REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
REPORTABLE : (1)
(2)
(3)
OF INTEREST TO OTHER JUDGES: A.) c,
REVISE0 : v--
CASE NO.: 2024/1 44047
1 -r I s- (2> x.. DATE\
In the matter between:
EAST OF EDEN TRADING 760 CC tla NGALA
LODGE
And
PRIDE OF AFRICA NATURE RESERVE (PTY) LTD
PRIDE OF AFRICA HOMEOWNERS ' ASSOCIATION
NPC
PRIDE OF AFRICA LANDOWNERS ' ASSOCIATION
NPC
And
Applicant
First Respondent
Second Respondent
Thi rd Respondent
Case number: 2024/148572
In the matter between:
EAST OF EDEN TRADING 760 CC t/a NGALA
LODGE
And
Applicant
PRIDE OF AFRICA NATURE RESERVE (PTY) LTD
PRIDE OF AFRICA HOMEOWNERS ' ASSOCIATION
NPC
PRIDE OF AFRICA LANDOWNERS ' ASSOCIATION
NPC
And
2
First Respondent
Second Respondent
Third Respondent
Case number: 2025/017354
In the matter between:
PRIDE OF AFRICA NATURE RESERVE (PTY) LTD
PRIDE OF AFRICA HOMEOWNERS' ASSOCIATION
NPC
And
EAST OF EDEN TRADING 760 CC t/a NGALA
LODGE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
JUDGMENT
VAN DER WESTHUIZEN, J
First Applicant
Second Applicant
First Respondent
Second Respondent
[1) Three applications were enrolled to be heard together. In two of the
matters the applicant and the respondents were the same. In the third
application, the first and second respondents in the aforementioned two
applications were the applicants and the respondents were the applicant
in the first two applications. The second respondent in the third
application was the City of Tshwane Metropolitan Municipality.
[2] I shall refer to in this judgment to the parties as Ngala Lodge, the
applicant in the first two applications, and the respondents therein
collectively as the Association.
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[3] The relief in the first application related to the restoration of access to
the applicant. In the second application, the relief related to an interim
interdict against the respondents to prohibit them from interfering with
the commercial lodge activities of the applicant as well as a spoliation
order against the respondents. In the third application, the relief sought
related to an interdict preventing the first respondent from operating a
commercial guest lodge on the premises together with ancillary relief.
[4] In the third application, the first respondent, Ngala Lodge, brought a
counter application prohibiting the first applicant from operating a
commercial lodge on premises known as Die Skoen and ancillary relief.
After the first respondent in the third matter filed its answering affidavit
and counter application, the applicants sought an amendment to their
notice of motion and filed a supplementary affidavit. The first respondent
did not oppose the amendment and alleged that the amendment was not
effected timeously and hence of no value and the relief sought thus
remained unchanged.
[5] The theme common to all the applications relates inter alia to the
Homeowner's Association's General Management and Specific
Management Rules (the rules).
[6] Although the matters were not consolidated, they were argued
simultaneous by the parties. The applications are in a sense interrelated.
This is a composite judgment in respect of all three applications due to
the common theme.
[7] The relevant properties concerned, are generally situated within the
Dinokeng Game Reserve or adjacent thereto. The properties were part
of a development that provided separate ownership of subdivided
portions of a particular development within the Dinokeng Game Reserve
and certain common areas. The properties share common rights in and
to access to the greater Dinokeng Game Reserve. A Homeowners'
Association was established to organise and manage the development
Association was established to organise and manage the development
and the exercising of the rights derived from such homeownership
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including the access to the Greater Dinokeng Game Reserve.
Membership of the Homeowners' Association resulted in such member
being bound by the rules of the Association. The relationship between a
Homeowners' Association and its members is contractual in nature. The
rules and restrictions are private rules entered into voluntary.1
[8] The Rules of the Association included inter alia restrictions to the type of
building that may be erected on each separate portion of the
development, and restrictions in respect of the material that may be
utilised. To extend beyond that which was permitted, required an
application to the board of the Association for written permission to do
so. This procedure led to the disputes raised in the applications.
