Blyde River Walk Estate Homeowners Association and Others v Mabaso and Others (2022/16326) [2025] ZAGPJHC 995 (12 September 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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 995 | Noteup | LawCite sino index ## Blyde River Walk Estate Homeowners Association and Others v Mabaso and Others (2022/16326) [2025] ZAGPJHC 995 (12 September 2025) Blyde River Walk Estate Homeowners Association and Others v Mabaso and Others (2022/16326) [2025] ZAGPJHC 995 (12 September 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_995.html sino date 12 September 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 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, JOHANNESBURG) Case No: 22/16326 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: YES (3) REVISED: NO IN THE MATTER BETWEEN: THE BLYDE RIVER WALK ESTATE FIRST APPLICANT HOMEOWNERS ASSOCIATION BALWIN PROPERTIES SECOND APPLICANT (Registration Number:  2003/028851/06) RONEWA MUDAU THIRD APPLICANT AND KHOSI MABASO N.O FIRST RESPONDENT THE COMMUNITY SCHEMES OMBUD SECOND RESPONDENT SERVICE BELINDA TSHEHLA AND 84 OTHERS THIRD TO EIGHTY-FOURTH RESPONDENTS JUDGMENT This Judgment is handed down electronically by circulation to the Applicant’s Legal Representative and the Respondent’s Legal Representative by email, publication on Case Lines. The date for the handing down is deemed 12 September 2025 at 14h00. NAIR AJ INTRODUCTION: [1]  This is an application in which the applicants seek that the operation of the adjudicators order dated 11 January 2022, annexed as “FA1” to the applicants’ founding affidavit is stayed (the “stay application”) pending the appeal against the adjudicators order. In the alternative the applicants seek that the operation of paragraph 147.4 of the adjudicators order granted on 12 January 2022, annexed as “FA1” to the applicant’s founding affidavit is stayed pending the applicant’s appeal against the adjudication order. THE PARTIES: [2]  The founding affidavit of the applicants was deposed to by Rochelle Brink.  She is a trustee of the first applicant and an employee of the second applicant.  The first applicant is the Blyde Riverwalk Home-Owners Association (the “HOA”),  duly constituted on 18 October 2017 in terms of section 1.1.3 of its constitution.  The HOA’s principal place of business is at the Blyde Sectional Titles Scheme (the “Blyde Scheme”)  situated at B[…] Road, Swartkoppies.  The Blyde Scheme has a managing agent to assist with the day-to-day administration of the Scheme which the applicants allege falls under regulation 30(2)(6) of the Sectional Titles Act 95 of 1986 (the “ Sectional Titles Act&rdquo ;).  I pause to mention that the Sectional Titles Act initially governed all aspects of the sectional title schemes, including management and conveyancing and although not repealed in totality has been amended several times to clarify and update its provisions. The Sectional Titles Schemes Management Act 8 of 2011 (the “STSMA”) was enacted to streamline the management and administration of sectional title schemes and has accompanying regulations which came into effect on 7 October 2016.  Regulation 6(4)(b) is the corresponding regulation in  the STSMA to regulation 30(2)(b) of the Sectional Titles Act to which the applicants refer to in their founding application.  The appointed managing agent is Landsdowne Property Group (referred to as “Landsdowne”).  The second applicant Balwin Properties Limited (referred to as “Balwin”) is the company responsible for the development of the Blyde Scheme.  The third applicant Ronewa Mudau is the owner of unit 160 of the Blyde Scheme and an affected person as contemplated in section 57 (1) of the Sectional Titles Act. [3 ]  The first respondent is the adjudicator (the “adjudicator”) that was appointed by the second respondent, The Community Schemes Ombud Service (“CSOS”), to adjudicate the dispute filed by the third to eighty fourth respondents in terms of section 50 of the Community Schemes Ombud Services Act 9 of 2011 (the “CSOS Act”).  The first respondent filed a notice of intention to abide by the court’s decision.  The dispute was registered under CSOS 3272/GP/21 (the “dispute”).  The third respondent was the applicant in the dispute which formed the subject matter of the adjudication proceedings presided over by the first respondent.  The remaining fourth to eighty-fourth respondents were the other applicants in the dispute and allege that they were the owners of sectional title units in the Blyde Scheme and members of the HOA.  The third respondent did not file any notice of intention to oppose the application but the reason for this is set out later in this judgment.  