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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2026-077851
In the matter between:
KAGISO KHABENG 1st Applicant
A BODY OF MEMBERS OF THE
OVAL GARDENS BODY CORPORATE 2nd Applicant
and
W LABUSCHAGNE 1st Respondent
I SMITH 2nd Respondent
M YUSUF 3rd Respondent
A DLOMO 4th Respondent
Delete whichever is not applicable
REPORTABLE: YES / NO
OF INTEREST TO OTHER JUDGES: YES/NO
REVISED: YES/NO
28 April 2026
DATE SIGNATURE
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PRETOR GROUP (PTY) LTD 5th Respondent
JUDGMENT
Mazibuko J
Introduction
[1] On 2 April 2026 on an urgent basis, the applicants launched an ex parte
application seeking the following relief:
‘1. …
2. …
3. That, pending the final determination of Part B of this application:
3.1. The first to fourth respondents are interdicted and restrained
from convening, holding, or in any way proceeding with the
meeting scheduled for 2 April 2026, purportedly as an Annual
General Meeting of the third respondent;
3.2. The Respondents are interdicted and restrained from taking
any steps to elect, appoint, confirm or recognise any trustees
pursuant to the said meeting;
3.3. The Respondents are interdicted and restrained from
implementing or giving effect to any resolutions purportedly taken
at the said meeting;
3.4. The status quo as at 19 March 2026, being the date of the
Special General Meeting convened by the members of the third
respondent, is preserved.
4. That the relief in paragraphs 3.1 to 3.4 shall operate as an interim
interdict with immediate effect.
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5. That the first to the firth respondent is directed pending the
determination of part B, to:
5.1. acknowledge the Special General Meeting convened on 19
March 2026 as a meeting purportedly convened in terms of
Regulation 17(4);
5.2. refrain from refusing, obstructing or interfering with the
administrative consequences arising from the said meeting and.
5.3. refrain from representing to members that the said Special
General meeting is invalid or of no force and effect.
PART B: FINAL RELIEF
5. That the Special General Meeting held on 19 March 2026 by the
members of the first and second applicant is declared to have been
lawfully convened in terms of Regulation 17(4) of the Sectional Title
Management Act.
6. That all resolutions adopted at the said Special General meeting are
declared valid and binding.
7. That the trustees elected at the said Special General Meeting, as
reflected in annexure “F4” to the founding affidavit, are declared to be
the lawful trustees of the first and second applicant.
8. That any meeting purportedly convened as an Annual General
Meeting on or about to April 2026 is declared unlawful, invalid, and of no
force or effect.
9. That the first to the firth respondent are directed to recognise and give
effect to the resolutions adopted at the Special General Meeting on 19
March 2026.
10. That the respondents, jointly and severally, the one paying the others
to be absolved, be ordered to pay the cost of this application, including
the cost of Part A and Part B, on an attorney and client scale.
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11. Further and/or alternative relief.’ (sic)
[2] On the same day, 2 April 2026, in the absence of the respondents , an order on
an urgent basis was granted in the following terms:
‘3. That pending the final determination of Part B of this application:
3.1. The First to Fourth respondents are interdicted and
restrained from convening, holding, or in any way proceeding with
the meeting scheduled for 2 April 2026, purportedly as an annual
general meeting of the third respondent;
3.2. The respondents are interdicted and restrained from taking
any steps to elect, appoint, confirm or recognise any trustees
pursuant to the said meeting;
3.3. The respondents are interdicted and restrained from
implementing or giving effect to any resolutions purportedly taken
at the said meeting;
3.4 The status quo as at 19 March 2026 , being the date of the
Special General Meeting convened by the members of the third
respondent, is preserved.
4. That the relief in paragraph 3.1 to 3.4 shall operate as an interim
interdict with immediate effect.
5. That the First to the Fifth respondent is directed , p ending the
determination of Part B, to:
5.1. acknowledge the Special General Meeting convened on 19
March 2026 as a meeting purportedly convened, in terms of
regulation 17(4).
5.2. refrain from refusing, obstructing or interfering with the
administrative consequences arising from the said meeting, and
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5.3. refrain from representing to Members that the Special
General Meeting is invalid or of no force and effect.
6. Cost of part A of the application are reserved for determination in Part
B of the application.’
[3] Following that order of 2 April, the respondents had brought this application on 9
April, on urgent basis for its reconsideration and setting aside. They seek an
order substituting the 2 April order in the following terms, that:
‘[2.1] The application instituted by the applicants under the above case
number be dismissed;
[2.2] The purported Special General Meeting allegedly held on 19 March
2026 was not validly requisitioned or convened in terms of the
Prescribed Management Rules, including PMR 17(4);
[2.3] Any resolutions purportedly adopted at such meeting are of no force
or effect; and
[2.4] The first to fourth respondents remain the duly appointed trustees
of the Body Corporate.