[9] Ownership in the separate properties allowed for the operation of a
commercial lodge thereon. This too was the subject of restrictions. Non
compliance with the rules, and or restrictions, could result in a member
of the Association being suspended from exercising its rights, and in
particular that of access to the Greater Dinokeng Game Reserve.
[1 O] It was alleged that the applicant in two of the matters, who trades as
Ngala Lodge, flaunted its obligations to the Association and hence its
rights to operate as a guest lodge, and consequently access to the
Greater Dinokeng Game Reserve was suspended by the Association.
That suspension irked Nga la Lodge and the latter retaliated by launching
an urgent application for a Mandament van Spolie which was struck off
for want of urgency.
[11] Following that attempt, Ngala Lodge launched a second application and
the two were set down together. The respondents, the Association, inter
a/ia, launched the third application, which was, by arrangement with the
Deputy Judge President of this Division, set down to be heard together
1 Mount Edgecombe Country Club Estate Management Association I/RF NPC v Singh et al
2019(4) SA 471 (SCA)
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with the other two applications. In the third application Ngala Lodge filed
a counter application.
[12] Ngala Lodge contended that its suspension was an effective spoliation
action which warranted an application to court for an appropriate order
interdicting the Association from suspending the operation of a
commercial lodge and refusing access to the Greater Dinokeng Game
Reserve. It was contended on behalf of the Association, that in view of
the contractual relationship between Ngala Lodge and itself, the attempt
at obtaining an order restoring the status quo ante, was nothing more
than to resolve a contractual dispute. That procedure is not permitted
under the Mandament van Spolie. 2
[13] It was further contended on behalf of the Association that access to the
Greater Dinokeng Game Reserve is for the public in general, and not
exclusively to the members of the Association. As such, Ngala Lodge
was never in possession of the Greater Dinokeng Game Reserve as
alleged.3 Neither the first, not the second respondents, "deprived" Ngala
Lodge of its access to the Greater Dinokeng Game Reserve.
Furthermore, neither Ngala Lodge, nor its members and Mr Vermaak
and his family in their respective non-commercial or private capacities
have been deprived of access to the property and remained to have the
same rights and privileges prior to the suspension of the commercial
business. Granting such relief would not be effective, nor enforceable.4
[14] For all of the foregoing, the first application, i.e. of alleged spoliation,
cannot succeed and stands to be dismissed.
[15] The second application that was launched by the Ngala Lodge, was
similarly launched as a urgent application. In that application, Ngala
Lodge sought an interim order pending arbitration proceedings,
2 Telkom SA Ltd v Xsinet (Pty) Ltd 2003(5) SA 309 (SCA)
3 See in regard to "possession" for purposes of spoliation, De Beer v Zimbali Estate
Management Association (Pfy) Ltd 2007(3) SA 254 (NPD)
Management Association (Pfy) Ltd 2007(3) SA 254 (NPD)
4 Steytler N. 0. v Fitzgerald 1911 AD 295 at 346
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alternatively interdicting the respondents from interfering with Ngala
Lodge's business of operating a commercial guest house, pending a
return day. Included in the relief sought was a spoliation order to restore
Ngala Lodge's use and enjoyment of the game viewing in the Greater
Dinokeng Game Reserve. That application was similarly struck off for
want of urgency.
[16] It is to be gleaned from the relief sought that the basis for the spoliation
order was the same as that sought in the first application. Consequently,
that relief stands to be refused for the reasons recorded above.
(17] In the second application, Ngala Lodge sought that the status quo ante
that existed since 2019 be returned to. Ngala Lodge contended that
since 2019 it conducted business as a commercial lodge having
complied with all the requirements and have obtained all the required
approvals to do so. It was alleged that during 2024, the Association
sought compliance by Ngala Lodge with a resolution relating to an
agreement which Ngala Lodge alleged was one-sided, draconian and
oppressive. The said resolution effectively struck through previous
requirements relating to the conducting business of operating a
commercial lodge where there has been complete compliance with
those requirements for a substantial period of time. Ngala Lodge
contended that the vexed new resolution sought to retrospectively
impose further conditions in that regard. Those gave rise to disputes
which could apparently not be resolved and an ultimatum was issued to
Ngala Lodge that until the latter complied with all the imposed conditions,
it was not permitted to continue with its commercial business.
