THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case no A3130/2021
In the matter between:
GATESIDE MANOR HOMEOWNERS
ASSOCIATION
First Applicant
and
KOZIBWA MICHAUX HAMISI
First Respondent
MRS NDIVHU RABULA NO
Second Respondent
ZAMA MATAYI Third Respondent
JUDGMENT
DU PLESSIS J (with LIEBENBERG AJ concurs)
Introduction
[1] This appeal concerns whether the rules of the appellant homeowners’
association entitled it to require the first respondent to remove synthetic grass laid
outside his residence.
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 28 August 2026
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[2] The appeal is brought in terms of s 57 of the Community Schemes Ombud
Service Act1 (“the CSOS Act”). It is directed only against the portion of the adjudication
order which refused the appellant’s application for an order requiring the first
respondent to remove synthetic grass that he installed on his property. None of the
respondents opposed the appeal.
[3] The appellant seeks condonation for the late lodging of its appeal. The
application is unopposed. It explains the delay by reference, amongst other matters,
to efforts to resolve the dispute. The delay is not so extensive as to preclude
condonation, and the explanation is adequate. Condonation will accordingly be
granted.
The appeal
[4] Section 57(1)
2 of the CSOS Act permits an applicant, association or affected
person dissatisfied with an adjudicator’s order to appeal to the High Court, but only on
a question of law.
[5] In Stenersen and Tulleken Administration CC v Linton Park Body Corporate ,
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the Full Court held that an appeal under s 57 is an appeal in the ordinary strict sense.
It is a rehearing on the merits confined to the evidence and information on which the
adjudicator’s decision was made, and the enquiry is whether the decision was right or
wrong in respect of a question of law. The Court may not receive new evidence or
resolve factual disputes not determined on the material before the adjudicator. The
appeal court is thus largely restricted to the facts on the record and to the question of
whether the adjudicator interpreted and applied the relevant rules correctly before it.
1 9 of 2011.
2 S 57 (1) 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.
3 2019] ZAGPJHC 387 at 42 that states “an appeal to the High Court against a decision of the adjudicator
contemplated in s 57 is an appeal in the ordinary strict sense – the second category of appeal mentioned in the
Tikly case with the proviso that the right of appeal is limited to questions of law only. The court is limited to the
record and the adjudicator’s order and reasons. In such an appeal, the question for decision is whether the order
of the statutory body performing a quasi-judicial function was right or wrong on the material which it had before it.”
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Background
[6] The appellant is the homeowners’ association of Gateside Manor. It is governed
by a memorandum of incorporation, conduct rules and architectural or building
guidelines. The first respondent owns a unit in the estate. By virtue of that ownership,
he is bound by those documents.
[7] The appellant's stated objectives are to promote and safeguard the collective
interests of members, residents, and estate users, as well as to maintain a high
standard of residential environment. The rules aim to achieve a pleasant streetscape,
ensure safety, and foster "good neighbourliness".
[8] In 2019, the first respondent carried out several improvements outside his
residence. These included installing solar panels, mounting lights on a boundary wall,
and replacing natural grass with synthetic grass in the front area of his property (the
precise location is not clear from the record). The appellant objected to each of those
matters. It contended that the first respondent had proceeded without the necessary
approval and did not comply with the rules, building guidelines, and the estate’s
aesthetic standards.
[9] The first respondent was told that the synthetic grass was not approved and did
not comply with the look and feel of the estate. He was invited to meet with the
directors, and did so, but indicated that he could not wait for the matter to be resolved
at the annual general meeting. He proceeded with the installation of the synthetic
grass despite the appellant’s objection.
[10] The first respondent also gathered signatures from other residents in support
of the synthetic grass, although the appellant did not regard that process as
compliance with the requirements applicable to building works or as a basis for the
first respondent to disregard the director’s decision.
[11] At the annual general meeting held on 14 November 2019 (after the grass was
installed), the members voted against the use of artificial lawn in spaces visible from
common property.
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[12] The dispute was referred to the Community Schemes Ombud Service.
