REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
18 May 2026 ~-
DATE ~
BRIGHTWARD HOMEOWNERS ASSOCIATION
and
VELI KHOSA
LEKULA SYDWELL MOFOKENG
DUMISANI PASCALL ZUMA
WANDILE MAZULA
TUMI SMITH
BRICKHILL AJ:
JUDGMENT
Case Number: 025365/2024
Applicant for leave
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Introduction
[1] This is an application for leave to appeal against part of the judgment and order
handed down on 4 September 2025. 1 The application is brought by the original
applicant and the parties therefore remain as designated in the main application.
The application was heard virtually . The parties provided written heads of
argument that were of substantial assistance.
[2] In the main application, each of the parties enjoyed substantial yet partial
success.
a. The applicant (“the Homeowners Association”) secured declaratory relief
permitting virtual members’ meetings, but subject to the important proviso
requiring effective participation under the Companies Act 71 of 2008
(“Companies Act”) and subject to the right of members to object to virtual
meetings under the Memorandum of Incorporation (“MOI”). The order
confirmed that the eAGM platform is one permissible option.
b. The Homeowners Association further secured an order declaring the in-
person purported AGM held at the Estate Clubhouse on 20 February 2024
by the respondents (“the respondent homeowners”) was unlawful, although
the directors were under an obligation to convene it in response to the
members’ requisition. As a result, the Homeowners Association also
succeeded in establishing that the previously determined levies remain
valid.
c. The respondent homeowners, though unsuccessful in asserting that virtual
meetings are entirely impermissible, established the important proviso and
qualification to the power to call virtual meetings. They established that their
objection to the virtual purported AGM was lawful and effective, rendering
the meeting unlawful and resolutions taken at it invalid. Finally, the court
granted an order arising from these conclusions requiring the Homeowners
Association to reconvene the AGM and to do so in person, i n light of the
1 Brightward Homeowners Association v Khosa and Others [2025] ZAGPJHC 903.
valid objection and the fact that effective participation was not secured
previously.
d. Despite plausible concerns regarding the Developer’s veto power and how
it has been deployed by the Developer, I determined that the failure to join
the Developer precluded a determination that this power constitutes
oppressive conduct under the Companies Act.
e. I made no order as to costs in the main application, in light of the partial
success of both sets of parties.
[3] The application for leave to appeal is directed only at paragraphs 2.2 of the order
and the consequential relief granted in paragraphs 3, 4, 5 and 9 of the order. The
order in paragraph 2 read:
“2. It is declared that it is lawful for the Applicant to hold meetings
of members by way of electronic communication on a virtual
platform, including using the online voting platform eAGM,
provided that:
2.1 the electronic communication employed ordinarily
enables all persons participating in that meeting to
communicate concurrently with each other without an
intermediary, and to participate reasonably effectively in
the meeting; and
2.2 subject to the right of members to object to the meeting
taking place virtually in terms of clause 2.21.1.1 of the
Applicant’s Memorandum of Incorporation.”
[4] The Homeowners Association embraces the order granted in their favour in the
first part of paragraph 2, declaring that it may hold meetings by way of electronic
communication, and accepts the first proviso in paragraph 2.1 – which requires
such virtual meetings to satisfy the statutory standards in section 63 of the
Companies Act. However, it disputes the second proviso in paragraph 2.2 of the
order, which gives members the right to object to meetings taking place virtually
in terms of clause 2.21.1.1 of the MOI.
[5] The remainder of the application for leave to appeal flows from the order in
paragraph 2.2, including the consequent orders: in paragraph 3 declaring that
the members had lawfully objected to the AGM taking place on a virtual platform
in terms of clause 2.21.1.1, paragraph 4 declaring the AGM of 20 February 2024
unlawful in light of the objection, paragraph 5 setting aside resolutions and
decisions made at that meeting, and paragraph 9 directing the applicant to
reconvene the AGM in person. These are the orders against which leave to
appeal is sought. There was no application for leave to appeal in respect of the
remainder of the order, and no application for leave to cross-appeal by the
respondent homeowners. I made no order as to costs in the main application
given the mixed result, and that order is also not sought to be challenged.
[6] For the applicant, Mr Porteous identified as the crisp issue in the application for
leave to appeal the interpretation of paragraph 2.21.1 .1 of the Memorandum of
Incorporation (“MOI”), which provides that:
“If 10 (ten) percent of members to whom the notice convening the
meeting is sent, in writing object to the address at which the meeting
is to be held at least 7 (seven) days before the meeting, the Directors
shall have no alternative but to re-schedule the meeting to take place
at an address within the magisterial district in which the scheme is
situated.”