[2.5] The applicants to pay the costs of the application on the scale as
between attorney and client.’
The Parties
[4] The applicants in this case are respondents in terms of the interim order. For
convenience sake, the parties will be referred to as cited and as in the main
application.
[5] The applicant is Kagiso Khabeng (‘Khabeng’) in his personal capacity as an
owner and member of Oval Gardens body corporate, and in representative
capacity a s secretary appointed by the Body of members who convened and
participated in the Special General Meeting (‘SGM’) on 19 March 2026. The
second applicant is the Body of members of the Oval Gardens body corporate
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(‘The Body of members’). The first and second applicant s will t ogether be
referred to as applicants.
[6] The first respondent is W Labuschagne (‘Labuschagne’) referred to as the
current trustee of the Oval Gardens body corporate (‘the body corporate’). The
second respondent is I Smith (‘Smith’) referred to as the current trustee of the
body corporate . The third respondent is M Yusuf (‘Yusuf’) referred to as the
current trustee of the body corporate. The fourth respondent is A Dlomo (‘Dlomo’)
referred to as the current trustee of the body corporate. The fifth respondent is
Pretor Group ( Pty) Ltd (‘Pretor’), a managing agent of the body corporate
(‘Pretor’). Together they are referred to as respondents.
[7] In this judgment, reference to the status and positions held by Khabeng, the Body
of members, Labuschagne, Smith, Yusuf and Dlomo, respectively, flow from their
respective affidavits. This court is not called upon to pronounce on the legitimacy
of their status, and appointment to such positions. Such will be a call for the court
hearing Part B or any other related litigation.
Background
[8] In deciding the issue s in this application, it is prudent to set out the relevant
chronological sequence of events.
[9] The body corporate consists of 64 units. On 23 January 2026, the body corporate
held an Annual General Meeting (‘ AGM’). The Body of members, through one
Lesiba Mokete Malebana (‘Malebana’), delivered a written request to Pretor to
convene an SGM on 23 January. Acknowledging receipt thereof, Pretor informed
them that they would await the trustees’ feedback.
[10] On 20 February 2026, through their attorneys, the applicants dispatched
correspondence attaching supporting documentation to Pretor concerning the
SGM request process.
[11] On 23 February, the trustees and or Pretor were advised that the 14-day period
for them to consider their request for the SGM had expired on 6 February, and
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that the process had moved into the owners -convened stage under Regulation
17(4) of the Sectional Titles Schemes Management Act (‘the Act’).1
[12] On 25 February, the applicants’ attorneys dispatched correspondence to Pretor
for them to circulate the SGM notice and, inform Pretor that the AGM scheduled
for 4 March would be unlawful. Seeing that the SGM notice was not circulated ,
the Body of owners circulated same directly to the owners.
[13] Following the SGM on 19 March, the applicants sought recognition from Pretor.
On 25 March, they proposed the postponement or stand down of the proposed
AGM of 2 April in order to properly ventilate the dispute in court. The applicants’
attorneys requested Pretor for minutes reflecting a number of people in favour of
pursuing litigation proceedings.
[14] On 30 March , the applicants demanded that the respondents not proceed with
the AGM on 2 April , otherwise they would interdict same. Pretor informed them
the SGM was not recognised and confirmed the AGM would proceed.
Issue
[15] The issue to be determined is whether the order granted ex parte on 2 April 2026
ought to have been granted in the absence of the respondents, and whether the
reconsideration should result in its setting aside. Further, whether preliminary
issues raised by the respondents, which include locus standi and authority, non-
compliance with section 9 of the Act, abuse of court process, and misjoinder or
non-joinder of the body corporate, ought to be upheld.
Assertions
[16] The applicants, through their counsel, argued that the urgency pleaded by the
respondents wa s self -created. There is no merit in the reconsideration of the
application, for whatever issues the respondents have with the order, would be
1 Act No. 8 of 2011.
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dealt with in the hearing of Part B of the application. Alternatively, the prejudice
relied on is based on broad institutional discomfort or uncertainty; and generality,
lacking particularity, regarding “governance paralysis”, “uncertainty”, inability to
pay creditors and service providers, maintenance difficulties, levy collection,
budgeting and financial administration.
[17] Conversely, on behalf of the respondents, it was argued that the application that
brought about the 2 April order was not urgent as it was self-created urgency, in
that the applicants were informed that their request for the SGM was non -
compliant with the provisions of the Act. Further in their application they did not
disclose all the relevant facts, including the disputes concerning the validity of
the SGM, the prior correspondence rejecting its legality, and non-compliance
with Regulation 17(4) of the Act.
[18] The respondents raised several points in limine that the applicants were abusing
the court process as they lacked locus standi and authority to bring the
application. The applicants did not comply with section 9 of the Act, and the body
corporate was not joined as a party.
