IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No: 17685/22P
In the matter between:
AWANDE BC PROPERTIES (PTY)LTD APPELLANT
and
THE BODY CORPORATE OF JUNBARA SCHEME, FIRST RESPONDENT
SCHEME 136/2027
COMMUNITY SCHEMES OMBUD SERVICE SECOND RESPONDENT
THE CHAIRPERSON OF THE BOARDS OF THE THIRD RESPONDENT
COMMUNITY SCHEMES OMBUD SERVICE
THANDEKA P QWABE N.O. FOURTH RESPONDENT
_________________________________________________________________
ORDER
1. The appeal is upheld
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2. The order made by the Adjudicator is set aside. It is replaced with the
following order:
1. The conduct rules of the Body Corporate of Jinbara Scheme Number
136/2017 registered and approved by the Chief Ombud on 31 March 2022
are declared invalid.
2. The Body Corporate must approve and record new conduct rules and
submit such for approval and registration as prescribed, pending that the
conduct rules prescribed in the STSMA Regulations rules of the Zimbali
Estate Management Association shall prevail and are applicable.
3. The first respondent is ordered to pay costs of the appeal on scale B.
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JUDGMENT
Mngadi J
[1] The app ellant appeals against an adjudicat or’s order in terms of s57 of the
Community Schemes Ombud Service Act No 9 of 2011. The appeal is confined to
the question of law.
[2] The appellant is Awande B C Properties (Pty) Ltd (Awande) a company duly
registered and incorporated in terms of the law. The first respondent is the Body
Corporate of the J inbara Scheme, a body corporate established in terms of s2(1) of
the Section Titles Schemes Management Act No 8 of 2011 (the STSMA). The
second respondent is the Community Schemes Ombud Service (the SOS) a juristic
entity established in terms of s3 of the Community Schemes Ombud Service Act No
4 of 2011 (the SOS Act). The third respondent is the chairperson of the Board of the
second respondent. The fourth respondent is Ms Thandeka P Qwabe N . O. (the
Adjudicator) an adult female in her capacity as the appointed adjudicator in terms of
s48 of the CSOS Act.
[3] The first respondent oppose s the appeal. The other respondent s filed a
notice to abide.
[4] The appellant appeals against the order of the 4 th respondent upholding the
decision of the Chief Ombud made on 31 March 2022 approving and registering
conduct rules of the first respondent.
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[5] The appellant in June 2022 referred a dispute to the SOS for dispute
resolution as contemplated in s38 of SOS Act. The dispute related to the scheme
governance issues as contemplated in s39(3) of the CSOS Act, more particularly the
approval and registration by the Chief Ambud of conduct rules in respect of J inbara
in terms of s10 of STSMA on 31 March 2022 referred to as the March 2022 conduct
rules.
[6] The appellant sought orders in terms of s39 (3) (b)and /or s39 (3) ( c) of the
CSOS Act, declaring the said conduct rules invalid such rules to be replaced by the
rules in place prior to their approval and registration.
[7] The sectional title scheme known as J inbara ST 137/2017 is situated at
Zimbali South, KwaZulu - Natal, it was established as a sectional title scheme in
terms of the Sectional Title Act no 95 of 1986 (the STA). Jinbara consists of five free
standing units used for residential purposes. The appellant purchased unit 4 from its
previous owner on 18 June 2021 and the unit was registered in the name of the
appellant on 2 June 2021. The appellant purchased the unit by funds advanced by a
bank in order to generate an income in the form of rentals. The appellant rented out
the unit and in December 2021 he was told, of which he was not aware , that
Jinbara’s conduct rules did not allow short -term letting of the units. This resulted in
the issue of reconsideration of the conduct rules of Jinbara arising.
