IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 2025-190634
In the matter between:
PANORAMA BODY CORPORATE Applicant
(SS41/0221)
and
MODERN ENTERPRISES IMPORTS & EXPORTS Respondent
(PTY) LTD (Reg No. 2016/075758/07)
Corum : MAPOMA, AJ
Date heard : 28 April 2026
Date of Judgment : 21 August 2026
Summary: Enforcement of adjudication order of the Community Schemes
Ombud Services adjudicator– whether the latter is an order of court executable
as such – section 56(2) of Community Schemes Ombud Services 9 of 2011 -
declaration of commercial property specially executed – requirement of Rule
46(1)(a)(ii) – application for stay of execution pending review – test applied –
requirements for interim relief pending review - prima facie right - irreparable
harm not met – order enforceable – commercial properties specially executable.
ORDER
1. The application succeeds.
2. The counter-application is dismissed.
3. The properties consisting of units in in the Panorama Flats and Central
Court, namely Section Numbers 1, 2, 3, 4, 5, 7, 8, 9, 12, 13, 14, 15, 16, 17,
29, 30, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 and 47
registered in the name of Modeen Enterprise Import and Export
Proprietary Limited Registration Number: 2016/075758/07, are declared
specially executable.
4. The respondent is liable to pay costs of this application, which cost shall
include counsel fees on scale B.
JUDGMENT
MAPOMA, AJ
Introduction
[1] This is an application in terms of rule 46(1)(a)(ii) of the Uniform Rules of
Court, for an order declaring the respondent’s sectional title commercial
properties in Panorama Sectional Title Scheme ( “the scheme”) specially
executable. The application is in pursuit of enforcement of the adjudicat ion
order that was granted by the C ommunity Schemes Ombud Services (“the
CSOS”) adjudicator, Ms Sabera Hoosian , on 26 August 2025 , under reference
number CSOS 7155/WC/24 , against the respondent , for payment of arrear
levies owing by the respondent to the applicant for the amount of
R3 510 202.37 (“the adjudication order”).
[2] The application is opposed by the respondent, contending that the
adjudication order is not a court order as contemplated in section 56 of the
Community Schemes Ombuds Services Act 9 of 2011 (“the SCOS Act”) for the
purposes of enforcement under rule 46(1)(a)(ii). The respondent also filed what
it calls a conditional counter-application, in which it seeks interim relief for the
stay of enforcement of the adjudication order pending the finalisation of the
review application of the adjudicator’s decision.
Background Facts
[3] The applicant is a duly incorporated body corporate , registered as such in
term of section 36 of the erstwhile Sectional Titles Act 95 of 1986, which was
superseded by the Sectional Titles Scheme Management Act 8 of 2011 (“the
STSMA)”.1 The applicant is the body corporate that governs a sectional title
scheme registered as Panorama Flats and Central Court (“the Scheme”).
[4] The respondent is a duly incorporated private company. It is the registered
owner of certain sections (properties)2 of the scheme, the total of which
constitute 32.4% of the total participation quota in the scheme. The respondent,
by virtue of its ownership of the units in th e scheme that is governed by the
applicant, is a member of the applicant in terms of section 2(1) of the STSMA.3
[5] On 17 May 2018 the respondent acquired the properties by auction for an
unincumbered amount of R3 850 000.00. On 31 August 2018, the units were
registered into the name of the respondent, resulting in the latter becoming the
registered owner of the sectional title properties in terms of Title Deed
1 Accordingly, the applicant is a juristic person as contemplated in section 2 of the Community Schemes
Ombuds Services Act 9 of 2011 (“the SCOS Act”)
2 The respondent owns Units 1,2,4,5 ,7,8,9,12,13,14,15,16,17,29,30,32 to 47 in the Panorama Flats and Central
Court (“the Scheme”)
3 Section 2 (1) of the STMA provides that “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.”
ST14514/2018. It is alleged that since February 2020, the respondent refuses to
pay the due levies to the applicant , claiming that it is entitled t o withhold
payment because the applicant failed to perform repairs for water damages and
do maintenance to its properties.
