IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 34482/2018
In the matter between:
LEONARD HENRY FRIEDLAND First Applicant
MEGARAY LIMITED
(Registration Number: M2007/023564/06) Second Applicant
NIGHT VISION OPTICS (PTY) LTD
(Registration Number: M2005/029472/07) Third Applicant
and
THE BODY CORPORATE OF THE GROVE
SECTIONAL TITLE SCHEME First Respondent
REDBURN INVESTMENTS INCORPORATED
(Intervening) Second Respondent
NUMBER TWO GROVE (PTY) LTD (Intervening) Third Respondent
EYAL SARIG (Intervening) Fourth Respondent
MANALIS INTERNATIONAL (PTY) LTD (Intervening) Fifth Respondent
GERT LOUWRENS STEYN DE WET N.O.(Intervening) Sixth Respondent
OLCKERS CHOPOLOGE KOIKANYANG N.O.
(Intervening) Seventh Respondent
TANDAVANTU PROPERTIES (PTY) LTD (Intervening) Eighth Respondent
BANDIT OEM TRADING 102 (PTY) LTD (Intervening) Nineth Respondent
FAIRBANK PETER BRETHERICK (Intervening) Tenth Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
--1--
2
PALMARINE (PTY) LTD (Intervening) Eleventh Respondent
BHUTTA MUHAMMAD WASEEM (Intervening) Twelfth Respondent
RAFIQUE AMMARAH (Intervening) Thirteenth Respondent
STANLEY WEINSTEIN N.O. Fourteenth Respondent
Delivered: 1 April 2026 – This judgment is handed down electronically by circulation
to the parties' representatives via email and uploading it to CaseLines.
ORDER
1. The application to introduce new evidence is dismissed.
2. The costs of the application to introduce new evidence shall be paid by Mr
Stanley Weinstein personally, on the party and party scale, including costs of
counsel at scale B.
3. The counter-application for a review is dismissed.
4. The second to the thirteenth respondents shall pay the costs of the counter -
application on the party and party scale, including costs of counsel at scale B.
5. The settlement agreement dated 19 September 2019 between the applicants
and the first respondent is made an order of court.
6. The first to thirteenth respondents shall pay the costs of the application to make
the settlement agreement an order of court, jointly and severally, with the costs
payable by the first respondent on the attorney and client scale and the costs
payable by the second to thirteenth respondents on the party and party scale,
including costs of counsel at scale B.
3
JUDGMENT
BESTER AJ:
Introduction
[1] In the heart of Sandton lies The Grove, a sectional title scheme registered under
the Sectional Titles Act, 95 of 1986. It consists of eleven residential units and common
property. Sadly, the Body Corporate of The Grove, the first respondent, had been
unable to comply with its responsibilities for many years . So much so that, upon
application by Mr Friedland, who is the first applicant, Mr Stanley Weinstein was
appointed as administrator of the first respondent in terms of section 46(1) of the
Sectional Titles Act under an order granted by Mathopo J on 15 December 2009.
[2] However, disputes remained rampant, and monies to cover expenses, including
litigation expenses for the recovery of levies, continued to fall short. It seems that more
than fifteen years of external administration had done little to resolve the strife in this
small community.
[3] During 2015 and 2016, the first applicant and two entities controlled by him, the
second and third applicants, advanced funds to the Body Corporate to cover expenses,
including litigation costs to recover outstanding levies . Mr Friedland is a director of
Grove Unit 7 ( Pty) Ltd, which is the owner of Unit 7 in the S cheme and, as such, a
member of the Body Corporate.
[4] By 2018, the applicants and the Body Corporate could not see eye to eye on
the repayment of the advances, leading the applicants to institute summons against
the Body Corporate on 19 September 2018. Shortly thereafter, on 26 September
2018, the applicants and the Body Corporate, represented by its Administrator, Mr
Weinstein, entered into a written settlement agreement. This application seeks to
make that settlement agreement an order of court.
[5] The Body Corporate served a notice of its intention to oppose the application,
but never delivered an answering affidavit.
4
[6] T he second to thirteenth respondents, being the owners of the other ten units
in the scheme and thus all members of the Body Corporate, obtained leave to
intervene pursuant to an order of Cowen AJ dated 20 January 2021. In that order, the
intervening owners were granted leave to file an answering affidavit and counterclaim
within 15 court days of the order.
[7] The intervening owners indeed brought a counterclaim with their answering
affidavit, seeking the review and setting aside of the settlement agreement on the basis
that Mr Weinstein lacked authority to conclude it. For purposes of the counter -
application, they cited Mr Weinstein as the fourteenth respondent, but did not join him
to the proceedings.
[8] Mr Mushet, on behalf of the intervening owners (hereinafter simply referred to
as ‘the respondents’), initially sought to move a postponement application on the basis
that the respondents were under the impression that the administrator intended to
intervene in the matter, which did not happen. However, in argument , the
postponement was no longer pursued, and the respondents proceeded with the review
on the basis that the Body Corporate was the decision -maker whose decision was
sought to be reviewed, and that the Administrator was therefore not a necessary party
before the court.