The fourth to eighty fourth applicant’s oppose this application. [4]  It is alleged by the applicants that the fourth to eighty fourth respondents do not reside permanently at the Blyde Scheme but let out their units on a short-term letting basis (referred to as “STL”).  The applicants allege that the third to eighty fourth respondents did not prove ownership and membership in the Blyde Scheme at the adjudication and thus did not prove their locus standi at the adjudication proceedings.  I shall refer to the third to eighty fourth respondents jointly as the “STL owners”.  The first respondent delivered the adjudication order, dated 11 January 2022, on 12 January 2022 (the “adjudication order”) which is annexed as “FA1” to the applicants’ founding affidavit.  The applicants lodged a notice of appeal timeously against the adjudication order on 11 February 2022. APPLICATION FOR JOINDER OF ABRAHAM JACOBUS LE ROUX: [5]  On 5 May 2025, Mr Given Terrance Mpho Mohale, lodged an application to intervene as a respondent in the stay application.  Similarly on 14 May 2025 only three court days before the hearing of this application Mr Abraham Jacobus Le Roux lodged an application to be joined as a party to the stay application.  Mr Phala who appeared for the STL owners also appeared in the joinder applications on behalf of Mr Mohale and Mr Le Roux.  Counsel for the second and third applicants submitted that it is not necessary to entertain the joinder applications of Mr Mohale and Mr Le Roux as they were already respondents in the stay application and dispute filed at CSOS as per the annexure attached to the applicant’s founding affidavit on 001-64 to 001- 67 of the record.  Mr Abraham was the sixth applicant in the CSOS dispute proceedings and therefore the eighth respondent in the present stay application.  I agree that Mr Le Roux’s joinder application must fail as he is already a respondent to the stay application and his application to be joined to the proceedings is superfluous and is dismissed. [6]  From the papers filed on record before me Mr Mohale was not a party to the CSOS dispute registered under CSOS 3272/GP/21 which forms the basis of the current stay application.  Mr Mohale asserts that CSOS order with CSOS reference 1374/GP/2023 dated 26 July 2023, CSOS order with CSOS reference 1393/GP/23 dated 28 July 2023 and CSOS order with CSOS reference 1389/GP/23 dated 7 August 2023 are CSOS orders which are yet to be reviewed and should be filed as part of the current stay application. [1] Mr Mohale contends that these aforementioned CSOS orders confirm the first respondent’s adjudication order which is the subject matter of this stay application.  He submits that owing to the fact that the current matter under CSOS reference 3272/GP/21 was made an order of the High Court that the High Court order cannot be stayed through CSOS Rules.  Mr Mohale did not indicate in his founding affidavit when he became aware of the CSOS dispute under CSOS reference 3272/GP/21 and why he never requested to be joined in the proceedings before the first respondent at the CSOS dispute.  He merely indicates that he is a short-term letting owner in the Blyde Scheme and has a material interest in the stay application as a result thereof.   It also does not appear from the papers before me that Mr Mohale was a party to the CSOS cases with CSOS reference 1374/GP/2023 dated 26 July 2023, CSOS reference 1393/GP/23 and CSOS reference 1389/GP/23.  I cannot find that he be allowed to include papers in this stay application from these aforementioned CSOS matters that he was not a party to. The application to CSOS by the STL owners in my view was a widely spread issue in the Blyde Scheme and on the probabilities of the case the application of the STL owners’ at the CSOS dispute proceedings under CSOS reference 3272/GP/21 would have come to Mr Mohale' attention.  He has not provided any evidence otherwise. [7]  It is also interesting to note that the applicants filed their heads of argument in the matter on 6 June 2023 and that the STL owners only filed their heads of argument in this matter on 14 May 2025 some three days before the hearing of the stay application and in non-compliance with Consolidated Practice Directive 1/2024 of the Gauteng Division of the High Court (“Practice Directive 1/2024”). [2] In addition to this the STL owners as well as Mr Mohale who lodged the application for joinder failed to hold a pre-trial with the applicants and to file a joint practice note in compliance with directive 25.17 and 25.18 of the Practice Directives 1/2024.  