[6] On 13 June 2024, the respondent referred a dispute to the CSOS for dispute
resolution mechanism, claiming against the applicant , inter alia, repairs and
maintenance of its properties, for which the respondent claimed it made
payment of an amount R889 000 to the applicant , yet the maintenance services
were never carried out. This claim was opposed by the applicant.
[7] On 23 July 2024 , the applicant on the other hand, referred a dispute to the
CSOS, applying for its resolution in terms of section 38 CSOS Act . In the
dispute, the applicant sought relief in terms of section 39 (1)(e) and (f) of the
CSOS Act for payment by the respondent of the outstanding levies in the
amount of R2 821 614.16 owing at th at time; payment of rent by the
respondent’s tenants , and an order directing the respondent not to allow the
tenants to sleep in the units . Section 39(1) of the CSOS Act empowers the
applicant to apply for an order for the payment or re -payment of a contribution
or any other amount.
[8] On 6 September 2024 , the respondent’s claim was referred to a CSOS
adjudicator, and the parties were required to make submissions by 13 September
2024, which the parties did . On 16 September 2024 the adjudicator handed
down the adjudication order dismissing the respondent's claim. This is a
separate dispute from the dispute that resulted in the adjudication order that is
the subject of these proceedings.
[9] On 27 March 2025 , the High Court , upon application by the respondent,
reviewed and set aside the adjudication order dismissing the respondent's claim .
However, the Court did not remit the matter to the CSO S in terms of section
8(1) of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) for
reconsideration. The application was granted on an unopposed basis.
[10] On 26 August 2025 , the CSOS adjudicator in the applicant’s claim (Ms
Hoosain) granted the adjudication order in favour of the applicant in terms of
section 54 of the CSOS Act, against the respondent for payment of the
outstanding arrear levies in the amount of R3 510 202.37 within 30 days of
receipt of the adjudication order. The adjudication order also directed the
respondents not to allow its tenants to sleep in the units . Further, the
adjudication order notified the respond ent of its right to appeal to the High
Court within 30 days in terms of section 57 of the CSOC Act. This is the
adjudication order that is the subject matter of these proceedings.
[11] The respondent did not lodge an appeal to the High Court against the
adjudication order in terms of section 57 of the Act. Section 57(1) provides that
an applicant, the association or any affected person who is dissatisfied by an
adjudicator’s order, may appeal to the High Court, but only on a question of law.
In terms of section 57(2), such appeal must be lodged against an order within 30
days after the date of delivery of the order of the adjudicator. Further, the
respondent did not make payment of the amount ordered in compliance with the
adjudication order within the stipulated time.
[12] On 10 October 2025, t he applicant's attorneys addressed a letter to the
respondent’s attorneys demanding payment in compliance with the adjudicat ion
order. In the letter, the respondent’s attorneys were notified that in terms of the
CSOS Act, the adjudication order may be enforced as if it were a judgment of
the High Court, and that the attorneys were notified that should payment not be
made, further legal action would be taken without further notice to them or their
made, further legal action would be taken without further notice to them or their
client. Th e 10 October 2025 letter was met b y an email response dated 13
October 2025 from the respondent’s attorneys , who advised t hat they were
considering launching a review a pplication of the adjudicat ion order, which
according to them, would suspend payment of the amount claimed.
[13] On 7 October 2025, the applicant lodged the adjudication order with this
Court under the current case number 2025 -190634 and on 16 October 2025, the
Registrar duly registered it in terms of section 56 (2) of the CSOS Act as an
order of court. Section 56 (2) of the Act provides that if an adjudicator’s order is
for the payment of an amount of money or any other relief which is beyond the
jurisdiction of the Magistrate’s Court, the order may be enforced as if it were a
judgment of the High Court, and a registrar of such a Court must, on lodgement
of a copy of the order, register it as an order in such Court.
