents of multiple
correspondence from Geo Buro, Dolmatec and NHBRC without sufficient
substantiation and by merely stating that they were unsupported or incorrect.
[19] To illustrate the point, when confronted with a letter from Geo Buro dated 4
August 2016 which unequivocally stated that "the stand has been considered
not developable" Mr Einkamerer chose to disregard that conclusion claiming
that it lacked proper sourcing . This was despite Geo Buro being a professional
geotechnica l body and the letter summarizing findings by Dolmatec and the
Council of Geoscience (CGS).
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[20] Despite the above Mr Einkamerer, goes on to make a very telling concession
under cross-examination when he admitted that only "approximately 10% of the
property is buildable". This was a direct contradiction by himself to the effect
that the western portion of the stand was generally developable. The
concession was a confirmation that even the allegedly "developable" portion
was severely limited.
[21] It is common cause that the NHBRC, a statutory body with regulatory oversight
had declined the development application for the standby letter dated 26 July
2018. Mr Kamerer's response to that letter is that it was "not correct" without
any substantiation . In my view, reliance on the evidence of an expert such as
Mr Einkamerer, as the court a quo did was, to say the least, a misdirection with
the capability of simply rejecting objectively reliable evidence without being able
to support or substantiate such rejection.
[22] It the circumstances I find that the court a quo erred in accepting Mr
Einkamerer's evidence as determinative or persuasive as his conclusions were
unsupported by critical documentary and expert sources.
Condonation for late prosecution of the appeal
[23] The respondent has argued for the dismissal of the appeal on the basis of the
appellants having failed to comply with Uniform Rules 50(4) and 50(7) of the
Uniform Rules of Court.
[24] The appellants have not denied their non-compliance with the Uniform Rules
but have sought the condonation for failing to timeously provide the record of
the proceedings as required by the rules.
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[25] The court has a discretion in considering application by condonation. In United
Plant Hire (Pty) v Hil/s3 the following was said:
"It is well settled that, in considering applications for condonation, the court has
a discretion, to be exercised judicially upon a consideration of all the facts, and
in essence it is a question of fairness to both sides"
[26] Without going into the details of the appellants' explanation for the delay it can
be summarized as follows: The only reason proffered by the appellants'
attorney is that she "mistakenly believed that the record of the matter was not
necessary for the appeal and assumed that the [respondent] would supply it.
As a result, [she] had to wait for the record, which caused the delay in the
appeal process".
[27) This is one of those cases where the ineptitude and remissness of the attorney
is relied upon for the application for condonation. The explanation in this case
leaves much to be desired. It is absolutely astounding that a practicing attorney
can proffer such a lame excuse. It is however trite that in such cases
condonation will only be granted if prospects of success are strong. Saloojee
and Another NNO v Minister of Community Development 4, De Kuszaba
Dabrowski V Steel N05;
[28] I have considered the relevant authorities and the merits of this appeal. In
Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)6 the Constitutional Court held that:
3 United Plant Hire (Pty) v Hills 1976 (1) SA 717.
4 1965 (2) SA 135 (A) at 141H.
5 1966 (2) SA 277 (RA) at 280E.
6 Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae
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"This court has held that the standard for considering an application for
condonation is the interests of justice. Whether it is in the interests of justice
to grant condonation depends upon the facts and circumstances of each case.
Factors that are relevant to this enquiry include but are not limited to the nature
of the relief sought, the extent and cause of the delay, the effect of the delay
on the administration of justice and other litigants, the reasonableness of the
explanation for the delay, the importance of the issue to be raised in the
intended appeal and the prospects of success ".
[29] Three factors have tipped the scales in favour of my decision to grant the
condonation application and all of them are referred to in the Unitas decision
quoted above. They are the importance of the issue raised in this appeal, the
interests of justice and the prospects of success.
Conclusion
[30] In light of the above I have come to the conclusion that the court a quo
misdirected itself in its finding in favour of the respondent. It committed the said
misdirection in its applicat ion of clause 7 of the respondents rules by failing to
consider that the erf in question was not objectively buildable.
[31] The court a quo ought to have applied the principles enunciated in Endumeni
to Clause 7 read with Clause 8. Further, the court a quo ought to have adopted
a restrictive approach to interpretation of a penal provision as illustrated in the
Democratic Alliance matter.
[32] The court a quo erred in reaching the conclusion that "The fact that the
defendants wanted to embark on a large development does not do away with
the fact that a reasonable portion of the immovable property was developable"
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This conclusion was reached despite the common cause evidence that only ten
percent of the property was buildable. The conclusion by the court a quo was
at odds not only with the evidence but also with the Endumeni interpretative
approach.
[33] The court a quo also failed to take cognisance of the fact that the evidence
overwhelming ly demonstrated that construction was impossible due to
unresolved dolomitic hazards and outstanding regulatory approvals. a fact
conceded by both the respondent's own expert and estate manager.
[34] In the result, I propose that the following order be made
35.1. The appeal is upheld and the respondent is ordered to pay the costs of
the appeal.
35.2. The application for condonation of the late prosecution of the appeal is
granted.
35.3. The order of the court a quo is set aside and substituted with the following
35.4. The applicatio n is dismissed with costs.
SELBY BAQWA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION , PRETORIA
ETTIAN RAUBENHEIMER
ACTING JUDGE OF THE HIGH COURT
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I
.4
Date of hearing: 28 October 2025
Date of judgment: 10 February 2026
Appearance
behalf of the Applicants
Instructed by
On behalf of the Respondents
GAUTENG DIVISION, PRETORIA
Adv Z.A Teperson
zoe@group33advocates.com
Findlay & Niemeyer Inc
Adv E Furstenburg
furstenburg@rsabar.com
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