The STL owners further wished to hand in supplementary affidavits on the day of the hearing of the matter which clearly indicated to court a tendency by the STL owners to flagrantly disregard the time limits laid down by this court for the proper hearing of the stay application. [8]  The test for joinder requires that a party who has a legal interest in a matter which may be prejudicially affected by the court’s order should be joined in the matter. [3] It has been argued that Mr Mohale’s rights and interests will be severely prejudiced by any order made without his participation and that he will bring about critical submissions regarding developments in the Blyde Scheme HOA, including allegations of contempt of court committed by the first and second applicants. [9]  While I am mindful that Mr Mohale is a short-term letting owner in the Blyde Scheme and that he may have a legitimate interest in the outcome of the stay application, his request to join these stay proceedings as a respondent was only lodged on 5 May 2025 some ten court days prior to the hearing of the stay application.  The stay application having been on the unopposed roll for the first time on 19 October 2022.  The STL owners launched their application in terms of section 43 of CSOS Act on 7 September 2021.  Mr Mohale provides no explanation why his application to join as a respondent in the stay application was only lodged on 5 May 2025 and does not address the further delay that his joinder application may have in the stay proceedings as well as the potential prejudice to the applicants and the respondents of the stay application should he be allowed to join as a respondent.  Mr Mohale provided no proof of service of his application on the first and second respondents who were not before court at the hearing of the stay application. He also provides no reasons as to why he did not request to join the CSOS dispute proceedings before the first respondent earlier after the STL owners lodged the application on 7 September 2021 at CSOS.  This is especially important when considering that his allegation that his rights and interests will be severely prejudiced by any order made without his participation.  In my view his rights and interests would have been affected on his version at the commencement of the 2020 conduct rules.  He has thus failed to show good cause why he should be joined to the stay application at the proverbial eleventh hour or the actual prejudice that he will suffer. [10]  The argument in the heads of argument of the fourth respondent that Mr Mohale has submissions regarding developments in the HOA, including allegations of contempt of court committed by the first and second applicants cannot hold.  Firstly, because in terms of section 57 of the CSOS Act an appeal by the parties can only be lodged in respect of a point of law and not on the facts.  This by implication means that no new facts regarding the CSOS dispute other than the facts tendered at the dispute proceedings at CSOS can be considered at the stay proceedings.  Thus any new facts sought to be introduced by Mr Mohale regarding the further developments in the HOA would have little or no weight on the outcome of the stay application as these facts were not considered by the adjudicator in the dispute proceedings.  The only facts which may have some bearing on the counter application lodged by the fourth to eighty-fourth respondents is in respect of the alleged contempt of court committed by the first and second applicants.  The first and second respondents were not served with the application to join Mr Mohale to the stay proceedings so as to be provided with an opportunity to respond thereto.  Secondly, the aspect regarding Mr Mohale making submissions on the contempt of court of the CSOS adjudicator’s order by the first and second applicants also cannot hold water for reasons which I will set out later in this judgment when dealing with the issue of contempt of court allegedly committed by the first and second applicants.  I am of the view from what is set above and from what I will set out below that the application for joinder of Mr Mohale as a respondent in the stay application must be dismissed. [11]  I indicated earlier that the STL owners wished to hand in supplementary affidavits on the day of the hearing.  Given the clear disregard by these respondents to time limits for the filing of papers and Practice Directive 1/2024, the request by the STL owners to hand in supplementary affidavits was refused. [12]  I will turn now to deal with the background of the matter which ultimately resulted in the stay application that I am called upon to decide on. BACKGROUND OF CASE: [13]  This matter involves a dispute regarding validity and regulation of the STL in the Blyde Scheme which is a known lifestyle estate situated in Pretoria.  