[7] The applicant argues that clause 2.21.1.1, in using the words “object to the
address at which the meeting is to be held”, is concerned only with the physical
location of an in-person meeting and that the court erred in holding that it applies
to virtual meetings.
[8] Before dealing with the merits, I must comment on a preliminary issue of delay.
The judgment in the main application was handed down on 4 September 2025,
but the application for leave to appeal was only set down for hearing on 7 April
2026. I raised with counsel for both sets of parties my concerns regarding the
2026. I raised with counsel for both sets of parties my concerns regarding the
delay in setting down the application for leave to appeal. Neither Mr Porteous nor
Mr Mokoena was able to fully explain why it took over six months to set down the
application for leave to appeal, though it appeared to be primarily due to
constraints in the availability of the respondent homeowners’ counsel in the
intervening period. In late October 2025, in correspondence that has been placed
before the court, the respondents informed the applicant that their senior
counsel’s first available dates for hearing the application for leave to appeal
would be 7 April 2026.
[9] The delay is regrettable. An application for leave to appeal should be heard as
soon as possible after judgment is handed down. Had the difficulties been
brought to my attention, the court would have ensured that the application be
heard and decided more expeditiously, if necessary by hearing the application
outside court hours or by deciding it on the papers. In any event, notwithstanding
some tentative submissions on possible mootness, the delay has no bearing on
the merits of the application for leave to appeal.
Test for leave to appeal
[10] The test for leave to appeal is governed by section 17 of the Superior Courts Act
10 of 2013. The Homeowners Association seeks leave on the basis that the
appeal would have a reasonable prospect of success in section 17(1)(a)(i), which
provides:
“leave to appeal may only be given where the judge or judges
concerned are of the opinion that the appeal would have a reasonable
prospect of success.”
[11] In the language of section 17, the court “may only” grant leave if of the opinion
that the appeal “would” have a reasonable prospect of success.2 The introduction
of these features in the Superior Courts Act raised the question whether section
17(1)(a)(i) entails a stricter test than previously applied under the Supreme Court
Act 59 of 1959.
2 See Van Loggerenberg Erasmus: Superior Court Practice RS 5, 2025, D-103 to D-105 and the cases
cited at fn 8.
[12] The authorities, including in this division, have split on whether the introduction
of ‘would’ in the reframed test has raised the bar,3 or left it unchanged.4
[13] The history of the test for leave to appeal since 1909 is usefully traced by Meiring
AJ in Smartpurse, before reaching the conclusion – appropriately informed by
this historical analysis – that the test is unchanged under section 17 of the
Superior Courts Act. In relation to the change in language, Meiring AJ held:
[56] With respect, in my view, this analysis is premised on a
misunderstanding of the respective semantic and syntactic roles of
“might” and “would”. What the applicant for leave must show is that
there is or would be a reasonable prospect of success on appeal.
This might well colloquially be couched as the standard that the
appeal might reasonably succeed. Yet, the rather different notion that
there might be a prospect of success is an inscrutable one. To the
extent that it has any meaning, it posits a standard so low that it could
never be the measure for leave. It certainly was not the standard
before the promulgation of the Superior Courts Act.
[57] Put differently, “a likelihood that another tribunal will ” is broadly
synonymous with “that another tribunal might”.
[14] Ultimately, Meiring AJ in Smartpurse reached the following conclusions on the
test under section 17(1)(a)(i):
[63] From the above examination of the historical development of the
decisions on leave to appeal, it would appear that, from the early
period under the South Africa Act, 1909, to the present, the test for
leave to appeal has gone unchanged. The debate over the
heightening of the threshold in the wake of the promulgation of
the Superior Courts Act rests upon a misunderstanding of the context
of the use, in the cases and latterly in that statute, of the modal verbs
“might” and “would”.
[64] Indeed, without undertaking a survey of the travaux
preparatoire of the 2013 Act, it seems inescapable that the legislature
preparatoire of the 2013 Act, it seems inescapable that the legislature
sought simply to enact the very test that already applied at common
3 The Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC) para 6; Pule Inc and Others v Revfin
(Pty) Ltd (2022/024265) [2026] ZAGPJHC 42.
4 Smartpurse Solutions (Pty) Ltd v Firstrand Bank Ltd [2024] ZAGPJHC 961; [2025] 1 All SA 552 (GJ).
law. In sum, the test is – and appears always to have been – whether
there is or will be a reasonable prospect of success on appeal, or, in
other words, that another court might reasonably find differently.
