Koster v Centurion Homeowners Association (NPC) and Others (Leave to Appeal) (2024-091277) [2026] ZAGPPHC 22 (27 January 2026)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2026 >> [2026] ZAGPPHC 22 | Noteup | LawCite sino index ## Koster v Centurion Homeowners Association (NPC) and Others (Leave to Appeal) (2024-091277) [2026] ZAGPPHC 22 (27 January 2026) Koster v Centurion Homeowners Association (NPC) and Others (Leave to Appeal) (2024-091277) [2026] ZAGPPHC 22 (27 January 2026) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2026_22.html sino date 27 January 2026 IN THE HIGH COURT OF SOUTH AFRICA Gauteng Division, Pretoria Case No.: 2024-091277 (1)  Reportable: NO (2)  Of Interest to Other Judges: NO (3)  Revised: YES Date 27 January 2026 Signature In the matter between: JENNIFER LYNNE KOSTER Applicant and CENTURION HOMEOWNERS ASSOCIATION (NPC) First Respondent THE CITY OF TSHWANE Second Respondent METROPOLITAN MUNICIPALITY VERSATEX TRADING 80 (PTY) LTD Third Respondent JUDGMENT: APPLICATION FOR LEAVE TO APPEAL NEL, AJ: INTRODUCTION [1]      This is an application for leave to appeal against the judgment and order of this Court delivered on 11 November 2025. In that judgment, I dismissed the main review application as moot and made no order as to costs. [2]      The application is brought in terms of Section 17(1) of the Superior Courts Act 10 of 2013. The test is trite: leave may only be granted if the Court is of the opinion that the appeal ‘ would ’ have a reasonable prospect of success, or if there is some other compelling reason why the appeal should be heard. [3]      The grounds of appeal are set out in the Applicant’s Notice of Application for Leave to Appeal. In essence, the Applicant contends that this Court erred in finding that the principle in Oudekraal did not apply to the First Respondent, and misdirected itself by relying on Rule 34 to deprive the Applicant of costs. THE MERITS AND MOOTNESS [4]      The Applicant persists with the argument that the First Respondent, a Homeowners Association (HOA), exercises public power when approving building plans and that, consequently, the principle in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) applies. The submission is that the initial refusals of the plans remain valid administrative acts until set aside. [5]      This argument bears no reasonable prospect of success. In Mount Edgecombe Country Club Estate Management Association II RF NPC v Singh 2019 (4) SA 471 (SCA), the Supreme Court of Appeal clarified that the relationship between an HOA and its members is private and contractual, founded on the Memorandum of Incorporation. It has no public law content, and does not involve the exercise of public power or the performance of a public function. [6]      Counsel for the Applicant submitted that Oudekraal applies equally to public and private powers. There is no authority for this proposition. The principle is a mechanism of public law designed to preserve the certainty of administrative acts. It does not apply to a contractual breach between private parties. [7]      Furthermore, even if Oudekraal were applicable, the Supreme Court of Appeal held in that matter that the principle applies where the invalid act is a “ necessary precondition for the validity of consequent acts ” (at para [31]). In this matter, the refusals have been made ineffective. They are not the foundation for any subsequent act. The plans have since been approved and an occupation certificate issued by the Second Respondent municipality. These acts (by the municipality) do not depend on the invalidity of the First Respondent’s refusals for their legal force. There are no flowing consequences that require the setting aside of the initial decision. The review is undeniably moot. COSTS AND THE APPLICABILITY OF RULE 34 [8]      The gravamen of the Applicant’s complaint is the costs order. The Applicant argues that Rule 34 does not apply to review proceedings and that an administrator cannot tender an unlawful decision. Relying on Van Staden v Pro-Wiz Group (Pty) Ltd 2019 (4) SA 532 (SCA), the Applicant contends that this Court committed an error of law which prevented the proper exercise of discretion. [9]      This argument fails to distinguish between the reasoning of a judgment and the substantive order. As held in Western Johannesburg Rent Board v Ursula Mansions 1948 (3) SA 353 (A), an appeal lies against the order, not the reasons. [10]    Even if another court were to find that Rule 34 is technically inapplicable to review proceedings, the result—the deprivation of costs—remains unassailable on common law grounds. If the First Respondent’s tender of 10 December 2024 fell outside Rule 34 , it constituted a common law “ without prejudice ” offer of compromise. Whether analysed under Rule 34 or the common law, it was protected from disclosure, and the Applicant’s divulgence thereof was a breach of the privilege attaching to settlement negotiations. [11]    The Respondent’s counsel correctly referred this Court to Hotz & Others v University of Cape Town 2018 (1) SA 369 (CC), where the Constitutional Court affirmed that an appeal court will not lightly interfere with the exercise of a lower court’s discretion in the true sense, such as regarding costs. [12]    My judgment (specifically at Paragraph 40) was based on the Applicant’s conduct—specifically, the opportunism of appropriating the benefit of the tender while rejecting the condition as to costs. This was a judicial exercise of discretion based on the facts. An appeal court has no power to substitute its own discretion simply because it might have come to a different conclusion ( Knox D’Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58 ; 1996 (4) SA 348 (A) at 360E-F). CONCLUSION [13]    An appeal on the merits would have no practical effect as envisaged in Section 16(2)(a)(i) of the Superior Courts Act >. Regarding costs, the order is sustainable on grounds independent of the Rule 34 finding. There are no reasonable prospects of success, nor are there compelling reasons to grant leave. [14]    In the result, I make the following order: 1.       The application for leave to appeal is dismissed. 2.       The Applicant is ordered to pay the costs of the application on scale B. E. J. J. NEL Acting Judge of the High Court Gauteng Division, Pretoria APPEARANCES: For the Applicant: Adv D. van den Bogert SC (Instructed by: LA Stuart Inc.) For the First Respondent: Adv R. F. de Villiers (Instructed by: Prinsloo- van der Linde Attorneys) Date of Hearing: 19 January 2026 Date of Judgment: 27 January 2026 sino noindex make_database footer start