STL involves the short-term letting out of units by STL owners as commercial businesses offering holiday accommodation.  This holiday accommodation would usually be over a day or two and generally less than a month.  At the inception of the Blyde Scheme the vision of the developer was for the Blyde Scheme to be a family orientated lifestyle estate where families enjoy the various amenities which include the outdoors, beach and water activities in a safe and secure environment.  The applicants contend that the Blyde Scheme has 24/7 state of the art security system with biometric access ensuring the safety and security of all its residents.  Currently phases 1 to 14 of the Blyde Scheme have been completed consisting of 1157 units.  It is envisaged that on completion of the Blyde Scheme there will be 3281 units.  The Blyde Scheme would be developed in approximately 49 phases with a crystal-clear lagoon totalling the size of two rugby fields.  This all with a view “ to bring the beach to Pretoria ” for clients and families of Balwin who love water-sports.  The applicants allege that it is for this reason that the “ public access lagoon ” deal structure was not pursued with Crystal Lagoons B.V who own the intellectual property in relation to the crystal lagoon concept. [14]  The applicants contend that Balwin elected to pursue the route where the crystal lagoon is made available within the Blyde Scheme for its residents only and not for the use by the public as the Public Access Lagoon.  Balwin allege to have further negotiated with Curro Schools to establish a school adjacent to the Blyde Scheme on a property which was sold to Curro by Balwin in order to make school fees feasible.  Balwin is further negotiating with Montessori School operator to provide a school adjacent to the Blyde Scheme for minor children.  The first occupation of a unit at the Blyde Scheme took place in 2018.  The crystal lagoon was completed and opened to members of the HOA during September 2018.  A copy of the sale agreement with the third respondent is marked as “FA3” to the applicant’s founding affidavit. [4] [15]  It is alleged by the applicants that the STL owners now use their units in the Blyde Scheme for investment and commercial purposes only letting them out as holiday accommodation as STL.  The applicants contend that this causes conflicts as holiday makers renting these units (usually for a period of 1 to 3 days) do not adhere to the rules and family ethos that was envisaged and which the HOA seeks to maintain and preserve.  The applicants allege that the holiday makers are only there to have a good time for their short stays and are unperturbed by the consequences of their actions to those around them as they will simply leave once their STL period is over.  As a consequence thereof the HOA has had to deal with endless complaints from residents in regard to the disruption caused by those holiday makers who are at the Blyde Scheme for short periods of time with the intent of partying and having a good time.  The applicants contend that the conduct of short-term occupants is often difficult to curb as these occupants are not easily subjected to fines or other disciplinary processes.  As a result thereof the HOA has passed a series of conduct rules to regulate the nature and extent of the STL at the Blyde Scheme. [16]  The HOA introduced Rule 21.4 of the 2018 conduct rules.  The applicants allege that the provisions of Rule 21.4 permits STL with the said conduct rule requiring the following: a)  notice of the short-term lease to Landsdowne; b)  that persons under the age of 21 years old be accompanied by an adult of not less than 21 years of age; c)  adherence to the conduct rules by all persons occupying the unit. [17]  The STL owners were required since the end of 2018 to sign an acknowledgment that they intend to operate an STL unit (referred to as “STL 1 agreement”).  The STL 1 agreement of the fifth respondent dated 19 November 2019 is annexed as “FA5” to the applicants’ founding affidavit and encapsulates the terms of the STL 1 agreement with other STL owners. [5] The STL 1 agreement was confirmed by the STL owners in their application and by the adjudicator in paragraph 24.7 of the adjudication order.  