[14] On 14 November 2015 , the respondent launched a review application to
this Court online under a separate and different case number 2025 -218125,
seeking to review and set aside of the adjudication order gr anted on 26 August
2025 in favour of the applicant. The set of papers of the review application is
attached in the application papers of these proceedings . Notably, i n its review
application, the respondent did not seek interim relief staying the execution of
the adjudication order pending the finalisation of the review . The respondent
now seeks in the conditional counter -application in these proceedings the
interim relief of stay of the execution of the order. The conditional application is
made in the answering affidavit of the present application.
[15] On 14 November 2025 , the applicant’s trustees passed a resolution for the
applicant to launch an application to this Court to declare the respondent’s
properties specially executed in terms of Rule 46(1)(a) (ii) of the Uniform Rules
of Court. 4 Pursuant to the resolution, in January 2026, the applicant launched
this application under case number 2025-190634.
Issues
[16] The issues to be decided by this Co urt are two-fold. The first issue is
whether the adjudication order is an order of court capa ble of being enforced in
terms of rule 46(1) (a)(ii) of the Rules as if it were judgment of the High Court .
The respondent c ontends that it is not, whereas the applicant argues the
contrary.
[17] The second issue calling for determination is whether the respondent has
made out a case for the interim relief staying the enforcement of the
adjudication order pending the finalisation of the review application of the
adjudication order . Essentially, the respondent seeks to preserve the current
position pending the review under another case number 2025-218125 of this
Court. The pertinent sub -issue then is whether the respondent has met the
requirements for interim relief it seeks as a “conditional counter-application”.
[18] The third issue, which is depend ent on the Court ’s decision on the
conditional application , is whether good cause exists for the respondent ’s
properties to be declared specially executable in terms of rule 46(1)(a)(ii) in the
circumstances of this case. This inquiry will require the Court to consider all the
relevant legal factors.
Parties’ Contentions
[19] The applicant contends that the adjudication order was duly lodged with
the Registrar of this Court and that it may be enforced in terms of the Rules as if
it were the judgment of this Court as contemplated in section 56 of the CSOS
4 The Resolution of the Trustees dated 14 November 2025 is marked as annexure FA1 to the founding affidavit
Act. The applicant averred that the adjudication order was lodge d with the
Registrar on 7 October 2025 through the court online system and was duly
registered on 16 October 2025 , pursuant to which a case number was allocated
by the Registrar.
[20] The respondent contends that the adjudication order is not a court order
capable of enforcement as if it is an order of this Court , in that the applicant had
failed to l odge the adjudication order as claimed. According to the respondent ,
no court order was attached in the applicant’s founding affidavit confirming its
lodgement, and that t he respondent’s attorneys of record were unable to locate
such an order or any evidence of its existence.
[21] The respondent does n either disputes nor deny its failure to pay levies
owing. Instead, the respondent contends that it is entitled to withhold the
payment of levies because, according to the respondent, the applicant has failed
to carry out maintenance at the scheme and specifically to its units , and that the
applicant is indebted to it in an amount of R889 000 for the repairs and
maintenance that the applicant never carried out.
[22] Notably, during the argument, the respondent took a posture that it has a t
all material times been prepared to make payment of the levies due but wanted a
safeguard ensuring that the maintenance work is performed and that it s payment
of levies is utilised for that purpose before it can pay. The reasoning of the
respondent is that, according to the respondent, the applicant had in the past
failed to repair the work with monies paid over.
[23] Regarding the interim relief, the respondent argued that it did not apply for
interim relief to stay the adjudication order when it launched the application for
its review because it was not aware that the applicant had lodged t he
adjudication order to make it an order of Court. In this regard, the respondent
contends that the applicant should have notified it when it lodged the
adjudication order seeking to make it an order of this Court, which they failed to
do. This according to the respondent, fortifies its reasoning that the adjudication
order is not the order of this Court.
Enforcement of the Adjudication order
[24] The first issue to deal with is whether the adjudicatio n order is capable of
enforcement in terms of rule 46(1)(a)(ii). This subsection provides as follows:
“(1)(a) Subject to the provisions of rule 46 A, no writ of execution against the immovable
property of any judgment debtor shall be issued unless –
(i) …………………..
(ii) Such immovable property has been declared to be specially executable by the
court or where the judgment is granted by the registrar under rule 31(5).”