(18] One of the disputes related to the obtaining a certain consent use from
the Tshwane Municipality. Ngala Lodge contended that it had already
obtained such consent use, and that none of the other commercial
lodges had obtained such consent use from the municipality. It further
contended that it was not open to the Association to withdraw its
contended that it was not open to the Association to withdraw its
consent, on which the consent use was premised, at this stage.
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[19] The Association contended that Ngala Lodge had breached a number of
its obligations in terms of the Association rules. Those breaches required
sanctions to be imposed. The sanctions now imposed upon Ngala Lodge
emanated from it aforesaid breach of the rules. The Association further
contended that Ngala Lodge provided certain undertakings to comply
with its obligations, but failed to do so. That failure resulted in the
imposed suspension to conduct a commercial lodge.
[20] Despite Ngala Lodge's undertakings to comply with its obligations and
its failure to comply therewith, it contended that those issues were
subject to arbitration under the rules. It further contended that until such
arbitration proceedings were concluded, the Association could not
suspend its commercial activities. Hence the request for the relief sought
in the second application.
[21] Whether Ngala Lodge is entitled to the relief sought in the second
application, depends on whether a valid arbitration agreement existed
between the parties. It is trite that the Arbitration Act requires the
existence of a written arbitration agreement providing for the reference
to arbitration of an existing dispute, or any future dispute relating to a
matter specified in the agreement. It is not required that an arbitrator is
to be designated.
[22] It is gleaned from the correspondence that passed between the parties
that no agreement to arbitrate existed, or was entered into, between the
parties as required by the Arbitration Act. Furthermore, no such
agreement was alleged by Ngala Lodge in its founding papers.
[23] It follows that Ngala Lodge is not entitled to the interim relief as sought
pending an arbitration process. Should such relief be granted, it would
not be effective or enforceable.
[24] The applicant further sought in its notice of motion as alternative relief,
the issuing of a return date. That relief was apparently sought in terms
of the provisions of section 168 of the Companies Act. In that regard, the
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first respondent, Pride of Africa Nature Reserve (Pty) Ltd, is the owner
of the land upon which the development is situated. It does not enforce
the rules, which is the obligation of the Association, that was
incorporated, to manage the development scheme on behalf of the first
respondent. Consequently, no relief could be granted against the first
respondent that may relate to the provisions of section 168 of the
Companies Act.
[25) In view thereof that Ngala Lodge is a member of the Association, it is
obliged to adhere to the rules and is bound thereby. As recorded earlier,
the relationship between a Homeowners' Association and its members
is contractual in nature. Breaching of the rules permits sanctions to be
instituted.
[26) It follows that Ngala Lodge is not permitted to contend that the contract
entered into between it and the Association, constitutes unfair or
prejudicial conduct as provided in the provisions of section 168 of the
Companies Act. Further in this regard, Ngala Lodge is not a shareholder
nor a director of the Association and thus the provisions of section 168
of the Companies Act cannot be invoked against the Association.
[27) Consequently in this regard, the applicant is not entitled to relief under
section 168 of the Companies Act. The second application stands to be
refused.
[28) In the third application, the applicants (collectively referred to as the
Association for ease of reference) seek relief of interdictory nature, to
prohibit Ngala Lodge from operating a commercial lodge and/or other
tourism business from its property within the development scheme until
or unless Ngala Lodge has complied with its obligation under the rules.
[29) In its answering affidavit to the third application, Ngala Lodge contended
that in the notice of motion in this application, the applicant sought final
interdictory relief, which relief was not supported by any evidence to that
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effect. The applicant gave notice of an intention to amend the relief to
provide for interim relief, pending the institution of an action to be
instituted within a stipulated period. No opposition was filed to the
intended amendment. However, Ngala Lodge contended that in the
absence of the filing of the amended pages in respect of the intended
amendment, the amendment was not effected. The applicants
responded by filing a supplementary affidavit indicating that the
amendment had in fact been effected and that there was no disconnect
between the notice of motion and the evidence filed in support therefor
in the founding affidavit. It is apparent that the amendment to the notice
of motion of the third application was effected and that the application
was property before the court.