The applicants allege that the STL owners in clause 16 of the STL 1 agreement agreed to the following: “ I acknowledge and agree that The Blyde Conduct rules, Lifestyle Centre Rules, Crystal lagoon Rules and Air-BnB Regulations are subject to amendment from time to time and any such amendment will be enforceable against me and my occupants/ guests/ visitors.” [18]  In 2020 there was a sharp increase in STL during Covid-19 lockdown and the Blyde Scheme was seen as a destination providing Gauteng residents with a “ beach holiday ”.  The influx of holiday makers in July 2020 or August 2020 resulted in a rise in complaints by permanent residents and owners of the Blyde Scheme.  The complainants emanated from unruly behaviour and poor conduct of STL occupants which made permanent residents and owners feel compromised.  This resulted in the HOA being required to deploy additional resources at an additional cost to the HOA for the Blyde management and security over weekends. [6] The complaints received were inter alia the following: [18.1]  residents are unable to utilise their own spaces/ facilities because STL letting; [18.2]  No Covid-19 protocol is followed, therefore residents health and               wellbeing are put at risk’ [18.3]  noise pollution [18.4]  Residents have to pay a R200,00 fees in order to use the crystal lagoon facility where STL occupants do not have to pay the fee; [18.5]  Security issues generated by the STL occupants, making the residents feel unsafe; [18.6]  STL occupants are parking residents in so that residents are unable to leave their units / their parking bays; [18.7]  TL occupants approach the residents and request them not to report their noise complaints and thus residents feel threatened / unsafe; [18.8]  STL occupants create a mess on the resident’s doorsteps by spilling beverages/ alcohol; [18.9]  Overcrowding / too many people staying in one unit, exceeding the unit capacities; [18.10]  residents experiencing traffic congestion within the Blyde due to STL occupants blocking residents in; and [18.11]  harassment and overcrowding in the crystal lagoon; and [18.12]  raucous behaviour. [19]  It is alleged by the applicant’s that the STL owners have since 2019 signed the STL 1 agreement and have had no issues in doing so. [7] In order to enforce stricter management of the STL in respect of the Blyde Scheme as a result of the complainants received, a notice of special resolution was sent to all members prior to convening the AGM held on 30 September 2020.  The notice proposed that Rule 21.4 of the 2018 conduct rules relating to STL would be amended if the special resolution was passed. [8] Rule 21.4 of the 2018 conduct rules was subsequently amended at the AGM on 30 September 2020 after receiving a 75% majority vote. [9] The applicants contend that the entitlement to amend and vary rules is contained in the HOA constitution as well as in the sale agreement when the owners acquire a unit.  Due to the issues and difficulties experienced with the 2018 conduct rules, the 2020 conduct rules were put in place on 30 September 2020 at the AGM (the “2020 conduct rules”).  A copy of the 2020 conduct rules was marked as “FA6” to the applicant’s founding affidavit.  The 2020 conduct rules were approved by CSOS on 15 December 2021 as per “FA7” to the applicant’s founding affidavit in terms of section 4(1)(c) of the Community Schemes Ombud Services (the “CSOS Act”). [10] [20]  The amended Rule 21.4 of the 2020 conduct rules provided as follows: “ 21.4.1 No letting for a period less than 3 (three) months shall be allowed whatsoever, without the prior consent of the Trustees, which will not be unreasonably withheld.  The owner shall be obliged to notify the Trustees of any short-term occupancy for security of purposes and the owner shall require such written consent prior to allowing any such person access into the complex. 21.4.2 Short-term letting of a unit will be subject to such terms and conditions and/or regulations as imposed by the developer and/or Trustees, from time to time should the developer and/or Trustees elect to allow short-term letting. 21.4.3 Notwithstanding any other rule contained herein, any owner who contravenes this rule shall be liable for a penalty equal to 90% of the monthly levy.” [21]  On 7 September 2021 the STL owners which were the third to eighty-fourth respondents launched their application in terms of section 43 of the CSOS Act challenging the 2020 conduct rules which came before the first respondent who was the adjudicator in the matter.  Numerous relief was sought by the STL owners in their application to the adjudicator in respect of the 2020 conduct rules of the Blyde Scheme but not all were successful as is apparent from the adjudicator’s order. [11] On 21 October 2021 the adjudicator granted leave to parties to supplement papers which the parties duly did.  