[25] It is noteworthy that r ule 46A , which is referred to as a proviso in the
above rule 46 provisions , relates to a case where the property in question is a
residential property. In this case, the Court is dealing with commercial prop erty,
and therefore the requirements of rule 46A finds no application in consideration
of this matter. Of course, the residual consideration by this Court is whether it
would be in the interests of justice to declare the respondent ’s properties
specially executable in the circumstances of this case.
[26] Equally, it has to be n oted that the adjudication order that has mutated into
an order of this Court through the provisions of section 56(2) of the CSOS Act
is distinguishable from a judgment granted by the Registrar under rule 31(5), for
the latter relates to a default judgment. This is worth pointing out because the
respondent argues that it should have been notified of the application to lodge
the adjudication order before it was registered by the Registrar.
[27] The Court is not persuaded by the respondent’s argument that it should
have been notified of lodgement of the adjudicator holds water. There is no such
a requirement for lodgement of the adjudication order, which is distinguishable
from the application for default judgment in terms of rule 31(5) . The process of
lodgement of the adjudication order making it an order of Court is regulated by
statute. The statute does not make any requirement for the respondent to be
notified that the party in whose favour the adjudication order is granted should
notify the other of the lodgement of the adjudication order.
[28] In any event, in my view, such a requirement would be superfluous, given
that the adjudicator order is a product of the fully ventilated issues before the
adjudicator, and that the respondent was duly notified of the adjudication order.
The respondent was also notified by the applicant that unless payment was
made in compliance with the order, the applicant would take further legal action
without further notification. Further, the adjudication order itself notified the
respondent of its right to appeal in term of section 57 of the CSOS Act, and the
respondent did not exercise that right, nor take any other action.
[29] The enforcement of the adjudication order granted in terms of the CSOS
Act is provided for by section 56(2) of the CSOS Act which provides as
follows:
“(2) If the adjudicator’s order is for payment of an amount of money or any other relief
which is beyond the jurisdiction of the magistrates court, the order may be enforced as
if it were a judgment of the High Court, and a registrar of such a Court must , on
lodgement of a copy of the order, register it as an order of such Court.”
[30] It follows that o nce lodged with the Registrar , the adjudication order
becomes enforceable and may be executed exposing the respondent to
attachment of its assets.5 On the facts, the applicant averred that the adjudication
attachment of its assets.5 On the facts, the applicant averred that the adjudication
order was lodged by its attorney personally, who uploaded same through the
5 Mare v CSOS and Others [2026] ZAGPJHC (16 March 2026)
court online filing system with the Registrar of this Court, wh o duly registered
the adjudication order and thereupon issued the case number to this matter.
[31] The respondent’s basis of challenging the enforceability of the adjudication
order is that no Court order was attached in the applicant ’s founding papers as
proof that the adjudication order was granted and registered by the Registrar.
There is no requirement that the Registrar must issue a Court order on
lodgement of the adjudication order. What section 56(2) provides simply that
“…the registrar of such Court must, on lodgement of a copy of the order,
register it as an order in such court.” In my view, the Registrar did just that.
[32] On the facts, the applicant’s averment that on 16 October 2025, its attorney
of record personally approached the Registrar and lodged the adjudication order,
and that the Registrar in turn duly registered the adjudication order and
allocated the case number 2025-190634 is confirmed by the confirmatory
affidavit of the applicant’s attorney.
[33] On the papers before Court, as contained in the court file in court online
under case number 2025-190634, the cover page has attached on it the
adjudication order. The cover page signed by the Registrar contains the title:
“Statutory Body Determination ”. On it is the Note that reads as follows: “This
document was filed electronically by the registrar on 16 August 2026 at 12 :
41:23 PM South African Standard Time (SAST). The time and date the
document was filed by the party is presented on the header of each page of this
document.”
[34] On the hea der of each page of the registered adjudication order, the date
and time referred to in the cover page reads as follows: “ 16/10/2025 -
12:41:23PM.” Further, each page has the stamp of the Registrar of th is Court.
This demonstrates that the adjudication was duly lodged and registered.
