Cassim and Another v Trustees of Drakensberg Body Corporate and Others (A261/2024) [2025] ZAGPPHC 1372 (19 December 2025)

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 >> 2025 >> [2025] ZAGPPHC 1372 | Noteup | LawCite sino index ## Cassim and Another v Trustees of Drakensberg Body Corporate and Others (A261/2024) [2025] ZAGPPHC 1372 (19 December 2025) Cassim and Another v Trustees of Drakensberg Body Corporate and Others (A261/2024) [2025] ZAGPPHC 1372 (19 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1372.html sino date 19 December 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: A261/2024 (1)      REPORTABLE: NO (2)      OF INTEREST TO OTHER JUDGES: NO (3)      REVISED. (4)      Date: 19 December 2025 Signature: In the matter between: NIELOPAHR CASSIM 1st Appellant SHEREEN CASSIM 2nd Appellant And THE TRUSTEES OF DRAKENSBERG BODY CORPORATE 1st Respondent MID-CITY PROPERTY SERVICES (PTY) LTD 2nd Respondent 8 MILES INVESTMENT 493 (PTY) LIMITED RESPONDENT 3 rd Respondent MOMYELA ELVIS MATOME 4th Respondent MANGANDA GOLDEN BLESSING 5th Respondent LAMBANI MOLINGONI JOMO 6 th Respondent TKC PROPERTIES CC 7th Respondent BIOPROP (PTY) LIMITED 8th Respondent RENATE GARLIPP 9th Respondent MANK-PORTFOLIO (PTY) LIMITED 10th Respondent SIBANYONI NONHLANHLA KHABONINA 11th Respondent LETSEBE MOTLATJIE ANNE 12th Respondent KLAUS GARLIPP 13th Respondent MARTHA MARTJI 14th Respondent DT PREMIER PROP (PTY) LIMITED 15th Respondent COMMUNITY SCHEMES OMBUD SERVICES 16th Respondent COMMUNITY SCHEMES OMBUD SERVICES ADJUDICATOR – K MABASO 17th Respondent JUDGMENT NYATHI J (HASSIM J) A. INTRODUCTION [1]         The appellants are appealing a decision made by an adjudicator (Mr K Mabaso) of the Community Schemes Ombud Service (CSOS) of which they are members by virtue of being owners of a residential unit in the scheme (“the body corporate”) managed by the first respondent and registered in terms of the CSOS Act 9 of 2011. [2]         The appellants had been duly elected as Trustees of the scheme and were removed from their positions at a Special General Meeting (SGM) called by the respondents. The nub of their complaint is that the meeting had been unlawfully convened, and the resolutions taken thereat were consequently illegal. [3]         A dispute was lodged for adjudication with the Community Schemes Ombud (CSOS). It is against the Adjudication Order, dated 22 August 2024, granted by the Adjudicator K Mabaso that this appeal is before the full-bench in terms of section 57 of the CSOA Act. The appeal is unopposed. B. BACKGROUND [4]         The appellants are registered owners of 2 residential units in the Drakensberg Body Corporate for over 35 years. [5]         At the Annual General Meeting (AGM) of 15 December 2020, appellants were elected as trustees for the first respondent. [6]         During the appellant’s term in office, they launched 2 applications at the Pretoria High Court at their own expense and succeeded before Davis J, inter alia: 6.1 To remove Trafalgar Property Management (Pty) Ltd as managing agent. 6.2 To compel Trafalgar Property Management to furnish all books of account including the bank statements in respect of the account in which levies from the first appellant were received, and the entries in those bank statements relating to the body corporate funds should be made available to the body corporate as a trust client. [7]         There was non-compliance with the above order by Davis J. In a suspicious coincidence, on 18 July 2023, 5 owners requested the respondents to call a SGM in order to remove the appellants as trustees, citing grounds of alleged no-confidence for failure to call an AGM, issues of electricity and insurance in Drakensberg. [8]         The appellants refused to call the SGM. [9]         Klaus Garlipp, a non-owner, in a letter dated 20 September 2023, sent to Midcity, and to certain owners, demanded that a SGM be called by Midcity before the end of October 2023 (aiming for 23 October 2023 so that if a postponement is needed it can be held on 31 October 2023.) [10]     Midcity, in a letter dated 28 September 2023, acting on the instructions of the non-owner Klaus Garlipp, informed the appellants that the Notice to call the SGM will go out on 29 September 2023. [11]     Appellants, on the 10 October 2023, launched an application in the Pretoria High Court to interdict the SGM; however, due to procedural irregularities in the setting down of the application on 6 November 2023, the matter was struck off the roll for lack of urgency. [12]     Midcity held the SGM on 7 November 2023 at their premises and the appellants were removed as trustees at this meeting. [13]     CSOS has confirmed the removal of the appellants in the Adjudication Order. C. ISSUES FOR DETERMINATION [14]     The appellants submit that the Adjudicator made errors of law as follows: 14.1 The seventeenth respondent, the adjudicator, K Mabaso, in his inexperience violated the Constitutional imperatives to act impartially and without bias and