During the time between the adjudicator’s order granting the parties the opportunity to supplement their papers and the hearing of the matter the parties attempted to resolve their issues but this was without success.  The applicants allege that further complaints were received by permanent residents and that a special general meeting was called by the Trustees of the Blyde Scheme to propose a complete prohibition on STL.  The complainants regarding STL escalated to such a state that the third applicant, Ronewa Mudau, lodged an application before CSOS to ban STL.  The application of the third applicant at CSOS was dismissed by the adjudicator as the CSOS adjudicator in the matter found that the members of the HOA had the required majority vote at a quorate meeting, reached a decision on the STL in respect of the 2020 conduct rules and that this decision must be respected by the third applicant.  This was prior to the amendment of the 2020 conduct rules prohibiting STL. [22]  On 23 July 2021 the first applicant sent to home-owners a memorandum titled “STL Management” with an additional contract being “STL 2” to the memorandum.  On 29 July 2021 the STL owners lodged another complaint to CSOS (the “CSOS second application”).  The notice of the proposed special general meeting was alleged by the applicant to have been sent 30 days prior to the meeting together with the proposed amended Rule 24.1 of the 2020 conduct rules prohibiting STL.  The special general meeting did not proceed via MS Teams on 11 October 2021 due to disruptions and a lack of a quorum and was adjourned by the chairman to 14 October 2021.  The Blyde Scheme home-owners were notified via email of the adjourned meeting on 12 October 2021.  On 14 October 2021 the applicant alleges that the special general meeting was reconvened, was quorate and that by special resolution with 92,48% the votes cast in favour of the amended rule 21.4 banning the STL in its entirety (the “2021 conduct rules”).  The applicants further allege that only 7.16% voted against the amendment and 0.36% abstained.  The votes were subsequently audited by Van Sitterts Auditors and was not disputed by the respondents. [23]  After both parties duly supplemented their papers the matter came before the adjudicator who is the first respondent in this matter.  The first respondent heard the argument presented by both parties and granted the adjudication order annexed a “FA1” to the applicants papers on 12 January 2022.  The applicant contends that the first respondent granted far reaching relief which included the following: [23.1]  the relief sought in terms of section 39(4)(b) of the CSOS Act for an order declaring that the general meeting held on 14 October 2021 was not validly convened, is granted. [23.2]  the relief sought in terms of section 39(4)(c)(i) of the CSOS Act for an order declaring that the resolution passed at the general meeting held of 14 October 2021 to amend clause 21.4 of the 2020 conduct rules is void, was granted. [23.3]  the relief sought in terms of section 39(3)(d) of the CSOS Act for an order declaring that the Blyde Scheme governance provision clause 21.4 of the 2020 conduct rules, having regard to the interests of all owners and occupiers in the scheme, is unreasonable, was granted. [23.4]  the HOA was ordered in terms of section 39(3)(d)(iii) of the CSOS Act to amend clause 21.4 of the 2020 conduct rules by approving and recording a new clause identical to clause 21.4 of the 2018 conduct rules to bring the offending clause in line with the spirit and purport of the STSMA and the Constitution of the HOA. PURPOSE OF APPLICATION: [24]  The applicants contend that the purpose of this application is to, pending the appeal of the adjudication order, ensure that the majority rule principle that binds the members of the HOA is given effect to: [24.1]  if not by ensuring there is no STL as was resolved in terms of the 2021 conduct rules amendment, as the applicants have been advised that STL is in any event unlawful; [24.2]  that at the very least by preserving the status quo as it existed for about a year prior to the adjudicator’s order by having the 2020 conduct rules, previously approved by CSOS, remain intact and enforceable pending the outcome of the appeal. [25]  The applicants allege various grounds of appeal which they intend on arguing before the court of appeal, which include unlawfulness, functus officio, time barring, reasonableness and Balwin’s development rights.  The STL owners have filed their notice of intention to oppose the appeal lodge by the applicants.  