[35] These enforcement proceedings were instituted in January 2026 under the
2025-190634 which was issued in 2025 . As to what may have culminated into
the issuing of that case number in 2025 is difficult to fathom if one were to
follow the respondent’s contention . In my vi ew, this is c onsistent with the
applicant’s version that the adjudication order was lodged in October 2025 way
before the enforcement proceedings instituted in 2026 . It followed that the
respondent’s contention that the adjudication order is not a Court order is
without merit and must be rejected.
[36] In the circumstances, having considered the facts, I am satisfied that the
adjudication order was lodged and duly registered by Registrar of this Court on
16 October 202 5. Accordingly, the Court finds that the adjudication order is
enforceable as it is the order of this Court in terms of section 56(2) of the CSOS
Act.
Counter-Application - for Stay of Execution of the Court Order
[37] The next issue to deal with is whether the applicant has made out a case for
the interim relief of stay of the enforcement of the adjudication order in terms of
rule 45A pending the finalisation of the review . In terms of rule 45A the court
may, on application, suspend the operation an d execution of any order for such
period as it may deem fit. Apart from rule 45A, the court has inherent common
law discretion, which must be exercised judicially, to stay the execution. 6 This
power is also derived from section 173 of the Constitution if the interests of
justice justify.
6 Stoffberg NO v Capital Harvest (Pty) Ltd (unreported WCC case No 2130/2021 dated 2 March 2021 ) at para
[17] to [25]
[38] The general principles for granting of a stay of execution was summarised
in Gios t/a Shakespear Pub v Van Zyl,7 as that:
“a) A court will grant a stay of execution where real and substantial injustice requires it or
where injustice would otherwise result;
b) The court will be guided by factors usually applicable to interim interdicts, except
where the applicant is not asserting a right, but attempting to avert injustice;
c) The court must be satisfied that:
i) The applicant has a well -grounded apprehension that the execution is taking place
at the instance of the respondent;
ii) Irreparable harm will result if the execution is not sta yed and the applicant
ultimately succeeds in establishing a clear right;
d) Irreparable harm will invariably result if there is a possibility that the underlying causa
may ultimately be removed that is where the underlying causa is the subject matter of
an ongoing dispute between the parties.
e) The court is not concerned with the merits of the underlying dispute the sol e inquiry is
simply whether the causa is in dispute.” (own underlining)
[39] The test for granting of interim interdict lies on whether the established
requirements are met. These requirements, which are well established as
articulated in an ancient decision of Setlogelo v Setlogelo ,8 that enjoys
authoritative application till this day , are that in order to succeed, a n applicant
must show : a) a prima facie right , even if open to some doubt , b) a w ell-
grounded apprehension of irreparable harm if the interim relief is not granted
and ultimate relief is eventually granted ; c) that the balance of convenience
favours the granting of the interim relief; and, d) that the applicant has no other
adequate or satisfactory remedy. The above require ments were refined in
Webster v Mitchell.9
7 2011(1) SA 148 (LC) at 155H-156B
8 1941 AD 221
9 1948 (1) SA 1186 (W) at 1189
[40] The Constitutional Court in National Treasury and Others v Opposition to
Urban Tolling Alliance and Others (OUTA)10 confirmed that the Setlogelo test,
as adapted by case law, continues to be a handy and ready guide for the courts in
the grant of interdicts. The caveat though is that when applying the test , the
court must have regards to the constitutional principles that include separation
of powers and the principle of legality especially when dealing with the
challenge of public power.11
[41] In the counter -application, the respondent has not address ed in succinct
terms any of the standard requirements mentioned above for the granting of the
interim interdict or stay of the Court order. Be that as it may, the Court ha s had
due regards to the answering affidavit, which serves as the founding for the
conditional counter application to decipher if such requirement s have been met.
What follows is the assessments of the requirements based on the papers before
Court.