[8] On 6 January 2022, it was established that conduct rules of March 2021
prohibited an owner of a unit to lease the unit for short term rental. O n 18 January
2022 a special general meeting was called to be held on 17 February 2022 to
discuss proposed amendments to the conduct rules. On 16 February 2022 it was
found that no conduct rules were approved and registered by CSOS for Jinbara. On
17 February 2022 the special general meeting resolved to attend to the creation of
17 February 2022 the special general meeting resolved to attend to the creation of
the new conduct rules for approval in the next annual general meeting in April 2022.
[9] On 19 March 2022 in a notice for the annual general meeting to be held on 21
April 2022 proposed March 202 2 conduct rued were circulated . However, on 21
April 2022 the meeting was informed that the March 2022 conduct rules had been
approved and registered by CSOS on 31 March 2022.
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[10] The appellant challenged the decision for the approval and registration of the
March 2022 conduct rules by the CSOS before the Adjudicator on various grounds.
[11] The Adjudicator found that the purported amendment of the conduct rules ,
which conduct rules have not been approved and registered , is invalid. She found
that since the March 2021 conduct rules were not approved and registered no valid
amendments were made to those conduct rules.
[12] The Adjudicator, further, found that the approval and registration of the March
2022 conduct rules was irregular and invalid as such approval and registration was
not in accordance with the decision of meeting on 17 February 2022. In addition,
prior to the approval and registration of the March 2022 conduct rules the CSOS on
2 March 2022 made proposals for certain amendments to the proposed conduct
rules, which proposals although material were incorporated as amendments to the
conduct rules submitted for approval and registration although they had not been
considered and approved by the members of the body corporate by means of the
special resolution. The Adjudicator concluded that members of the body corporate
were ignores by the trustees and action taken without the mandate of the members
of the body corporate.
[13] The Adjudicator found that it is clear that there was no rule that prohibited
short-term letting of a unit in the scheme a t the time the appellant was advised that
short term lettering in the scheme was not permitted. The rules in place were the
Section Title Schemes Management Act rules and those of Zimbali Estate
Management Association.
[14] The Adjudicator found that CSOS work ed with what was before it. The
documents submitted by the trustees justified the approval and registration of the
conduct rules and the issue of a certificate. As a result, the approved rules cannot
be set aside. Therefore, the relief sought is misplaced. The appellant had to abide
by what had been approved.
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[15] The appellant contends on appeal that the only reasonable legal conclusion
from the Adjudicator’s factual findings is that the procedure followed for the approval
and registration of the March 2022 conduct rules including the approval and
registration of the rules was ultra vires, unlawful and in breach of s10 of the ST SMA.
Consequently, it is contended, based on those findings and the applicable legal
principle, the Adjudicator ought to have upheld the review and setting aside of the
decision of the CSOS to approve and register the March 2022 conduct rules.
[16] The Adjudicator found that the 17 February 2022 SGM took a decision for
reconsideration of the conduct rules with a view to create for approval and
registration a new consolidated set of conduct rules for consideration by the AGM in
April 2022. It is clear that for the Trustees of the body corporate to seek approval
and registration for the March 2022 conduct rules , they acted contrary to the
mandate of the members of the body corporate. There were no conduct rules by the
members of the body corporate to be considered for approval and registration by
CSOS on 31 Marh 2022. The purported approval, registration and issue of a
certificate by CSOS is a nullity, in particular, as found by the Adjudicator, it was done
fraudulently by the trustees.
[17] The first respondent contends that the appellant in utilising the provisions of
s39(3) of the CSOS Act which is aimed in challenging a particular conduct rule erred.
The appellant, it is argued, ought to have sought to review and set aside the decision
of the Ombud under s10 of the STSMA. This argument, in my view, has no merit.
The provision of s39 (3) provides for seeking a relief relating to the scheme ’s
governance issue or provision. In s 1 scheme governance provision is define d to
mean any rules, regulations, articles, constitution, terms, conditions or other
provisions that control the administration or occupation of private areas and common
provisions that control the administration or occupation of private areas and common
areas in a community scheme , and scheme governance provision has a
corresponding meaning. Therefore, in terms of the SCOS Act conduct rules form
part of the s cheme governance provision. The relief sought by the appellant falls
within the provisions of s39 (3) of CSOS Act.