Conciliation did not resolve the matter, and it was referred to adjudication. The
adjudicator held that the solar panels and boundary-wall light had been installed
without the necessary approval and ordered their removal. In relation to the synthetic
grass, however, the adjudicator held that the rules were silent; that the appellant had
incorrectly sought to bring the matter under the rules relating to additions, alterations
and building works; and that the later resolution could not apply retrospectively. The
application to remove the synthetic grass was refused.
The appellant’s submissions
[13] The appellant submits that the adjudicator adopted an unduly narrow approach
to the rules. Counsel contends that the memorandum of incorporation, the conduct
rules and the architectural or building guidelines must be read together, contextually
and purposively.
[14] The appellant relies on the broader purpose of the scheme: to preserve the
quality, coherence and aesthetic character of the estate. It submits that the directors
are responsible for ensuring that alterations, improvements, and visible features are
consistent with the complex's material and aesthetic standards.
[15] The appellant relies, in particular, on the following provisions:
a. the rules governing additions, alterations and building works;
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b. the requirement of directors’ written approval for building works;
c. the prohibition on permanent or temporary structures visible to
neighbours without prior written approval;
5
4 “Building Works” is defined in the Memorandum of Incorporation as “construction work of any sort including, but
not limited to the erection of new structures, alterations to existing structures which are visible from the Common
areas or from other Dwellings, within the Complex”.
5 Rule 1.5 provides that: "No permanent or temporary structure including but not limited wendy houses, tool sheds,
jungle gyms, satellite dishes, solar heating panels, chimneys, air conditioning units, etc. may be placed or erected,
where visible to neighbouring homes unless with the approval by the Home Owner's Association as well as the
neighbours concerned. The Home Owner's Association reserves the right to revoke at any time and for any reason
any such permission granted."
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d. the requirement that owners maintain the area between the street kerb
and their residences, and keep external gardens neat and tidy;6
e. the obligation to keep visible parts of dwellings neat, tidy and in keeping
with the general look and feel of an upmarket complex;7
f. the prohibition on the damage to or removal of flora from any common
property, area or open space;8 and
g. the provision that the rules are binding on every person in the estate, as
is any decision of the directors in interpreting them.
[16] The appellant submits that the first respondent’s removal of the grass,
excavation and preparation of the surface, and laying of synthetic grass amounted to
building work or an alteration. It contends that he was required to obtain approval
before proceeding and did not do so.
[17] The appellant further submits that grass is flora in the ordinary sense; that the
removal of the natural lawn was accordingly prohibited; and that the relevant area was
either common area or, at the least, visible from common property and part of the
regulated streetscape of the estate.
[18] Finally, the appellant submits that the resolution of the annual general meeting
did not create a new prohibition retrospectively. It contends that the directors had
already determined that the synthetic grass could not be installed and that the meeting
merely confirmed or ratified that decision.
Interpretation of the relevant documents
[19] The appellant is correct that the memorandum of incorporation, rules, and
guidelines should be read together. Their interpretation must be established from the
6 Rule 7 of the conduct rules of the complex provides: "7.1 Every owner shall maintain the area between the street
kerb and his residence and the external gardens of each property shall be kept neat and tidy at all times. In the
event of an owner failing to maintain such sidewalk to the satisfaction of the association the association shall be
entitled to take such action as may be necessary for the maintenance of such sidewalk and to charge such member
concerned."
7 Rule 1.7 provides: “All owners shall ensure that all parts of their Dwellings which are visible from the common
property are maintained, kept neat and tidy and in keeping with the general look and feel or an upmarket Complex."
8 Rule 7.12 provides that: "Flora may not be damaged or removed from any common property or area or open
space."
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language employed, considering the context, the purpose of the documents, and the
scheme they govern. These principles are well-established, as outlined in Natal Joint
Municipal Pension Fund v Endumeni Municipality.9
[20] The documents are part of the contractual governance framework that binds
the appellant and its members. The Court should consider their purpose: ensuring the
orderly administration of the estate, safeguarding the collective interests of members,
and maintaining a harmonious and appealing residential environment.