[65] The Superior Courts Act did not bring with it a new test for leave
to appeal.
[66] What the applicant must demonstrate is that there is a
“reasonable prospect of success”. The notion of success is qualified
by the words “reasonable prospects of ”. Something has “reasonable
prospects” where, as the Supreme Court of Appeal has held, “ [a]
sound rational basis for the conclusion that there are prospects of
success … exist”.
5
[67] Considered in the round, to establish a “ reasonable prospect of
success” on appeal, the applicant must demonstrate that there exists
some sound, cognisable reason why an appeal court would find
differently to the court of first instance. In other words, there must be
a reasonable possibility, not a certainty, of success on appeal. This
possibility must exist (it must not be hopeless) and must be
reasonable (based on logic).”
[15] I find the reasoning in Smartpurse persuasive and, if free to decide the issue,
would follow it.
[16] However, after initially leaving open the question whether the test had been
changed in Ramakatsa,6 the Supreme Court of Appeal in MV ‘Tai harmony’ has
concluded that the test has been made stricter under section 17, going so far as
to describe it as “trite” that section 17(1)(a)(i) has “raised the threshold for
granting leave to appeal”.7
5 Original footnote refers to Ramakatsa v African National Congress [2021] ZASCA 31 para 10.
6 Ramakatsa and Others v African National Congress and Another [2021] ZASCA 31 para 10.
7 MV "Tai harmony" and Another v Sure Success Steamship S.A and Another [2026] ZASCA 60 para
56.
[17] In MV ‘Tai harmony’, Mbatha JA, for a unanimous court, framed the test as now
requiring that “[t]here must therefore exist more than just a mere possibility that
another court will, not might, find differently on both facts and law.”8
[18] For my part, I agree with Meiring AJ that the test is, and has always been,
whether there is or will be a reasonable prospect of success on appeal, or, in
other words, that another court might reasonably find differently. Whether this is
framed as a prospect that another court ‘will’, ‘would’ or ‘might’ find differently
does not change the inquiry, in my view.
[19] However, to the extent that the Supreme Court of Appeal has held that the test
requires a higher degree of likelihood that another court will find differently, I am
bound to follow it and expressly do so in this judgment. In any event, it makes no
difference to the outcome of this application, which would be unchanged on the
‘old’ approach to prospects of success.
[20] I agree with Mr Porteous for the Homeowners Association that the Supreme
Court of Appeal decision in Ramakatsa, as also approved by Meiring AJ in
Smartpurse, provides a useful formulation of the test for practical purposes,
namely that:
“Those prospects of success must not be remote, but there must exist
a reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to
exist.”9
[21] I accordingly apply the test as set out in section 17(1)(a)(i) of the Superior Courts
Act and interpreted in Ramakatsa, but conscious of the Supreme Court decision
in MV ‘Tai harmony’, by which I am bound, that this must be understood to entail
a stricter test than previously existed and accordingly a higher degree of
likelihood that another court will, not might, find differently.
8 Ibid.
9 Ramakatsa and Others v African National Congress and Another [2021] ZASCA 31 para 10.
The central issue
[22] The application for leave to appeal therefore turns on whether is a reasonable
prosect that another court would come to a different conclusion on the
interpretation of clause 2.21.1.1 – that is, the conclusion that members’ right to
object under the clause applies only to in-person meetings and not to meetings
on a virtual platform.
[23] The Homeowners Association argues that, on a plain reading of clause 2.21.1.1
of the MOI, it only applies where the directors have given notice of intention to
hold a members meeting at a physical location outside the magisterial district in
which the scheme is located and that it has no application to virtual meetings.
[24] The Homeowners Association contends that the court erred in finding that if the
MOI
“is to be read with section 63(2) of the Companies Act to permit virtual
meetings, that interpretive approach must be applied consistently to
all the relevant provisions of the MOI [and that] the MOI cannot be
read in a technology-accommodating way in relation to the holding of
members meetings, but in a literal way in relation to objections”.
10
[25] It was this particular finding, the Homeowners Association contends, that laid the
basis for the conclusion that the objection provision in clause 2.21.1.1 must be
interpreted to apply both to in-person and virtual meetings.