lacks knowledge on the points of law in issue, has acted with gross negligence, and has brought CSOS into disrepute in her failure: 14.1.1 He failed to consider the judgments of Mosopa J dated 29 April 2020; Davis J of 19 July 2023 and the CSOS award of 22 August 2022 which was paramount in the determination of the matter. The judgment of Mosopa J found that Midcity was responsible for the lack of electricity in the first respondent and they breached their management contract by failing to collect the arrear levies, failure to insure the building, failure to keep proper books of account. The judgment of Davis J dated 19 July 2023 compels Trafalgar to furnish all books of account including the bank statements which they have not done to date. 14.1.2 He identified only 10 (ten) respondents, when in fact there were fifteen respondents. In doing so, he failed to adjudicate effectively in this matter. 14.1.3 The adjudicator Mabaso made defamatory and unfounded conclusions in violation of the appellants' Constitutional rights to dignity contemplated in Section 10 thereof. He found that: “ during the applicants' tenure as trustees: the building constituting the Scheme was invaded by illegal occupants; There was no access control; The  building was not kept clean; There was no water and electricity; The municipal account was in arrears; Levies were not collected; The owners felt that the applicants were unable to manage the property and had lost control; The above failures were the main reasons behind the decision to have the applicants removed as trustees;” “ The applicants refused to convene this SGM, acting in contravention of MR 17(4)(a). The applicants put their own interests (to remain trustees) ahead of those of the Scheme and its members. They failed in their fiduciary duties owed to the Scheme.” These conclusions must be rejected, in consequence of the findings in the judgment of Mosopa J and the CSOS award dated 17 August 2022 against Midcity Property Services (Pty) Ltd (second respondent). 14.2 The adjudicator's failure to find that a period of 9 months from the date of submission of the appellants’ application for dispute resolution on 15 November 2023 to 22 August 2024 to determine the matter was  unreasonable and constituted an unconscionable period, which gravely prejudiced the appellants as both owners and trustees as they were removed unfairly and without proper procedures being followed and defeated the CSOS process which allows for matters to be determined speedily and efficiently. 14.3 The seventeenth respondent, K Mabaso, has misunderstood the provisions of Section 7(1) of Sectional Titles Schemes Management Act (STSMA ) when he finds that the second respondent was entitled to act in all respects on behalf of and in the name of the Scheme. This is an error of law in that: 14.3.1 The second respondent, Midcity Property Services (Pty) Ltd, as managing agent for the first respondent, acted ultra vires the provisions of Section 7(1) of the Sectional Title Management Act (STSMA) in terms whereof the functions and powers of the first respondent must be performed and exercised by the trustees of the body corporate holding office in terms of the rules. 14.3.2 Midcity was obliged to take instructions from the appellants as trustees and not from a non-owner Klaus Garlipp as recorded in "NC11" page 76, when Garlipp directed Midcity "to call an SGM with the contents of my request for the SGM, and Midcity Property Services to give notice as soon as possible so that the meeting can be held before end October 2023." 14.3.3 On the instructions of a non-owner Klaus Garlipp, the second respondent issued a notice dated 29 September 2023 calling for the SGM on 7 November 2023. 14.4 The adjudicator, K Mabaso, has erred in law and fails to understand the provisions of Section 7(1) of STSMA and in finding that the second respondent was duty bound to act when the trustees failed to do so. He finds that, in fact, Clause 4.4.2 of the Management Agreement provides that one of the functions is to draft and dispatch circulars, notices, agendas, proxies and nominations forms for general meetings of owners. There is no provision that such duties must be approved by the trustees. 14.5 The Adjudicator, K Mabaso  has erred in law in failing to understand the provisions of Regulation 17(4) of STSMA which entitles the 7 owners who requested the SGM and such request was refused by the appellants, to convene the Special General Meeting themselves at their own expense and at their own venue and not at the expense of Drakensberg Body Corporate and at the offices of Midcity Property Services, the second respondent who is the managing agent for Drakensberg body corporate not for individual owners. 