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[21] Homeowners within Homeowners’ associations retain ownership of their
individual erven and, in principle, the ordinary incidents of ownership. However, by
acquiring property within the estate, they accept restraints imposed on certain
incidents of ownership by the memorandum, rules, and properly adopted guidelines in
the interests of communal living.
11 The relationship between the association and its
members is contractual.12
[22] The appellant is also correct that directors have a key role in implementing and
interpreting the rules. It is also true that, in the nature of estate living, the rules do not
leave the appearance and maintenance of each home entirely to individual
preference.
13 Instead, they are designed to maintain a harmonious and uniform
streetscape, with directors responsible for enforcing and interpreting these rules. This
role requires judgment regarding the scheme's collective interests, including its
aesthetic and enforcement practices.
[23] The authority of a homeowners’ association, including its power to impose
sanctions or seek coercive relief, is derived from its memorandum, constitution and
9 2012 (4) SA 593 (SCA) para 18.
10 As set out in the Memorandum of Incorporation.
11 Abraham v Mount Edgecombe Country Club Estate Management Association Two (RF) NPC [2014] ZAKZHC
36 paras 23 and 46.
12 See Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh 2019 (4) SA 471
(SCA) paras 19–20.
(SCA) paras 19–20.
13 Bushwillow Park Home Owners v Fernandes [2015] ZAGPJHC 250 para 17.
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rules. It has no inherent power beyond that framework. 14 The extent of the
association’s power is thus dependent upon the language of its governing documents.
[24] Put differently, the rules they seek to enforce must be sufficiently clear from the
documents themselves, and the interpretation of the rules must be a reasonably
possible interpretation. A general objective of aesthetic coherence cannot replace the
need for clearly articulated rules regarding what this entails.
[25] The balance is fine, however. This does not require the rules to specify every
conceivable form of conduct, every material or every landscaping choice. General
standards of neatness, safety, nuisance, architectural compatibility and aesthetic
coherence may properly be enforced, provided that their content is reasonably
ascertainable from the text, context and purpose of the governing documents.
However, the more intrusive the relief sought (particularly an order compelling an
owner to undo completed work at personal cost), the greater the need for a clear rule-
based foundation.
[26] The balance must be struck in the governance of a homeowners’ association,
which must therefore accommodate both collective and individual interests. Its rules
should provide for owners’ responsibilities and duties, with due regard to their opinions
on aesthetics and conduct within the scheme, together with appropriate enforcement
measures. Community living and estate uniformity do not require eliminating all
individual choice. An owner remains entitled to use and enjoy privately owned property
within the boundaries which the contractual documents fairly and clearly establish.
[27] Van der Merwe,
15 referring to Kenrock Homeowners Association v Mewett 16,
states that scheme rules need not be enforced with military precision to the finest
detail, and that harmonious estate living may allow a measure of individualism,
consistent with the governing documents.
consistent with the governing documents.
14 Kenrock Homeowners’ Association v Allsop [2012] ZAWCHC 31 paras 26 – 28.
15 CG van der Merwe Sectional Titles, Share Blocks and Timesharing vol 1 (2026) para 1.7.3.1.
16 [2010] ZAWCHC 12 para 11. See also GJ Pienaar and JG Horn Sectional Titles and Other Fragmented Property
Schemes 2 ed (2020) p 522.
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[28] The task in this matter is accordingly to give proper effect to both sides of the
contractual arrangement. The appellant is entitled to enforce valid rules directed at the
maintenance, appearance and common interests of the estate. The first respondent is
correspondingly bound by those rules. But the first respondent may not be compelled
to remove an installation merely because it is later regarded as undesirable. The
appellant must identify a provision which, interpreted textually, contextually and
purposively, supplied a sufficiently clear basis for that relief when the conduct
occurred.
[29] It is against these principles that the appellant’s reliance on the building-works
provisions, the rule concerning flora, the streetscape requirements and the directors’
decision must be considered.
Did the installation amount to “building work"
[30] The appellant’s first contention is that the installation of the synthetic grass
constituted building work or an alteration requiring the directors’ prior written approval.