Prima facie right
[42] In OUTA,12 the Constitutional Court made it clear that mere right to
approach the court relying on the right to administrative action that is lawful,
reasonable and procedurally fair as pronounced in section 33 of the
Constitution, read with PAJA, is not enough to satisfy the requirement of prima
facie right to interim interdict pending review of the impugned decision. The
court held that prima facie for this purpose is a right to which, if not protected
by an interdict, irreparable harm would ensue.13
[43] In Webster v Mitchell, the court pronounced on the correct approach to be
followed in determining whether prima facie right has been met as follows .
10 2012 (6) SA 223 (CC) at paragraph [45]
11 Mare v CSOS and Others (supra) at paragraph [31]
12 2012 (6) SA 223 (CC) at paragraph [49]
13 2012 (6) SA 223 (CC at paragraph [50]
Where the court held that the right to be set out by an applicant for a temporary
interdict need not be shown by balance of probabilities. If it is prima facie
established though open to some “doubt” that is enough.
[44] Another principle applicable i n assessing prima fac ie right in interim
interdict to suspend an order pending review is that the court hearing the
interdict must examine the grounds of the pending review to satisfy that the
review has prospects of success. In Economic Freedom Fighters v Gordhan and
Others: Public Protector; Public Protector v Gordha n and Others ,14 the
Constitutional Court followed this principle confirmed that the OUTA principle
applies in interim interdicts restraining exercise of public power.
[45] Fortifying the above test in Ramaphosa v Speaker of the National
Assembly and Others ,15 the Court held that t he review must rest on strong
grounds which are likely to succeed , and the interdict may properly be granted
only where the Court is convinced that the review is likely to succeed.
[46] In casu, the respondent stated in the founding affidavit that: “The grounds
of review are as set out herein above. As a result of the aforementioned, the
adjudicator has misdirected himself.” Nowhere d id the respondent set out its
specific grounds of review. On the papers, it is difficult to decipher what th ose
grounds are in order to make a fair assessment of the prospect s of success in the
review.
[47] In the review application, what appears to be the review ground averred is
that the adjudicator failed to apply her mind by not consolidating the respective
disputes of the applicant and respondent when considering the adjudication
order. In respect of the respondent’s dispute under CSOC 4323WC/24, which
14 2020 (6) SA 325 (CC)
15 2026-138228[2026] ZAWCHC 371 (24 July 2026) at paragraph 13
was dismissed by its adjudicator, and later set aside by the High Court, the latter
did not remit the dispute to the CSOS for reconsideration. Even if it did, that
dispute if any, was not before the adjudicator of the impugned adjudication
order.
[48] Crucially, on reading of the respondent’s answering affidavit in this
application, it is not in dispute that the respondent is indebted to the ap plicant
outstanding levies as claimed. The respondent’s case is centred around what he
asserts as a right to pay the body corporate only if there is guarantee that upon
its payment, the body corporate w ould maintain its units. This Court is not
seized with a case for mandamus against the body corporate. In my view , the
applicant has no right to set a conditional payment of the levies to the body
corporate. Th e members ’ legal obligation t o pay levies is derived from the
statute and is not a quid pro quo arrangement that might arise in a contractual
relationship relations between the parties.16 Section 3(2) of the STSMA places
the liability on the members of the body corporate to pay levy contributions
upon the resolution of the trustees.
[49] In the Court’s view, the respondent does not have a valid defence against
the applicant’s claim. Further, while the review application is a matter yet to be
determined by the review court , this Court is not satisfied that the review
contains grounds on the basis of which the review is likely to succeed.
Accordingly, i t is the Court’s view that the respondent has not satisfied the
requirement of a prima facie right to be granted the interim interdict staying the
execution of the order.
Irreparable harm
16 See Body Corporate of Manhattan v Blake [2025] ZAGPPHC 585
[50] The only possible outcome if the stay is not granted is that the respondent
will be required to pay the outstanding levies due to the applicant , failing which
to have his commercial properties specially executed. This, in my view cannot
qualify as irreparable harm if the stay is not granted, bec ause admittedly, the
respondent owes the levies, and he is prepared to pay the levies, but only on its
self-set conditions. The underlying cause is non-existent between the parties.