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[18] The first respondent has sought in argument to question the factual findings
made by the Adjudicator . He questioned the factual findings relating to what
happened and what decisions were taken in the meetings of the body corporate . In
addition, he sought to justify the submission for approval and registration of the
conduct rules by the trustees , and the trustees effecting amendments in the conduct
rules without the approval of the body corporate. The first respondent’s difficulty is
that it has not cross -appealed. Further, the Adjudicator’s decision can only be
appealed on a question of law. Section 57 (1) of the CSOS Act provides that a
person dissatisfied by the Adjudicator’s decision may appeal to the High Court , but
only on a question of law.
[19] Section 53(1) (a) of the CSOS Act provides that the Adjudicator may make an
order dismissing the application for a relief , if after investigation, considers that the
application as frivolous, vexatious , misconceived or without substance . The
Adjudicator reasoned that documents submitted before the Ombud indicated that
approval and registration of the conduct rules was in order since no dispute had
been lodged with the Ombud.
[20] The Adjudicator, in my view, failed to deal with the question submitted to her
for adjudication. She misconstrued her powers . See Littlewood v Minister of Home
Affairs 2006 (3) SA 474 ( SCA) para16 ; Premier of the Western Cape v Overberg
District Municipality 2011(4) SA 441 (SCA) paras 37-8. The question was whether
the conduct rules when referred for approval and registration that was at the instance
of the body corporate or not, if not could the Ombud approve and register the
conduct rules as conduct rules of the scheme. The Adjudicator, based on her factual
findings, answered the first part of the question in the negative. The second part of
the question is answered by consideration of the provisions of the SCOS Act and
the question is answered by consideration of the provisions of the SCOS Act and
STSMA. The provisions of STSMA, s 10 makes it the responsibility of the body
corporate to make management and conduct rules for the management and control
of the scheme , and to submit the conduct rules to the Ombud for approval and
registration. The trustees in this regard can only carry out the mandate of the body
corporate. It matters not that the trustees misunderstood their task. The trustees in
submitting in March 2022 conduct rules to the Ombud for approval and registration
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acted without the mandate of the body corporate. They acted contrary to the
decision of the body corporate. Since they had no mandate wha t they purported to
do was of no legal significance. In essence, there were no conduct rules before the
ombud for approval and registration. The purported approval and registration is of
no legal significance. It is a nullity.
[21] The Adjudicator misdirected herself in relation to the legal conclusion she
arrived at. It is not in accordance with her factual findings. She committed an error
in law.
[22] It is ordered as follows:
1. The appeal is upheld.
2. The order made by the adjudicator is set aside. It is replaced with the
following order:
1. The conduct rules of the Body Corporate of Jinbara Scheme Number
136/2017 registered and approved by the Chief Ombud on 31 March 2022
are declared invalid.
2. The Body Corporate must approve and record new conduct rules and
submit such for approval and registration as prescribed , pending that the
conduct rules prescribed in the STSMA Regulations rules of the Zimbali
Estate Management Association shall prevail and are applicable.
3. The first respondent is ordered to pay costs of the appeal on scale B.
__________
Mngadi J
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APPEARANCES
Case Number: 17685/2022P
For the appellant: C D Pienaar
Instructed by : Matho Attorneys
c/o Stowell & Company
PIETERMARITZBURG
For the first Respondent: MC Tucker
Instructed by: De Wet Leitch Hands INC.
c/o Massingham Seymour Attorneys
PIETERMARITZBURG
For 2nd ,3rd and 4th Respondents: None
Instructed by; Legal Services Section
CENTURION
Heard on: 24 April 2026
Judgment delivered on: 05 May 2026