“Building work” is defined in the Memorandum of Incorporation as:
“construction work of any sort including, but not limited to the erection of new
structures, alterations to existing structures which are visible from the Common areas
or from other Dwellings, within the Complex”
[31] It is accepted that installing synthetic grass was more involved than simply
laying a surface over existing grass. Natural grass was removed, and the ground was
prepared before the synthetic turf was laid. That does not, however, determine
whether the activity was “building work” as that is set out in the rules.
[32] This is because the building-works provisions appear in a section headed
“Additions, Alterations and Painting”. The whole provision reads as follows:
1 ADDITIONS, ALTERATIONS AND PAINTING
1.1 Since all buildings / improvements in the Complex have been completed according
to the architectural standards of the Complex the intention of these Rules is, inter alia
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to protect such standards and all future building activity and Building Works will only
be allowed under the following circumstances:
1.1.1 All proposed Building Works or alterations shall comply with the local authority's
requirements in respect of, inter alia the submission and approval of building plans,
and any other requirements the local authority may stipulate from time to time. T he
onus is on the Member in question to establish the parameters of such requirements;
1.1.2 The Directors' written consent is required for all Building Works. This consent
shall not be unreasonably withheld.
[33] The provision thus contemplates building improvements and works which may
require municipal approval and building plans. Understood in its context, “building
works” refers to work of a structural or constructional character relating to buildings
and improvements. From the wording and context, it is not intuitively directed at
ordinary landscaping merely because it involves the removal of soil, excavation, or
surface preparation.
[34] Interpreting the provision as the appellant suggests would extend the building-
works approval process to many common landscaping tasks such as replacing lawns,
preparing flower beds, planting shrubs, installing edging, laying garden surfaces, or
changing soil levels. The rules do not support this view. Installing synthetic grass is
properly characterised as landscaping rather than building work under the relevant
regulations. Therefore, lacking written approval under the building-works rules does
not grant the right to the relief the appellant seeks.
[35] Nor is synthetic grass a permanent or temporary “structure” within the ordinary
meaning of the separate rule which prohibits visible structures,
17 such as wendy
houses, sheds, jungle gyms, satellite dishes, awnings, solar panels, chimneys and air-
conditioning units, without approval. That provision is directed at physical structures
and attachments, not the choice of ground cover.
and attachments, not the choice of ground cover.
17 As expressly provided for in paragraph 1.5.
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Did the respondent remove flora?
[36] The appellant rightly states that grass is flora in the usual sense, since it is living
plant material. The adjudicator’s claim that grass cannot be considered flora is
unsupported. Still, this does not resolve the appeal. Rule 7.12 states that flora must
not be damaged or removed from “any common property or area or open space". The
appellant argued that the synthetic grass was placed in a common area or,
alternatively, in an area visible from common property. The adjudicator found that the
natural grass had been taken from the first respondent’s private garden, not the
common area. It must be stated that the record contains no plan, title material or
factual finding which permits this Court to determine whether the precise strip from
which the grass was removed was common property, an “area” or an “open space”
within the meaning of rule 7.12, rather than part of the first respondent’s erf. There is
thus some difficulty for this court to determine the factual issue, which it is, in any case,
not entitled to do.
[37] Despite this challenge, the appellant faces an additional difficulty. The relief
requested from the adjudicator and on appeal is an order to remove the synthetic
grass. The appellant did not request a separate declaration that the first respondent
violated rule 7.12, nor did it seek relief specifically aimed at restoring natural grass or
rectifying its alleged removal.
[38] Rule 7.12 concerns the removal or damaging of flora. It does not prescribe the
surface which may be placed in a particular area once grass has been removed. It
does not say that natural grass is the only permissible ground cover, or that synthetic
grass may not be used in a front or visible area.
The directors’ discretion
[39] The appellant rightly emphasises that rule 7 is concerned with ensuring a
pleasing streetscape, safety and good neighbourliness. The rule states:
“7 Ensuring a pleasing streetscape, safety and good neighbourliness
“7 Ensuring a pleasing streetscape, safety and good neighbourliness
7.1 Every owner shall maintain the area between the street kerb and his residence and
the external gardens of each property shall be kept neat and tidy at all times. In the
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event of an owner failing to maintain such sidewalk to the satisfaction of the
Association, the association shall be entitled to take such action as may be necessary
for the maintenance of such sidewalk and to charge such member concerned.”