[9] The parties thus proceeded on the basis that the Administrator was not a party
before court. Mr Louis Weinstein, an attorney, placed on record that he had a watching
brief for the Administrator at the hearing.
[10] Mr Mushet and Mr Morland, appearing for the applicants, agreed that the
settlement agreement should be made an order of court, unless the review succeeds.
[11] Sometime after the hearing, whilst judgment was still reserved, attorney Mr
Weinstein approached the Court with a request to bring an application to introduce
further evidence. I issued directives which allowed papers to be delivered in that
further evidence. I issued directives which allowed papers to be delivered in that
application, written submissions to be filed, and an oral hearing to be convened to hear
the application.
5
The issues
[12] The following issues have crystallised in this matter:
a) Should further evidence be admitted, and if so, what effect does this
evidence have on the outcomes in the two applications?
b) Are the intervening owners entitled to have the settlement agreement
reviewed and set aside?
c) Is the Administrator a necessary party to the review?
d) If the review fails, should the settlement agreement be made an order of
court?
e) The issue of costs.
The Review
[13] The respondents did not deliver a notice of motion in respect of their counter -
application. They relied on the affidavit of Ms Magill (with some supporting affidavits),
which served as an answering affidavit in the application to make the settlement
agreement an order of court and a founding affidavit for the counter -application. It
incorporated the relief sought at the end of the affidavit. If regard is had to the
provisions of Rule 6(7) read with Rule 6(1), this is not the appropriate manner to bring
a counter-application.
[14] However, the disputes amongst the parties have dragged on for several years,
and the applicants have answered the counter -application without demur and with a
clear understanding of the relief sought. As a result, they have not been prejudiced by
the respondents’ failure to deliver a notice of their counter -application separate from
their affidavit. In the circumstances , the respondents’ non-compliance with Rule 6 is
condoned in the interests of justice.
[15] The premise of the counter-application is straightforward (hereinafter ‘the
review’). The respondents formulated their challenge to the validity of the settle ment
agreement as follows:
6
“27.1. Weinstein had no authority and power to conclude the settlement
agreement according to Section 7(1) of the Sectional Titles Schemes
Management Act, 2011 (“STSMA”) as amended.
27.2. The decision of the Body Corporate is subject to review, both in terms
of the Promotion of Administrative Justice Act, 2000, and Common
Law.”
[16] In the heads of argument, and at the hearing, Mr Mushet advised that, given
the decision in Th e Legacy Body Corporate 1, the review is no longer pursued under
the Promotion of Administrative Justice Act.
[17] It is settled that a person with sufficient interest in a decision of the body
corporate of a sectional title scheme may seek a common law review thereof. 2 Ever
since Feldman3 our courts have held that the courts may interfere where a tribunal has
disregarded its own rules or the fundamental principles of fairness. It is not necessary
to delve into the meaning of what the fundamental principles of natural justice are,4
because a decision maker exceeding his authority is a long-accepted basis for a court
to interfere in the decisions of private bodies.
[18] The order appointing the Administrator provides as follows: -
“1. Stanley Weinstein is hereby appointed in terms of section 46(1) of the
Sectional Titles Act 95 of 1986 ( “the Act”) as the administrator (“the
administrator”) of the First Respondent.
2. The administrator shall forthwith have all powers and functions of the
trustees of the First Respondent as envisaged and furnished in terms of
sections 37, 38 and 39 of the Act as read with the First Respondent’s
management and conduct rules.
1 Trustees for the time being of The Legacy Body Corporate v Bae Estates and Escapes (Pty) and
Another 2022 (1) SA 424 (SCA).
2 The Legacy Body Corporate above at paragraphs 37 and 38.
3 Jockey Club of South Africa and Others v Feldman 1942 AD 340 at 350 to 351; see also Turner v
Jockey Club of South Africa 1974 (3) SA 633 (A) at 646C – 647B.
4 See for instance Turner above at 646D – 647A.
7
3. The administrator shall every 4 months from date of this order prepare a
written report and furnish same to every owner in the First Respondent’s
scheme setting out the First Respondent's current state of affairs.
4. The administrator or any owner in the First Respondent's scheme may
on good cause apply to this court for an order to terminate the
administrator’s appointment and/or to vary the terms of this order.
5. The remuneration of the administrator shall be:
5.1. paid by the First Respondent and regarded as an administration
expense of the First Respondent in terms of Section 37(1)(a) of
the Act;
5.2. limited to the fees payable to a trustee when administering an
insolvent estate of the Insolvency Act 24 of 1936 as amended;
5.3. the costs of this application shall be paid by the Applicant on an
attorney and client scale and shall be regarded as an
administration expense of the First Respondent in terms of
Section 37(1)(a) of the Act.”
[19] The now-repealed Section 46 of the Sectional Titles Act read as follows:
“(1) A body corporate, a local authority, a judgment creditor of the body
corporate for an amount of not less than R500, or any owner or any person
having a registered real right in or over a unit, may apply to the Court for
the appointment of an administrator.
(2) (a) The Court may in its discretion appoint an administrator for an indefinite
or a fixed period on such terms and conditions as to remuneration as it
deems fit.
(b) The remuneration and expenses of the administrator shall be
administrative expenses within the meaning of section 37 (1) (a).