[51] The condition precedent to payment of the levies as set by the respondent
is that there must be safeguard that the applicant will utilise the levy payment to
maintain or repair the respondent’s units. In the Court ’s view, no irreparable
harm will be suffered by the respondent in paying what it is by law required to
pay. In any event, the Court has no power to dictate on the body corporate how
it should administer or utilise the levies paid by its members. In the result, t he
respondent has not met th e requirement of irreparable harm if the relief sought
is not granted.
Balance of convenience
[52] The respondent’s properties constitute 32.4% of the participation in the
scheme, the amount of R 3 510 202.373.51 outstanding levies is owing by the
respondent. Consequently, the body corporate is operating with less than a third
of levy contributions paid by its members.
[53] The Court takes a view that the magnitude of the amount owing by
respondent and its resultant impact o n the financial liquidity of the body
corporate, tilts the balance of convenience against the suspension of the order. It
is not in the interests of justice that the body corporate, and consequently its
members, must suffer financial prejudice in the alter of the respondent who
refuses to honour its obligation to pay levies.
Absence of other adequate remedy
[54] The respondent is not without legal remedies to assert its right to repairs
and maintenance of its building. In Body Corporate of Manhattan v Blake,17 the
court held that the defendant seeking recourse against the body corporate has an
option od approaching the Ombud established in terms of the CSOS Act.
[55] To sum up, the respondent has failed to make out a case for the interim
relief of the stay of the execution of the order.
Rule 46(1)(ii)
[56] Unlike in the case where immovable property , which is the primary
residence of the judgement d ebtor as governed by rule 46A , rule 46(1)(a)(ii)
does not lay down the procedure to be followed to have such immovable
property of the judgement d ebtor to be declared specially executed . The Court
has the residual obligation to ensure that it considers all the legally relevant
factors and is satisfied that good cause exists for making such an order.
[57] In this case , the applicant is entitled to recover the arrear levies from the
respondent, the latter does not deny that entitlement and has no valid defence
against the applicant’s claim . The respondent’s conditional preparedness to pay
is not sustainable in law. The outstanding levies withheld by the respondent is a
substantial amount. The applicant has demonstrated that it is suffering financial
liquidity resulting from the respondent ’s failure to pay the due levies and
consequently negatively affected in man aging the body corporate for the good
of all its members including the respondent.
[58] The applicant has succe eded in showing that the adjudication order was
properly lodged and duly registered by the Registrar and is thus an order of this
17 [2015] ZAGPPHC 858
Court duly enforceable. The respondent has failed to demonstrate that he has
prima facie right to the relief to stay of the execution of the order. Most
importantly, the applicant has failed to demonstrate a well -grounded
apprehension of irreparable harm if the operation of the order is not stayed.
Moreover, the balance of convenience is not in favour of the suspension of the
order. The application for the stay fails.
[59] Accordingly, the counter application for the stay of the execution of the
Court order of 16 October 2026 fails. The application for an order declaring the
respondent’s properties specially executable succeeds.
Costs
[60] The general rule is that the successful party should be granted costs and
this rule should not be departed from accept where there are good grounds for
doing so . The Court finds no grounds to deviate from the general rule . The
applicant is therefore entitled to costs on the party and party scale , such costs to
include costs of counsel on scale B.
[61] In the result, the following order is made.
5. The application succeeds.
6. The counter-application is dismissed.
7. The properties consisting of units in in the Panorama Flats and Central
Court, namely Section Numbers 1, 2, 3, 4, 5, 7, 8, 9, 12, 13, 14, 15, 16,
17, 29, 30, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 and
47 registered in the name of Modeen Ente rprise Import and Export
Proprietary Limited Registration Number: 2016/075758/07, are
declared specially executable.
8. The respondent is liable to pay costs of this application, which cost
shall include counsel fees on scale B.
_______________________
ZL MAPOMA
ACTING JUDGE OF THE HIGH COURT
Appearances
Counsel for the Applicant : Adv ES Grobbelaar
Instructed by : Rabie & Rabie, Cape Town
Counsel for the Respondents : Adv AM Heunis
Instructed by : Boy Louw Inc, Paarl
c/o Ward Brink Attorneys, Cape Town