[40] Rule 1.7 states
“1.7 All owners shall ensure that all parts of their Dwellings which are visible from the
common property are maintained, kept neat and tidy and in keeping with the general
look and feel of an upmarket Complex.”
[41] These provisions impose standards of maintenance and appearance. They
empower the appellant to address neglected, untidy, unsafe or unsightly areas and, in
appropriate cases, to require an owner to remedy a breach. They do not, however,
prescribe natural grass as the only acceptable ground cover. Nor do they state that
synthetic grass is prohibited in a kerbside or front-garden area.
[42] The “look and feel” of an upmarket complex must be given practical effect by
the directors in a manner consistent with the rules and the scheme's legitimate
interests. But it must be applied objectively, consistently, and by reference to
intelligible standards contained in or properly developed under the governance
documents, as explained above.
[43] It cannot mean that the directors may, after the event, create a binding
prohibition against a material simply because they regard it as aesthetically
undesirable. To hold otherwise would make the scope of an owner’s contractual
obligations depend entirely upon an unstructured and undefined aesthetic preference
of the directors.
[44] The record does contain specific aesthetic standards. For example, it
prescribes approved paint colours and specific paving colours, and it regulates the
appearance of structures and external installations. In that regard, the adjudicator’s
award rightly ordered the removal of certain solar panels and a boundary wall light that
did not comply with the prescribed list. However, no landscaping guideline, “plant
did not comply with the prescribed list. However, no landscaping guideline, “plant
palette”, or pre-existing flora rule was identified that required natural grass in the area
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in question, prohibited synthetic grass, or specified that artificial turf was inconsistent
with the look and feel of the estate.
[45] We are not called upon to decide whether natural or synthetic grass is more
attractive. The question is whether the rules authorised the appellant to compel this
first respondent to remove the synthetic grass. They did not do so clearly.
The directors’ decision and the AGM resolution
[46] The correspondence shows that the first respondent knew the directors
objected to the synthetic grass and nonetheless proceeded. He was not entitled simply
to disregard the appellant’s concerns. His conduct explains the appellant’s
understandable frustration and its concern with orderly governance within the estate.
[47] But the managing agent’s communication that synthetic grass was “not
allowed”, and that the directors were entitled to demand its removal, cannot itself
create the rule on which the appellant must rely. The question remains whether the
objection was anchored in a pre-existing rule which clearly prohibited the installation
or retention of synthetic grass.
[48] The appellant submits that the annual general meeting’s resolution against
artificial lawn in areas visible from common property did not retrospectively create a
rule, but merely confirmed or ratified a decision already taken by the directors. It was
open to the appellant, through its governance structures, to adopt a rule or resolution
regulating artificial grass in areas visible from common property. The resolution may
have a proper prospective operation.
[49] Still, the issue on this appeal is whether, before the resolution was taken, the
governing documents already prohibited the relevant conduct. The resolution
introduced a specific standard concerning artificial grass visible from common
property. That standard was not expressed in the previous provisions upon which the
appellant relies. Rather, the need to adopt a resolution expressly addressing artificial
appellant relies. Rather, the need to adopt a resolution expressly addressing artificial
grass indicates that the earlier documents lacked a clear rule on the subject. It could
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not retrospectively create a contractual prohibition which was not otherwise apparent
from the pre-existing rules.
Conclusion
[50] Taking all this into account, the conclusion is that the appellant has not
established an entitlement under the rules, as they stood at the relevant time, to
compel the first respondent to remove the synthetic grass. The adjudicator’s order was
not wrong in law. The appeal must fail. The appeal was unopposed, which means no
order as to costs need to be made.
Order
[51] The following order is made:
1. Condonation for the late lodging of the appeal is granted.
2. The appeal is dismissed.
3. There is no order as to costs.
_____________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
4 June 2026
Date of judgment:
28 August 2026
For the appellant:
WC Carsten instructed by Barnard
Attorneys
For the respondent:
No appearance