[26] The Homeowners Association enjoined the court to apply the leading decision
on the general approach to interpretation in Natal Joint Pension Fund v
Endumeni Municipality, where Wallis JA held:
“Interpretation is the process of attributing meaning to the words used
in a document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming into
existence. Whatever the nature of the document, consideration must
existence. Whatever the nature of the document, consideration must
be given to the language used in the light of the ordinary rules of
10 Main judgment para 25.
grammar and syntax; the context in which the provision appears; the
apparent purpose to which it is directed and the material known to
those responsible for its production. Where more than one meaning
is possible each possibility must be weighed in the light of all these
factors. The process is objective not subjective. A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against, the temptation to substitute what
they regard as reasonable, sensible or businesslike for the words
actually used. To do so in regard to a statute or statutory instrument
is to cross the divide between interpretation and legislation. In a
contractual context it is to make a contract for the parties other than
the one they in fact made. The ‘inevitable point of departure is the
language of the provision itself’, read in context and having regard to
the purpose of the provision and the background to the preparation
and production of the document.”11
[27] I agree that Endumeni helpfully captures the interpretive approach required,
taking into account in particular the language, the context and the purpose of the
MOI.
[28] In answer to a question from the court during hearing of the application for leave
to appeal, the applicant submitted that the right to hold virtual members’ meetings
arises exclusively from section 63(2) of the Companies Act.
[29] However, this was not the applicant’s pleaded case. The applicant’s case, as
originally pleaded and argued, invoked both the provisions of the MOI and
section 63(2) of the Companies Act as the basis of the power of the directors to
call and conduct virtual members’ meetings. It adopted an approach to the MOI
in which the provisions relating to the holding of meetings must be interpreted as
applying to virtual meetings.
11 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) para 18.
a. The applicant stated that that the directors are “of the view that virtual
meetings accorded with the requirements of both the MOI and the
Companies Act” (emphasis added).12
b. When dealing with the adjournment of several AGMs that were being held
virtually for lack of quorum, the applicant stated that it adjourned the
meetings to be held again on a virtual platform in terms of clause 2.16.1.3
of the MOI, which provides inter alia for an adjourned general meeting to
be held “at the same time and place”. 13 The ‘same place’ was accordingly
the same virtual platform.
c. When dealing with online voting, the applicant invoked clause 2.17.5 of the
MOI, which provides for voting by show of hands unless a poll is demanded,
to argue that the respondents were incorrect to insist that voting must be
conducted initially by a show of hands.
14 In other words, in seeking relief
permitting online voting, the applicant invoked the provision of the MOI
relating to voting, read with section 63(2) of the Companies Act.
d. In its heads of argument in the main application, the applicant argued that
clause 2.12 of the MOI “places the convening of general meetings of the
Applicant squarely in the hands of its directors” and relied on clause 2.12.3
which provides that such meetings are to be held “at such time and place
as the Directors shall determine”.
15 The applicant then quoted the
provisions of section 63(2) of the Companies Act, which permit virtual
meetings unless prohibited by a company’s MOI, before arguing:
“The MOI, which was adopted before COVID, makes no
provision for the holding of members meetings of the Applicant
virtually. It does not, however, prohibit the holding of members
meetings virtually and nor does it limit the power and discretion
12 Applicant’s Answering Affidavit in Respondents’ Counter-Application p 081-20 para 54.
13 F ounding Affidavit p 02- 33 para 90 (regarding the 2021 AGM); Founding Affidavit 02-33 para 92
(regarding the 2022 AGM); Founding Affidavit 02-10 para 30 (regarding the 2023 AGM).
14 Applicant’s Answering Affidavit in Respondents’ Counter-Application p 081-24 para 68.
15 Applicant’s heads of argument in main application p 088-17 paras 34-35.
of the directors to hold members meetings at such time and
place as they may determine.”16 (emphasis added)
e. Accordingly, the applicant’s interpretation of ‘place’ in clause 2.12.3 of the
MOI included its preferred virtual platform.
[30] Accordingly, the Homeowners’ Association pleaded case in the papers and the
case that it advanced in argument in the main application sourced the directors’
power to hold members meetings on a virtual platform in both the MOI and
section 63(2) of the Companies Act. The Applicant’s approach was to read the
provisions of the MOI relating to giving notice, adjournments and voting to apply
to virtual meetings. The applicant’s approach was therefore that “place” in clause
2.12.3 of the MOI includes a virtual platform and that a “poll” in terms of clause
2.17.5 includes a poll conducted on a virtual platform.
[31] In the main judgment, I concluded that the Homeowners Association was correct
in its approach to the MOI and the Companies Act; that the MOI must be
interpreted with section 63(2) to permit virtual meetings and its provisions relating
to members meetings must all be interpreted accordingly.