8
(3) The administrator shall, to the exclusion of the body corporate, have the
powers and duties of the body corporate or such of those powers and
duties as the Court may direct.
(4) The Court may, in its discretion and on the application of any person or
body referred to in subsection (1) remove from office or replace the
administrator or, on the application of the administrator, replace the
administrator.
(5) The Court may, with regard to any application under this section, make
such order for the payment of costs as it deems fit.”
[20] Section 37 set out the functions of b odies corporate; Section 38 set out their
powers; and Section 39 provided that:
“(1) The functions and powers of the body corporate shall, subject to the
provisions of this Act, the rules and any restriction imposed or direction
given at a general meeting of the owners of sections, be performed and
exercised by the trustees of the body corporate holding office in terms of
the rules.”
[21] The Sectional Title Schemes Management Act 8 of 2011 (the Management Act)
commenced on 7 October 2016. Its preamble explains that the purpose of the Act is:
-
“To provide for the establishment of bodies corporate to manage and regulate
sections and common property its sectional titles schemes and for that purpose
to apply rules applicable to such schemes; to establish a sectional titles
schemes management advisory council; and to provide for matters connected
therewith.”
[22] The Management Act repealed the various provisions of the Sectional Titles Act
that dealt with the establishment of bodies corporate and other matters now within its
purview. The repealed sections included Sections 46, 37, 38 and 39, all of which were
replaced by similar provisions in the Management Act.
9
[23] Of particular relevance is Section 16 of the Management Act, which governs the
appointment of administrators (previously dealt with in Section 46 of the Sectional
Titles Act). Sub-section (6) provides as follows: -
“(6) The provisions of sub -section (4) apply, with the necessary changes
required by context, to the administrators appointed in terms of section
46 of the Sectional Titles Act.”
[24] Sub-section (4) provides that: -
“(4) The administrator must-
(a) convene and preside at the meetings required in terms of this Act and
the scheme's rules; and
(b) lodge with the ombud-
(i) copies of the notices and minutes of meetings; and
(ii) written reports on the administration process every three months
or at such shorter intervals as the Magistrate's Court may direct.”
[25] This provision seems to have been overlooked by the respondents, as will
become apparent below.
[26] Section 7 of the Management Act provides as follows in sub -section (1) (sub-
sections (2) and (3) have no bearing on the current dispute): -
“(1) The functions and powers of the body corporate must, subject to the
provisions of this Act, the rules and any restriction imposed or direction
given at a general meeting of the owners of sections, be performed and
exercised by the trustees of the body corporate holding office in terms of
the rules.”
10
[27] As can be seen, th e wording is identical to the now -repealed Section 39(1) of
the Sectional Titles Act, referred to in the order appointing Mr Weinstein as
administrator.
[28] I therefore agree with Mr Mushet’s submission that the administrator’s powers
are subject to the restrictive conditions contained in the repealed Section 39(1) of the
Sectional Titles Act and Section 7(1) of the Management Act, which replaced it.
[29] A substantial portion of the founding affidavit in the review is devoted to a series
of meetings called by the owners of units , or the individuals controlling the property -
owning entity, who also reside in those units . This appears to account for six of the
eleven units. From these events , the respondents seek to draw the conclusion that
the agreement under which the applicants would advance funds to the first respondent
was subject to a condition that the advances would be due and payable only upon the
sale of unit five (to recover outstanding levies and legal costs).
[30] However, the whole exposition is irrelevant to the issues to be determined. It is
not the respondents’ case that the repayments were not due when the Administrator
signed the settlement agreement. Their ground of review is that he lacked the authority
to do so. I therefore do not deal with this aspect further, save to say that the affidavits,
in any event, do not evidence that such a condition formed part of the loan agreement.
[31] As already mentioned, on 19 September 2018, the applicants served a
summons for repayment of the loans on the Body Corporate, under this case number.
Ms Magill, who deposed to the answering affidavit on behalf of the respondents,
explained that she assisted the Administrator in reviewing the supporting documents
submitted by the first applicant in support of the advances made, spending two weeks
in June 2019 working through them . Ms Magill and the Administrator created a draft
in June 2019 working through them . Ms Magill and the Administrator created a draft
schedule for itemised costs, with the Administrator sending her a revised schedule
sometime later. She informed him that she disagreed with the revised quantum.
[32] T he respondents’ case for a review centred around a meeting held some weeks
before the settlement agreement was concluded. Ms Magill testifie d that the fourth
respondent, Mr Sarig, called a meeting “to obtain an understanding of outstanding
11
general matters”, which took place on 1 August 2019 at u nit ten. The owners or
beneficial owners of five units (2, 3, 7, 8, and 10) were present, and the owner of unit
eleven was contacted by telephone during the meeting. Ms Magill states that: -
“The Respondents present unanimously agreed that the First Applicant must
first submit the quantum of the Applicant’s claim to all members of The Grove
before the Body Corporate finalised any agreement.”
[33] The meeting was not called by the Administrator, nor did he preside at the
meeting, as required by Section 16(4)(a) of the Management Act – he was apparently
not even aware of the meeting. It was not a meeting to which all unit owners were
invited. Any decisions taken at this meeting did not bind the Body Corporate or the
Administrator. It does not constitute a “direction given at a general meeting of the
owners of sections”, as provided for in the repealed Section 39(1) of the Sectional
Titles Act, and re-enacted in Section 7(1) of the Management Act.