Subsequently there have been disputes over procedural, technical and practical aspects regarding the transcriptions of the record of proceedings before the first respondent and disagreements as to security for costs in the appeal.  In light of this the STL owners caused the first respondent’s adjudication order to be lodged at the Gauteng Division of the High Court, Pretoria and was made an order of court on 26 May 2022 in terms of section 56(2) of the CSOS Act, under case number 28916/2022. [12] This was after the applicants lodged a notice of appeal timeously against the adjudication order on 11 February 2022. [26]  It is common cause between the parties that they have been unable to mediate this matter but that the applicants remain open to mediation. [13] The applicants also contend in the replying affidavit that the STL owners are currently still being permitted to continue with STL in accordance with the STL agreements that are in existence between the parties. [14] The applicants’ further submit that one of the issues in this application is the City of Tshwane's Land Use Scheme (“the Tshwane Land Scheme") which was at all material times, the Land Use Scheme in operation and governs the uses to which sectional title units at The Blyde Scheme may be put, such as to which land and buildings erected on land may be put. [27]  The applicants’ argue that the Tshwane Land Use Scheme was created in terms of the Spatial Planning and Land Use Management Act, 2013 ( "SPLUMA" ).  The applicants’ further argue that SPLUMA, together with the Land Use Scheme prescribe restrictively the uses to which land and buildings erected on land may be put to use. Unless a particular use is expressly, or by necessary implication permitted, in terms of the Tshwane Land Use Scheme it is prohibited.  As such they contend that an adjudicator appointed to resolve a dispute between members of a sectional title scheme must be cognisant of and have due regard to all other laws that regulate the use of the land and buildings comprising the sectional title scheme.  They argue that the first respondent failed to do this in the present case. CONDONATION FOR THE LATE FILE OF THE STL OWNERS’ ANSWERING AFFIDAVIT: [28]  When the applicants launched their application the respondents, initially, failed to oppose it and it was enrolled for hearing on the unopposed motion court roll of 19 October 2022.  On 18 October 2022, the day before the hearing and without a notice of intention to oppose having been delivered, the STL owners delivered their counter-application and answering affidavit seeking condonation of the late filing of the STL owners answering affidavit. [15] This occasioned the postponement of the hearing of the application. [29]  The fourth to eighty-fourth respondents answering affidavit was deposed to by Meneer Advocate Mokgalaka, wherein reference is made to eighty-seven respondents. On the papers before me the first, second and third respondents were the adjudicator, CSOS and Belinda Tshehla respectively. The fourth to eighty-fourth respondents are the respondents listed in the schedule attached to the applicants’ founding papers at 001-64 to 001-67 of the court bundle. [16] The third respondent in this matter, Belinda Tshehla, was the 1 st applicant in the CCOS adjudication matter and thereafter the respondents would follow from the fourth to eighty seventh respondents in sequence as referred to in the annexure attached to the applicant’s papers on 001-64 to 001- 67 of the court bundle.  The third respondent as well as the fourth to eighty-fourth respondents are alleged owners in the Blyde Scheme and the parties who were before the adjudicator in the adjudication hearing at CSOS.  The fourth to eighty-seventh respondent’s as their opposing affidavit is titled requested condonation in terms of Rule 27 of the Uniform Rules of Court for the late filing of their opposing papers.  The reasons for the application for condonation was that the third respondent, Mrs Belinda Tshehla, who was the owner of Unit 210 at the Blyde Scheme, a member of the Short-Term Letting Forum and the main applicant in the adjudication order, was the intended deponent to the present answering affidavit on behalf of the Short-Term Letting Forum but has since passed away on 14 September 2022. [17] The answering affidavit was finalised by Meneer Advocate Mokgalaka, who took over after her death.  At the hearing of the application the applicants’ granted the request for condonation for the late filing of the fourth to eighty-seventh respondents ( continued as the “STL owners”) answering affidavit. STL OWNERS’ COUNTER APPLICATION: [30]  The STL owners also made a counter-application which the applicants and the first, second and third respondents opposed.  