[32] The applicant’s new approach at the leave to appeal stage is that the power to
hold virtual meetings arises only from the Companies Act, severed from the MOI.
This argument is advanced to enable the applicant to embrace its success in the
main judgment regarding the right to hold virtual members’ meetings, while still
challenging the conclusion that clause 2.21.1.1 relating to members’ objections
applies to virtual meetings.
[33] However, the new argument is both inconsistent with the applicant’s pleaded
case, as noted above, and legally untenable on the language, context and
purpose of the provision.
[34] The applicant argues that the word “address” in clause 2.21.1.1 of the MOI
dealing with objections to meetings refers only to a physical address.
16 Applicant’s heads of argument in main application p 088-18 para 38.
[35] Clause 2.21 of the MOI, which deals with giving notice of members meetings in
the first place, also uses the same word, “address”.
“[m]embers’ meetings shall be held within the magisterial district in
which the HOA is situated unless it is determined otherwise by the
Directors and notice of the address at which the meeting is to be held,
which address falls outside the magisterial district in which the
scheme is situated, is clearly stipulated in the notice calling the
meeting”.
[36] The applicant gave notice of the ill-fated virtual AGM under clause 2.21, including
stating that the meeting would be held virtually.
[37] On the applicant’s argument, “place” in clause 2.12.3 and “address” in clause
2.21 of the MOI, both relating to holding members’ meetings, must be applied to
meetings that the directors decide to hold on a virtual meeting; but the same word
“address” in the objection provision of clause 2.21.1.1 of the MOI must be read
literally to refer to a physical location.
[38] Section 5(1) of the Companies Act requires that courts interpret and apply the
Act to give effect to the purposes set out in section 7. In terms of section 7(i), one
of the purposes of the Companies Act is to “balance the rights and obligations of
shareholders and directors within companies”. In light of this statutory
interpretive injunction, a court is required to prefer an interpretation that balances
the rights of shareholders and directors over an interpretation that does not ,
including in interpreting and applying section 63(2) alongside the relevant
provisions of the MOI, in particular clause 2.21.1.1.
[39] An approach that interprets and applies all the other relevant provisions of the
MOI relating to calling and holding members’ meetings so as to apply to virtual
meetings, but restricts clause 2.21.1.1 and the right of members to object to in-
person meetings not fails to promote a balance between the rights of
shareholders and directors. It does the opposite, creating an unjustifiable
shareholders and directors. It does the opposite, creating an unjustifiable
asymmetry.
[40] In the circumstances, the interpretation contended for by the Homeowners
Association:
a. requires virtually identical language in the MOI relating to “place” and
“address” to be interpreted to apply to both in-person and virtual meetings
when conferring powers on directors, but only to in-person meetings in
respect of members’ right to object to the “address” of a meeting;
b. is inconsistent with the approach originally pleaded and argued by the
Homeowners Association in the main application, which involved applying
provisions of the MOI relating to the calling and conduct of members’
meetings to apply equally to virtual meetings;
c. is at odds with the interpretive injunction imposed by the Companies Act to
seek to “balance the rights and obligations of shareholders and directors” ;
and
d. would lead, in the language of Endumeni, to ‘insensible and unbusinesslike
results’ and undermine the purpose of the MOI.
[41] I therefore find that there is no reasonable prospect that another court would
conclude that clause 2.21.1.1 is applicable only to in-person meetings.
Order
[42] I have concluded that the applicant is unable to establish that there is a
reasonable prospect that another court would find differently. Leave to appeal
must accordingly be refused, with costs to follow the result.
[43] The following order is granted:
1. The application for leave to appeal is dismissed.
2. The applicant is directed to pay the respondents’ costs on Scale A,
including the costs of two counsel.
___________________________
J BRICKHILL
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
This judgment is handed down electronically by circulation to the parties or their legal
representatives by email, by uploading it to the electronic file of this matter on Caselines, and
by publication of the judgment to the South African Legal Information Institute. The date for
hand-down is deemed to be 18 May 2026.
DATE OF HEARING: 7 April 2026
JUDGMENT SUBMITTED FOR DELIVERY: 18 May 2026
APPEARANCES:
For the Applicant: Adv GF Porteous,
instructed by Tonkin Clacey Inc.
For the Respondent: Adv P Mokoena SC, Adv S Msimanga and Adv N Kgaka,
instructed by Msikinya Attorneys & Associates.