[34] Ms Magill states that the Administrator had previously agreed to this
requirement. She does not explain why it was necessary for the unit owners present
at the meeting on 1 August 2019 to revisit the matter. She also does not provide any
facts setting out the context and circumstances of when, where, and with whom the
Administrator so agreed.
[35] Ms Magill continues: -
“I told the meeting that Weinstein had assured me that no agreement would be
entered into until all owners had sight of the claim, its quantum and were duly
satisfied with its legitimacy.”
[36] It seems that when Ms Magill stated that the Administrator had previously
agreed that the quantum must first be submitted to the owners of sections in the
scheme before any agreement is finalised, she was referring to what she calls ‘an
assurance’ from the Administrator to her. Again, no detail is provided, simply Ms
Magill’s conclusion.
12
[37] In President of the Republic of South Africa and Others v M & G Media Ltd 5 the
Supreme Court of Appeal considered the test for personal knowledge in the context of
tendering admissible evidence. The Court held that knowledge of an occurrence of an
event may come to a person in one of three ways:
a) first: through direct experience, in which event the said person’s
evidence is admissible to prove the occurrence (issue);
b) second: through the report of another person, in which event a proper
basis must be laid for admitting the evidence as hearsay and enabling its weight
to be evaluated; or
c) third: through deduction, by way of drawing inferences from other facts,
in which event it is not evidential material at all, given that it is for a Court to
draw inferences itself, upon the proof of primary facts.
[38] The third category was elucidated upon in Die Dros (Pty) Ltd and Another v
Telefon Beverages CC and Others6 as follows:
“[28] It is trite law that the affidavits in motion proceedings serve to define not
only the issues between the parties, but also to place the essential evidence
before the Court for the benefit of not only the Court but also the parties. The
affidavits in moti on proceedings must contain factual averments that are
sufficient to support the cause of action on which the relief that is being sought
is based. Facts may be either primary or secondary. Primary facts are those
capable of being used for the drawing of inferences as to the existence or non-
existence of other facts. Such further facts, in relation to primary facts, are called
secondary facts. Secondary facts, in the absence of the primary facts on which
they are based, are nothing more than a deponent's own conclusions and
5 2011 (2) SA 1 (SCA) at [37].
6 2003 (4) SA 207 (C) at [28]. See also Radebe and Others v Eastern Transvaal Development Board
1988 (2) SA 785 (A) at 793 C-E and South African Post Office v De Lacy and Another 2009 (5) SA 255
(SCA) at [35].
13
accordingly do not constitute evidential material capable of supporting a cause
of action.”
[39] An applicant is required to set out the primary facts from which the inferences,
the secondary facts, may be obtained.7 As the Supreme Court of Appeal explained in
Willcox v CIR8:
“There is nothing artificial or technical about the notion of primary facts. Facts
are conveniently called primary when they are used as the basis for inference
as to the existence or non- existence of further facts, which may be called, in
relation to primary facts, inferred or secondary facts.”
[40] Secondary facts in the absence of the primary facts on which they are based are
nothing more than the deponent’s conclusions, which are the expression of an opinion
and do not constitute evidential material capable of supporting a cause of action.9
[41] In the result, there is simply no evidence in support of the averment that the
Administrator agreed with the owners of the sections not to conclude a settlement
agreement before they are all satisfied with the quantum of the applicant’s claim.
[42] Moreover, such an undertaking would not meet the requirement of a direction
given at a general meeting of the owners of sections in the scheme, as required by the
statutory provision. There was no such meeting.
[43] The email from Mr Sarig , sent the following day to those who attended the
meeting, does not record any assurance by Ms Magill regarding the Administrator’s
undertaking. Rather, the contents of the email suggest that it had not been raised. Mr
Sarig records: -
“It was agreed with unit 7 that ALL the owners should have the opportunity to
see the claim and to ascertain the legitimacy of the amounts claimed. Unit 7
7 Willcox and Others v Commissioner for Inland Revenue 1960 (4) SA 599 (A) at 602A; Radebe above
at 792 I – 793 G/H.
8 Willcox above at 601 J – 602 A.
9 Willcox above; Radebe above; Die Dros above at [28]. For the correct approach to drawing inference,
see De Lacy above in [35].
14
was adamant that Stanely and Diane would first reconcile the claim and that it
would be at the time when Diane came to JHB that the other owners would see
the claim.”
[44] The first applicant is the Director of the owner of unit seven, as mentioned
earlier. ‘Stanley’ refers to Mr Weinstein, and ‘Diane’ refers to Ms Magill.
[45] The first applicant , in any event , disputed the recordal in an email sent in
response thereto on 4 August 2019. He, amongst other things, stated: -
“Stanley is the only person empowered to decide and agree for the Body
Corporate as to what is the final amount that he accepts for The Grove BC, and
if I agree to it, and based on this acceptance by both parties, Stanley and I can
then go forward and negotiate the terms and conditions with the aim of crafting
an agreement. As there are no negotiations that have taken place up until this
day, there is therefore nothing considered, binding, offered or accepted by either
Stanley or I.”