The Law
[19] Rule 6(12)(c) of the Uniform Rules of Court provides that a person against whom
an order was granted in such person’s absence in an urgent application may by
notice set down the matter for reconsideration of the order.
[20] In terms of the Act, the following are defined as follows:
‘Body corporate’, in relation to a building and the land in a sectional title scheme,
means the body corporate of that building referred to in section 2(1)2;
‘owner’, in relation to a unit or a section or an undivided share in the common
property forming part of such unit, means, subject to subsection (5), the person
in whose name the unit is registered at a deeds registry in terms of the Sectional
2 2. (1)With effect from the date on which any person other than the developer becomes an owner of a
unit in a scheme, there shall be deemed to be established for that scheme a body corporate of which
the developer and such person are members, and any person who thereafter becomes an owner of a
unit in that scheme is a member of that body corporate.
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Titles Act or in whom ownership is vested by statute, including the trustee in an
insolvent estate, the liquidator of a company or close corporation which is an
owner …
[21] Section 2(1) provides: With effect from the date on which any person other than
the developer becomes an owner of a unit in a scheme, there shall be deemed
to be established for that scheme a body corporate of which the developer and
such person are members, and any person who thereafter becomes an owner of
a unit in that scheme is a member of that body corporate.
[22] Section 9 of the Act reads:
(1) An owner may initiate proceedings on behalf of the body corporate in the
manner prescribed in this section—
(a) when such owner is of the opinion that he or she and the body
corporate have suffered damages or loss or have been deprived of any
benefit in respect of a matter mentioned in section 2(7), and the body
corporate has not instituted proceedings for the recovery of such
damages, loss or benefit; or
(b) when the body corporate does not take steps against an owner who
does not comply with the rules.
(2) (a) Any such owner must serve a written notice on the body corporate calling
on the body corporate to institute such proceedings within one month from the
date of service of the notice and stating that if the body corporate fails to do so,
an application to the Court under paragraph (b) will be made.
(b) If the body corporate fails to institute the proceedings within the period
referred to in paragraph (a), the owner may make application to the Court for
an order appointing a curator ad litem for the body corporate for the purpose of
instituting and conducting proceedings on behalf of the body corporate.
Discussion
[23] Rule 6 (12) of the Uniform Rules requires applicants, in all affidavits filed in
support of urgent applications, to set out the circumstances that render the matter
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urgent and why they cannot be afforded substantial redress at a hearing in due
course.
[24] When a matter is brought to court on an urgent basis, the question to be
answered is whether or not the applicant will be afforded substantial redress in
due course.3 In the event that the applicant does not succeed to convince the
court that he will not be afforded substantial redress at a hearing in due course,
the matter will be struck from the roll. 4 The matter may also be struck from the
urgent roll where the court finds that urgency was self-created.
[25] The threshold to establish the juristic fact of "absence of substantive redress" is
lower than that of "irreparable harm" for the purposes of establishing an interim
interdict.5
[26] The applicant must explicitly set forth the circumstances that render the matter
urgent and the absence of substantial redress if not heard as a matter of urgency.
This is not the equivalent of irreparable harm. Delay will not automatically result
in the matter not being considered urgent.6
[27] Regarding the fact that the main application was brought ex parte. It became
common cause that notwithstanding that it was brought ex parte on extremely
urgent basis on 2 April, the applicants complied with the court directive that the
application be served on the respondents. The respondents were served by
email with the papers at 12H57 on the day of the hearing , for the hearing at
14h00. An email was sent at 15h01, informing the respondents that they were
afforded an opportunity until 15h00 to read and consider the papers served at
12h57 on them. The court heard the application and granted the 2 April order.
[28] In my view , in issuing the directive regarding service of the application on the
respondents the court hearing the main application was alive to the guidance
3 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767)
[2011] ZAGPJHC 196 (23 September 2011).
[2011] ZAGPJHC 196 (23 September 2011).
4 SARS v Hawker Air Services (Pty) Ltd 2006 (4) SA 292 (SCA).
5 Several matters on the urgent court roll 2013 (1) SA 549 (GSJ).
6 (Molosi and Others v Phahlo Royal Family and Others [2022] 3 All SA 160 (ECM).
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provided in dealing with urgent matters with regard to the principle of audi alteram
rule.
[29] Considering the fact that the email informing the respondents that the matter had
been stood down till 15h00 for them to consider the papers and decide whether
they would oppose or not, was dispatched after 15h00. For that reason, this court
is justified in considering the reconsideration application urgent. This is
notwithstanding that the respondents only filed their notice of intention to oppose
and brought the reconsideration application on 9 April, which was the third day
after the 2 April order, given the holidays between 3 April and 6 April.