14.6 The adjudicator K. Mabaso has erred in law in his conclusion that the absence of the 3 owners at the meeting of 7 November 2023 did not invalidate the Special General meeting, as there is no provision in the STSMA which obliges anyone to attend any meeting, and this assertion is therefore not founded in law. The adjudicator concludes “ Therefore, the order sought declaring that the absence of the ninth, third and one Anne, invalidated the SGM has no basis in law and is accordingly dismissed in terms of Section 53(1)(a) as vexatious and misconceived.” This finding, with respect, endorses the inability of the adjudicator, K Mabaso, to understand the provisions of Regulation 17(4) of the STSMA. The three owners who requested the SGM were obliged to be present at the SGM on 7 November 2023 which should have been called at their own venue and not that of Midcity Property Services at 5[...] J[...] Street, Sunnyside East. In consequence of their absence at the SGM, the percentage necessary to convene the SGM by the remaining 4 owners was not reached and the SGM was not quorate and was thus invalid. 14.7 The Adjudicator, K Mabaso, failed to adjudicate on the point of law mentioned hereunder, namely: 14.7.1 Whether the absence of the 3 owners who requested the SGM, namely 8 Miles Investment 493 (Pty) Ltd (third respondent), Renate Garlipp (ninth respondent), and Letsebe Motlatjie Anne (twelfth respondent), at the SGM on 7 November 2023 resulted in the SGM being invalid. 14.7.2 Whether reliance could have been placed on the requests by: i. SIC Prop (Pty) Ltd dated 24 July 2023 "(NC7(a)" , page 62. ii. 8 Mile Investment (493) dated 20 July 2023 - "(NC7 63) ". iii. Mank — Portfolio (Pty) Ltd dated 24 July 2023 - "(NCT(c)" , page 64, when the resolutions by these three entities namely "NC7(f)", page 67; "NC7(g)", page 68, "NC7(h)", page 69, and "NC7(j)", page 70, were fatally flawed and defective for lack of information as to the mandate of the directors in each case who requested the SGM. 14.7.3 On whether the agenda dated 29 September 2023 namely "NC14" at pages 80 to 81, was itself fatally flawed and in contravention of MR 17(5) of STSMA which categorically states: "Members who requested a meeting in terms of sub-rule 4 must include one or more motions or matters for discussion with their request and these motions or matters must be included, without amendment in the agenda for the meeting." D. POINTS OF LAW RAISED BY THE APPELLANTS: [15]     Whether the directive by the Ombudsman, Mr Abraham Masilo that the matter be adjudicated in Cape Town, when the matter was registered in Gauteng, under Case No: CSOS 9700/GP/23 is procedurally unfair and conflicts with the provisions of both Section 44 of CSOS Act and Promotion of Access of Information Act 2 of 2000 more particularly in that: "The provisions of Section 44 of the CSOS Act, 2011, affords the appellants the rights to inspect the contents of the original file including submissions from respondents and alI documents therein contained." E. FATALLY FLAWED AGENDA [16]     The agenda dated 29 September 2023, calling for the meeting of 7 November 2023 (“NC14”) was not compliant with the Management Rule 17(5) STSMA. Rule 17(5) provides that: "Members who request a meeting in terms of sub-rule 4 must include one or more motions or matters for discussion with their request and these motions or matters must be included without amendment in the agenda for the meeting." [17]     The removal of the appellants as trustees was done in a surreptitious manner, not having been included in the agenda or even foreshadowed in any manner. [18]     The High Court has inherent jurisdiction and can intervene in the affairs of a body corporate. This is typically a remedy of last resort, used in complex cases, or when appealing a point of law from a CSOS decision. The court can set aside an unlawful resolution to remove trustees and effectively reinstate them or make any order it deems necessary to ensure the body corporate is managed in accordance with the Sectional Titles Schemes Management Act (STSMA ) and its rules. [19]     This court has the appellants’ uncontroverted version of events and the established legal principles to guide it. On the facts dealt with and the points of law raised, the appellants’ appeal must succeed. F. ORDER [20]     The following order is made: 20.1 The adjudication order by Adjudicator K. Mabaso, the 17 th respondent is set aside. 20.2 The appellants are reinstated as trustees of the first respondent with immediate effect. The respondents are ordered to pay the costs of the appeal on a party and party scale, jointly and severally, the one paying the others to be absolved. J.S. NYATHI Judge of the High Court Gauteng Division, Pretoria I agree: SK. Hassim Judge of the High Court Gauteng Division, Pretoria Date of hearing: 29 April 2025 Date of Judgment: 19 December 2025 On behalf of the 1 st Appellant: Adv. N Cassim SC (In person) 2 nd Appellant: Mr M Dickson Attorneys for the Appellants: MBAZIMA DICKSON INC, ATTORNEYS Delivery : This judgment was handed down electronically by circulation to the parties' legal representatives by email and uploaded on the CaseLines electronic platform. The date for hand-down is deemed to be 19 December 2025. sino noindex make_database footer start