[46] I therefore conclude that the owners of the eleven units in the scheme did not
direct the Administrator to submit the claim quantification to the owners before
concluding the settlement agreement with the applicants.
[47] Ms Magill further complains that, as she understands the facts, the first
applicant kept “pressurising” the Administrator to resolve the quantum of the
indebtedness, and that these actions were directed to the Administrator, and not to the
sub-committee of four owners, which the respondents say received the blessing of
Weinstein to start running the day-to-day affairs of the Scheme.
[48] I point out that there is no suggestion b y any party and no evidence to support
a conclusion that there was a delegation of powers to these four members. It is
therefore not necessary for me to consider whether the Administrator could lawfully
delegate his powers under the terms of his appointment.
15
[49] Irrespective of the status of this sub- committee, the Body Corporate’s affairs
were still under the control of the Administrator, and the first applicant legitimately
engaged with him regarding the repayment of monies owed to the applicants.
[50] The respondents contended that there is a dispute of fact on the papers, which
requires the issue of whether the Administrator had the authority to conclude the
settlement agreement to be referred to oral evidence. However, on their own version,
the respondents have failed to present a prima facie case for such an outcome. They
must fail on their own version alone. As a result, although there are disputes between
the parties regarding the events leading up to the settlement agreement, they need
not be resolved to decide the application. There is thus no need to refer any issue to
oral evidence under Uniform Rule 6(5)(g).
The application to submit further evidence
[51] As mentioned earlier, whilst judgment was reserved, Mr Louis Weinstein, the
attorney, intimated that the Administrator sought an opportunity to bring an application
to admit further evidence. He had come on record for the Administrator as well as the
Body Corporate. The latter was previously represented by Mr Van Rensburg, who is
also the respondents’ attorney. It remains unclear on what basis the notice in respect
of the Administrator was filed, given that the Administrator and all the other parties
accepted at the hearing of the matter that the Administrator was not a party to the
proceedings.
[52] I gave directions for the delivery of papers in the application and written
submissions in respect thereof.
[53] The application, purported to have been brought by the A dministrator, seeks
the following relief:
a) t hat the Body Corporate be granted leave to introduce new evidence,
alternatively, further evidence (without identifying what this evidence
constitutes);
16
b) that the applicants and AJ Van Rensburg Inc. pay the costs of the
application; and
c) seeking a dismissal of the main application (that is, the application to
make the settlement agreement an order of court), on behalf of the first
respondent, with the costs to be paid by the applicants and AJ Van Rensburg
Incorporated.
[54] This court has a discretion to admit new evidence after the hearing of the matter
but before judgment is delivered.10
[55] The considerations to be taken into account include the following:11
“(i) The reason why the evidence was not lead timeously.
(ii) The degree of materiality of the evidence.
(iii) The possibility that it may have been shaped to relieve the pinch of the
shoe.
(iv) The balance of prejudice, i.e. the prejudice to the plaintiff if the application
is refused, and the prejudice to the defendant if it is granted. This is a
wide field. It may include such factors as the amount or importance of the
issue at stake; the fact that a defendant’s witnesses may already have
dispersed; the question whether the refusal might result in a judgment of
absolution, which event whether it might not be as broad as it is long to
let the plaintiff lead the evidence rather than to put the parties to the
expense of proceedings de novo.
(v) The stage which the particular litigation has reached. Where judgment
has been reserved after all evidence has been lead on both sides and,
just before judgment is delivered, the plaintiff asks for leave to lead further
evidence, it may well be that he will have a harder row to hoe, because of
factors such as the increased possibility of prejudice to the defendant, a
10 Mostert v Cape Town City Council 2001 (1) SA 105 (SCA) in para 45.
11 Mkwanazi v Van der Merwe and Another 1970 (1) SA 609 (A) at 616G – 617D; Mostert above in para 45.
17
greater need to for finality , and the undesirability of throwing the whole
case into the melting pot again, and perhaps also the convenience of the
court, which is usually under some pressure in its roster of cases. On the
other hand, where a plaintiff closes his case and, before his opponents
have taken any steps, asks for leave to add some further evidence, the
case is then still in medias res as it were.
(vi) The healing balm of an appropriate order as to costs.
(vii) The general need for finality in judicial proceedings. This factor is usually
cited against the applicant for leave to lead further evidence. However,
depending on the circumstances, finality might be sooner achieved by
allowing such evidence and getting on with the case, than by granting
absolution and opening the indeterminate way to litigation de novo in all
its tedious amplitude.
(viii) The appropriateness, or otherwise, in all the circumstances, of visiting the
remissness of the attorney upon the head of his client.”
[56] The test of materiality would be satisfied where the evidence tendered, if
believed, is material and likely to be weighty.12
[57] The circumstances within which the application was brought are rather peculiar.
The Administrator and all the parties to the proceedings agreed that he was not a party
to these proceedings. He had never been joined. Yet he saw fit to bring an application
to lead further evidence without, at the same time, applying to be joined as a party to
the proceedings. For this reason alone, his application should be considered irregular
and be ignored.