[30] Ngala Lodge filed, as part of its opposition to the third application, a
counter application seeking an order that the Tshwane Municipality be
directed to act in terms of its by-laws against the first applicant in respect
of the conducting of a commercial lodge on property elsewhere in the
greater Dikoneng Nature Game Reserve. It was contended on behalf of
Ngala Lodge that the first applicant had not obtained the requisite
permission from the Tshwane Municipality to conduct such commercial
business.
[31] The nature of the third application and the corresponding counter
application thereto is no more than a tit-for-tat. It reflects the clash of
personalities of the deponents to the respective affidavits.
[32] The applicant in the third application sought to hold Ngala Lodge to the
rules of the Association and compliance therewith by obtaining a
"restraining order" pending compliance with the rules under threat of an
action for a demolition order of certain structures. It is to be noted that
despite the launching of the third application earlier in 2025, no action
was instituted prior to the hearing of this application later in 2025. If the
was instituted prior to the hearing of this application later in 2025. If the
conduct of Ngala Lodge was so atrocious to warrant a demolition order,
it is not clear why that action was not instituted earlier. The ineluctable
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conclusion is that it was a mere threat to beat Ng ala Lodge in submission
in complying with the wishes of the applicant. It follows that the counter
application is similarly an attempt to force the applicant to rethink its
stance.
[33] Ngala lodge submitted proof of the consent use as granted by the
Tshwane Municipality to conduct the business of a commercial lodge. In
order to have obtained that consent, the requisite consent from the
applicants were obtained. Ngala Lodge contended that once the
required consent by the Association was obtained, and the consent use
was approved by the Tshwane Municipality, the Association could not
withdraw its approval. Those facts were known to the Association when
it launched the third application. Accordingly, the applicants have no
right to prevent Ngala Lodge from operating a commercial lodge on its
own property.
(34] It follows that the applicants have not shown a prima facie right to
interdict Ngala Lodge from conducting a commercial lodge. Ngala Lodge
holds a valid consent use to conduct a commercial lodge.
(35] Consequently, the third application stands to be dismissed.
(36] The counter application has no merit for what follows. Ngala Lodge
contended that the operation by the first applicant of the commercial
lodge, the Skoen, on property within the Greater Dinokeng Nature Game
Reserve, was contrary to the Tshwane Municipality by-laws, and as such
constituted a criminal offence. No consent use for such commercial use
was granted by the Tshwane Municipality.
[37] Furthermore, the enforcement of the by-laws lies within the prerogative
of the municipality. Particular procedures are provided in the by-laws in
respect of applications, the opposition thereto, and any objections or
complaints to the use of property other than those presc ribed. The High
Court has no jurisdiction to act as first instance upon matters that fall
within the municipality's jurisdiction in that regard.
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[38] From all the foregoing, the counter application stands to be dismissed.
[39] There remains the issue of costs. The applicants in the various
applications were unsuccessful. There is no reason why the costs should
not follow the result. The question of which scale, is posed. On behalf of
the Association it was contended that a punitive cost order be granted in
respect of the first and second applications, such cost orders to include
the cost of two counsel where so employed. In respect of the third
application, it was further contended that a punitive cost order also be
granted as well as in the counter application thereto. Ngala Lodge
employed a single counsel. It too sought a punitive cost order in all its
matters.
[40] In my view, punitive cost orders are not warranted .
I grant the following orders:
1. In application no. 144047/2024 the application is dismissed with
costs to be taxed on Scale C, such costs to include the costs of two
counsel where so employed ;
2. In application no. 148572/2024 the application is dismissed with
costs to be taxed on Scale C, such costs to include the costs of two
counsel where so employed ;
3. In application no. 017354/2025 the application is dismissed with
costs to be taxed on Scale C;
4. In the counter application under case no. 017354/2025, the counter
application is dismissed with costs to be taxed on Scale C, such costs
to include the costs consequent upon the employment of two counsel
where so employed.
On behalf of Applicant: J A Venter
Instructed by: Machobane Kriel Attorneys
On behalf of Respondent: M C Maritz SC
J H Groenewald
Instructed by: Prinsloo Bekker Attorneys
Date of hearing:
Date of Judgment:
18 November 2025
19 May 2026
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ESTHUIZEN
IGH COURT
PRETORIA