[30] The respondents contended that the 2 April order was granted without disclosure
of the full factual matrix, for instance the dispute regarding the validity of the
SGM, the prior correspondence rejecting its legality, and the absence of
compliance with Regulation 17(4). In the replying affidavit, Khabeng confirmed
that on 5 March, Pretor informed them that the documentation regarding the SGM
on its face did not comply with Regulation 17(4), in that the list of supporting
members did not contain identifi able signatures and did not constitute properly
signed requisition.
[31] It is noted that prior the main application the correspondence, including the letters
dated 5 March and 25 March exchanged between the parties, including the legal
representatives annexed to the founding affidavit, read holistically, explicitly
make clear the dispute regarding the SGM and AGM, and the related issues. The
applicant must fully set out facts in their affidavit and not rely on attached
documentation. However, in my reading of the papers together with the
annexures, that served before the court that heard the main application, I cannot
find that the relevant material facts were not disclosed.
[32] A reconsideration application is not an appeal in disguise, nor does it
automatically entitle the respondents to final declaratory relief on disputed merits.
automatically entitle the respondents to final declaratory relief on disputed merits.
The court has to determine, on the full record now before it, whether or not the
interim order should stand, be refined, or be discharged.
[33] The points in limine raised by the respondents are at the heart of Part B of the
main application. According to the main application, it is the court hearing Part B
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that may declare whether the SGM held on 19 March 2026 was lawfully
convened, and that all resolutions adopted at the said SGM are valid and binding.
Further, that the trustees elected at the said SGM, are lawful trustees . T he
respondents are to recognise them as such and give effect to the resolutions
adopted at the SGM. Also, that any meeting purportedly convened as an AGM
on or about 2 April 2026 is declared unlawful, invalid, and of no force or effect.
[34] The respondents, through their counsel, implored the court to reconsider the
application as the continued o peration of the 2 April order has created an
untenable and unsustainable state of legal uncertainty regarding the governance
and administration of the body corporate. They further submitted that, in the
absence of clarity as to the lawful trusteeship and governance structure, the body
corporate is effectively paralysed in the day -to-day execution of its statutory
functions.
[35] Notwithstanding the fact that the 2 April order made no provision for a return
date, the main application and the order are specific, relating to the seating of
the AGM and consequences thereof. The interim order does not c ause an
injustice to the respondents nor to the body corporate . To the extent that
paragraph 3.4 of the 2 April order are clear that the status quo as at 19 March
2026 was preserved. Further, paragraph 4 stated that the operation of the order
was interim pending the determination of issues under Part B.
[36] In my view, should this court make a determination regarding the locus standi
and authority exercised by the applicants in bringing the main application, as well
as the other points in limine, it will be pronouncing on matters to be ventilated
under Part B, which is not the purpose of reconsideration. The status of the SGM
and its resolutions, and any other ancillary matters regarding the SGM and the
process followed leading to its seating are matters highly contested. Their
process followed leading to its seating are matters highly contested. Their
determination is dispositive of the entire matter, and the declaratory relief thereof
will be final in nature.
[37] The applicants obtained the interim order in the urgent court in the absence of
the respondents. The grounds upon which they based their application are
already set out and will not be repeated. I have considered the evidence adduced
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on paper on 2 April , and the papers filed pertaining to the reconsidera tion
application, including the issue of urgency . The order was interdictory in nature
and prevented the AGM from convening. I could find no facts or evidence that
suggest that the said order ought not to have been granted.
[38] It is noteworthy that b oth the applicants and the first to fourth respondents are
members of the body corporate consisting of 64 units . Nothing impedes them ,
through the assistance and direction of the fifth respondent, the managing agent,
from convening and ventilat ing the issues pending the hearing of Part B of the
main application. All of them had impliedly claimed to be acting in the interests
of the owners of the units in the Oval Gardens . I hold a respectful view that t he
reconsideration, if uphe ld, will bring an end to the matter. It follows that the
reconsideration application must not succeed, and the order granted on 2 April
ought not to be set aside.
[39] Concerning costs, the respondents were partially successful in respect of
urgency. Nothing precludes the court from awarding the costs in favour of the
applicants as the successful party in the substantial part of the application.
[40] Consequently, I make the following order.
Order:
a) The respondents’ urgent reconsideration application is hereby enrolled as
urgent.
b) The reconsideration application is dismissed with costs, including that of
counsel, on scale B, the one paying the others to be absolved.
_______ _____
N G M MAZIBUKO
JUDGE OF THE HIGH COURT
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Heard on: 17 April 2026
Judgment delivered on: 28 April 2026
For the applicants: Mr K Choeu
Instructed by: Abrams Madira Inc
For the respondents: Mr I Du Pisane
Instructed by: Schoeman, Esterhuizen & Gamberini Inc