[58] As can be seen from the formulation of the relief, it has the peculiar
characteristic that the Administrator purports to bring the application on behalf of the
Body Corporate. The principal prayer seeks an order granting the Body Corporate
(and not the Administrator) leave to introduce new evidence. In the circumstances, I
12 Oosthuizen v Stanley 1938 AD 322 at 333.
18
deem it appropriate to treat the application as an application by the Body Corporate to
introduce new evidence, and I will consider it in that context.
[59] This, however, creates a further hurdle. As mentioned earlier, although the first
respondent delivered a notice of its intention to oppose the application to make the
settlement agreement an order of court, it never delivered an answering affidavit.
There has been no explanation from any party or person involved in this matter why
that is so. What one can glean from the papers is that, instead of delivering the
answering affidavit, AJ Van Rensburg Inc, then still acting for the Body Corporate,
launched the intervention application on behalf of the respondents. How this came
about remains unclear.
[60] In reality, then, the application, although framed as an application to introduce
new or further evidence, is in reality an application for the (extremely) late delivery of
an answering affidavit. Yet, no such case is made out in the application. For this
reason alone, the application must fail. But there are further reasons why the
application must fail.
[61] The Administrator’s founding affidavit is difficult to follow. Early on in the
affidavit, he requests that the contents of an earlier affidavit be “read as if repeated
and contained herein”. This, he says, refers to an affidavit he affirmed in September
2024, but it was not admitted at the hearing. The document, however, remains a
mystery. It does not appear in the record, and at the hearing, Mr Louis Weinstein
accepted that he can only hold a watching brief, given that the Administrator was not
joined as a party to the proceedings. There was thus never an opportunity for him to
move to admit any affidavit. In any event, the Administrator has dealt with the matter
no further and thus has not made out a case for the admission of further evidence in
the form of that elusive affidavit.
the form of that elusive affidavit.
[62] Although not clearly delineated, the new evidence sought to be introduced
appears to consist of two parts. The Body Corporate seeks to introduce what the
Administrator claims are its conduct rules, and to introduce material in respect of an
allegation by the Administrator that he signed the settlement agreement under duress
from the first applicant.
19
[63] I consider the application to admit the conduct rules first. The import of the
Administrator’s evidence is that he had never been aware that the Body Corporate had
conduct rules. This is, to say the least, an astonishing statement. It implies that the
Administrator has been administering the Body Corporate for more than 15 years,
without ever considering that it might have conduct rules, even though these are
required by statute.13
[64] The Administrator blames Mr Van Rensburg, whom he contends never told him
about the rules. This is an unacceptable proposition. As the Administrator, he should
have been aware of the rules and familiarised himself with them . His failure to do so
should be of grave concern to the members of the Body Corporate.
[65] T he Administrator contends that he only obtained a copy of the conduct rules
from the Body Corporate’s Managing Agents, Berader Properties, in December 2024.
By that time, he explains, Berader Properties had been the Managing Agents for some
seven years.
[66] In his founding affidavit, the Administrator does not explain why he belatedly
sought a copy of the conduct rules . In his replying affidavit, the Administrator claims
that his current attorney was the one who pointed out to him that there was a
nondisclosure after he had read the papers. What the nondisclosure was, and how
his attorney would have known that from reading the papers, is not explained. If this
is a referral to the absence of a reference to the rules, the question must be asked:
how did the attorney know the contents of those rules if the Administrator did not?
[67] In his answering affidavit, the first applicant shows that, when he brought his
application to appoint Mr Stanley Weinstein as Administrator, a copy of the
Management Rules was attached to the papers. This put to bed any notion that the
Administrator could not reasonably have been aware of the existence and contents of
Administrator could not reasonably have been aware of the existence and contents of
the rules. Thus, there seems to be confusion about which rules apply , as the
administrator and the first applicant refer to different sets.
13 Repealed s35 of the Sectional Titles Act; s10 of the Management Act.
20
[68] In the circumstances, the following difficulties arise. First, there is uncertainty
about which set of rules actually governs the affairs of the Body Corporate. Second,
if that is resolved, the relevant rule needs to be interpreted, along with the order
appointing the Administrator, to determine whether it affects the Administrator's
authority to sign the settlement agreement. This constitutes a whole new case.
[69] If it is kept in mind that the respondent had not, in fact, opposed the matter, and
no explanation has been proffered as to why the rules are sought to be introduced at
this late stage, it seems that there may be something in the applicants’ contention that
the evidence is offered to relieve the pinch of the shoe. Furthermore, it is substantially
prejudicial to the applicants, who considered their claims settled several years ago,
but are now potentially confronted with reopening the whole matter afresh, without any
proper explanation as to why this issue is only raised now.
[70] In the circumstances, I do not consider it appropriate to allow this new evidence,
which would require the applicants to face a whole new case at this late stage.
[71] I now turn to the second aspect. The affidavit continues with an exposition of a
criminal complaint laid by the Administrator against the first applicant for intimidation
in 2021. The first applicant, in his answering affidavit, attaches the nolle prosequi
certificate indicating that the State declined to prosecute. That ought to be the end of
the matter. The Administrator suggests that he was forced to sign the agreement
under duress. However, he provides no detail. I refer to what I have set out above
regarding the need to present the primary facts and not simply present the Court with
the witness’s own conclusions.
[72] No defence has been properly pleaded with reference to the alleged duress;
rather, the Administrator simply throws in a few lines with some documents, hoping
rather, the Administrator simply throws in a few lines with some documents, hoping
that the Court will find a defence in it. That is wholly inappropriate. And if the defence
had been pleaded properly, it would have been a whole new case at this late stage.
The prejudice against the applicants is patent. I refer to what I said above in this regard.
21
[73] By the time this matter was heard, several years had passed during which the
Administrator had not raised these matters. This is not new evidence that came to his
knowledge after the hearing.
[74] Overall, the application was ill-considered and should not have been brought. It
should be dismissed.
Is the Administrator a necessary party to the proceedings?
[75] The applicants and the intervening owners agreed, correctly, that it is necessary
for the decision maker to be before the court in a review under the common law.
[76] The applicants cited the Body Corporate, on whose behalf the Administrator
entered into the settlement agreement. In his founding affidavit, the first applicant
stated as follows:
“6. The Respondent is the BODY CORPORATE OF THE GROVE
SECTIONAL TITLE SCHEME, represented by Stanely Weinstein N.O., an
adult male Chartered Accountant, sued in his capacity as the court
appointed Administrator of the Grove Sectional Title Scheme, and who
conducts business as a Chartered Accountant at …”
[77] It is evident from their citation that the applicants conflated two persons into one
in their application. They did not clearly distinguish between the Body Corporate of
the Grove Sectional Title Scheme, on the one hand, and Mr Weinstein in his capacity
as court-appointed administrator for the Grove Sectional Title Scheme, on the other.
[78] In their counter-application, the respondents referred to the Body Corporate as
the first respondent and cited Mr Weinstein, in his capacity as the scheme's
administrator, as the fourteenth respondent.
[79] Mr Weinstein, as the administrator of the scheme, was at all times aware of the
application, as the Body Corporate could only have knowledge of it by virtue of Mr
Weinstein, as its administrator, having obtained such knowledge.
22
[80] Thus, the functionary, although not joined, participated and had knowledge of
the proceedings, and the decision ultimately resides with the Body Corporate, albeit
that its functionary made the decision on its behalf.
[81] Given the conclusion reached in the review, I do not consider it necessary to
decide whether the decision maker is properly before the court. I nonetheless consider
that it was practically before the court.
Should the settlement agreement be made an order of court?
[82] As stated earlier, the applicants and the respondents were ad idem that, should
the review fail, the settlement agreement should be made an order of court. However,
the Court is not merely a rubber stamp for the parties' actions.
[83] The practice of making settlement agreements an order of court is well
established in South Africa.
14 An expedited end to litigation serves the parties’
interests and may also serve the interests of the administration of justice.15 Our courts
have approved Huber’s statement:16
“A compromise once lawfully struck is very powerfully supported by the law,
since nothing is more salutary than the settlement of lawsuits.”
[84] The Constitutional Court approved of what was stated in PL v YL:17
“[T]he policy underlying the favouring of settlement has as its underlying
foundation the benefits it provides to the orderly and effective administration of
justice. It not only has the benefit to the litigants of avoiding a costly and
acrimonious trial, but it also serves to benefit the judicial administration by
reducing overcrowded court rolls, thereby decreasing the burden on the judicial
system. By disposing the cases without the need for a trial, the case load is
14 Eke v Parsons 2016 (3) SA 37 (CC) in para [8].
15 Eke above in para [22].
16 Eke above in para [22], approving of Gane’s, Translation of Huber in the Jurisprudence of My Time, 5 th ed., as
quoted in PL v YL 2013 (6) SA 28 (ECG) in para [34].
17 Eke above in para [23]; PL above in paras [36] and [38].
23
reduced. This gives the court capacity to conserve its limited judicial resources
and allows it to function more smoothly and efficiently.
…
If on is then to proceed from the premise that the wider interests under
consideration [are those] of the administration of justice, then the court is
required, when exercising its discretion whether to make a settlement
agreement an order of the court, to give consideration not only to the need to
make orders that are readily enforceable, but also to assess the wider impact
which its order may potentially have.”
[85] This does not mean that a court will make anything agreed to by the parties an
order of court.18 The order must be one that is competent and proper. This requires
the court not to mechanically adopt the terms of the settlement agreement. Three
primary considerations arise:19 The agreement must relate directly or indirectly to an
issue or lis between the parties; the agreement must not be objectionable, so that its
terms are capable of being included in a court order, both from a legal and a practical
point of view; and the agreement must hold practical and legitimate advantage. The
Court must act in a stewardly manner, ensuring its resources are used efficiently.20
[86] Having considered the settlement agreement, there appears to be nothing
untoward about its terms, and making it an order is competent and proper. Obviously,
dates agreed for the performance of obligations – the payments to be made by the
Body Corporate to the applicants – have come and gone over the intervening years.
However, that is not a reason not to make the settlement agreement an order of court.
It is appropriate that this matter be brought to an end.
[87] In the circumstances, I am satisfied that the settlement agreement ought to be
made an order of court.
18 Eke above in para [25].
19 Eke above in paras [25] to [26].
20 Eke above in para [34].
24
Conclusion & costs
[88] In the summary, the application for the admission of further evidence must fail,
and so too the review. The application to make the settlement an order of court should
succeed.
[89] Clause 6 of the settlement agreement provides that, in the event that any of the
plaintiffs find it necessary to take any steps to enforce the provisions of the agreement,
the defendant shall pay those costs as between attorney and client. Ultimately, the
Body Corporate opposed the matter, albeit in an unusual manner. The applicants are
entitled to their costs as agreed.
[90] There is no reason why the costs should not follow the result in the counter -
application for a review. The appropriate costs order , in my view, is that the
respondents must pay the costs of the review on a party -and-party basis, including
counsel's costs at scale B.
[91] In respect of the application for the admission of further evidence, the applicants
seek costs de bonis propriis against Mr Stanley Weinstein. In the light of his conduct
as set out above, such a costs order seems warranted.
[92] In Pheko II21 the Constitutional Court explained the concept of costs de
bonis propriis in the following terms:
“Costs de bonis propriis are costs which a representative is ordered to pay out
of his or her own pocket as a penalty for some improper conduct, for example,
if he or she acted negligently or unreasonably. Whether a person acted
negligently or unreasonably must be decided in the light of the particular
circumstances of each and every case.”
[93] In Pheko II the Constitutional Court concluded that an attorney should be
held liable for the costs because “[w]hile the evidence may not establish
21 Pheko II & Others v Ekurhuleni City 2015 (5) SA 600 (CC) in [51].
25
wilfulness or mala fides, it does establish a gross disregard for his professional
responsibilities”.22
[94] In Public Protector v Reserve Bank 23 the Constitutional Court pointed out
that considering whether to award costs de bonis propriis and considering a
costs order on the attorney and client scale are two separate inquiries:
“It does not follow that a punitive costs order will always be justified in
circumstances where a personal costs order is warranted. An order for personal
costs against a person acting in a representative capacity is in itself inherently
punitive. The imposition of costs on an attorney and client scale is an additional
punitive measure. This could, as pointed out in the first judgment,
24 be viewed
as ‘double punishment’. While the test for awarding a personal costs order or
costs on a punitive scale may overlap, an independent, separate enquiry should
be carried out by a court in respect of each order. Both personal and punitive
costs a re extraordinary in nature and should not be awarded willy-nilly’, but
rather only in exceptional circumstances.”
[95] The Constitutional Court further noted that punitive costs seek to deter
reprehensible behaviour by a litigant. 25 A court must consider what is just and
equitable in the circumstances of the particular case to secure a just and fair
outcome.26 The Court identified categories where such costs orders have been
granted in the past: fraudulent, dishonest or mala fide conduct; vexatious conduct;
and conduct that amounts to an abuse of the process of court. 27 The Court repeated
its previous endorsement 28 of the statement by the Labour Appeal Court in Plastic
Converters Association of South Africa29 that:
22 Pheko II above in [54].
23 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) in [220].
24 This is a reference to the minority judgment in the matter.
25 Public Protector above in [221].
26 Public Protector above in [222].
27 Public Protector above in [223].
26 Public Protector above in [222].
27 Public Protector above in [223].
28 Limpopo Legal Solutions I v Vembe District Municipality 2017 (9) BCLR 1216 (CC); [2017] ZACC 14 in [28].
29 In Plastic Converters Association of South Africa on behalf of members v National Union of Metal Workers of
SA [2016] 37 ILJ 2815 (LAC) in [46].
26
“[t]he scale of attorney and client is an extraordinary one which should be
reserved for cases where it can be found that a litigant conducted itself
in a clear and indubitably vexatious and reprehensible conduct. Such an
award is exceptional and is intended to be very punitive and indicative of
extreme opprobrium.”
[96] In my view, Mr Weinstein should not be burdened with a punitive costs order.
His conduct, in my view, does not attract double punishment.
[97] In the result, I make the following order:
a) The application to introduce new evidence is dismissed.
b) The costs of the application to introduce new evidence shall be paid by
Mr Stanley Weinstein personally, on the party and party scale, including costs
of counsel at scale B.
c) The counter-application for a review is dismissed.
d) The second to the thirteenth respondents shall pay the costs of the
counter-application on the party and party scale, including costs of counsel at
scale B.
e) The settlement agreement dated 19 September 2019 between the
applicants and the first respondent is made an order of court.
f) The first to thirteenth respondents shall pay the costs of the application
to make the settlement agreement an order of court, jointly and severally, with
the costs payable by the first respondent on the attorney and client scale and
the costs payable by the second to thirteenth respondents on the party and
party scale, including costs of counsel at scale B.
____________ ______________ _____
A Bester
Acting Judge of the High Court of South Africa
Gauteng Local Division, Johannesburg
27
Heard: 5 September 2024
Judgment Date: 1 April 2026
Counsel for the applicants: L C M Morland, instructed by Warrener de
Agrela and Associates Inc.
Counsel for the second to
thirteenth respondents: S Mushet, instructed by AJ Van Rensburg
Incorporated.
Counsel for Mr Weinstein: L Weinstein, attorney