The first, second and executor of the third respondents did not however file any opposing papers to the STL owners counter application.  The STL owners in the counter application requested the following: [30.1]  To strike out paragraphs 25 - 27; 32 - 34; 42 - 45; 62 - 64; 92.4 - 92.5; 92.9 - 92.10; 93.3 – 93.6; 94.10; 95 and 109 of the applicant’s founding affidavit as it is vexatious, and/or irrelevant and/or scandalous in terms of Rule 6(15) of the Uniform Rules of Court; [30.2]  Declaring the first applicant (The Blyde Riverwalk Estate Homeowners Association), and the second applicant (Balwin Properties Limited) to be in contempt of the adjudication order issued on 11 January 2022 and granted on 12 January 2022 in terms of section 54 of the CSOS Act under CSOS Reference Number 3372/GP/21, and lodged at the Gauteng Division of the High Court, Pretoria, on 26 May 2022 where it was registered as an order of court in terms of section 56(2) of the CSOS Act, under case number 28916/2022; [30.3]  The first and second applicants are ordered to comply with paragraph 147.2, 147.3 and 147.4 of the adjudication order issued on 11 January 2022 and granted on 12 January 2022 in terms of section 54 of the CSOS Act under CSOS Reference Number 3372/GP/21, within 15 days of the granting of this order; [30.4]  In the alternative to prayer 3 above, pending the determination of the appeal in terms of section 57 of the CSOS Act that the first and second applicant are precluded from governing the scheme with respect to short term letting, other than as provided for by clause 21.4 of the 2018 Conduct Rules. [31]  The deponent to the STL owners’ answering affidavit was, Meneer Advocate Mokgalaka who is a member of the Blyde Scheme HOA.  He is the 12 th applicant in the CSOS dispute and the 14 th respondent in this application.  He is also a member, and Chairperson of the Short-Term Letting Forum, a forum of members of the first applicant who are engaged in STL.  He stated in his affidavit that with the appeal process stalled, the stay application has not been actively prosecuted by the applicants, and there was no pending mediation. There was consequently no basis whatsoever for the first and second applicants to have not complied with the adjudication order granted by the adjudicator and the High Court order of 26 May 2022.  The STL owners did not deliver any replying affidavit to the court in respect of their counter application. [32]  Mr Mokgalaka further stated in his affidavit that a right of appeal against an adjudication order in terms of Section 57(1) of the CSOS Act is strictly limited only to questions of law which implies that the factual findings of the first respondent are final and binding on all the parties and cannot be reconsidered in any subsequent proceedings. [18] He raised the argument that a stay application in terms of Section 57(3) of the CSOS Act is intimately tied to the merits of the appeal. [33]  It is the STL owners’ submission that with the exception of Mr Isaac Zulu whose application was dismissed by the first respondent on grounds of locus standi , that all the other applicants in the CSOS adjudication were successful. It was further argued that the ownership of units in the Blyde Scheme by these STL owners (with the exception of Mr Zulu) and membership of the STL owners in the first applicant was not disputed at all by the applicants in the section 38 CSOS adjudication proceedings.  It was submitted on behalf of the STL owners that the locus standi of the STL owners (with the exception of Mr Zulu) is a common cause fact.  The argument by the applicants however clearly indicated that the locus standi of the STL owners at the CSOS hearing was in dispute. [19] [34]  The STL owners further agree that it is common cause that from time to time they make their units available for short-term letting. They contend that the characterisation of the Blyde Scheme as a family orientated lifestyle estate is a factual issue that has been definitively decided against the applicants by the first respondent at the CSOS adjudication proceedings. The first respondent found the Blyde Scheme to be a leisure holiday resort lifestyle estate in which the presence of non-permanent residence is the norm.  The first respondent further found that loud and unruly behaviour as well as overcrowding cannot only be attributed to short-term letting guests alone, and that ordinary residents of the Blyde are equally if indeed not more responsible for noise and overcrowding at the Blyde Scheme. [35]  The STL owners also asserted that STL is a lawful use of their property and that the HOA’s restrictions are unreasonable and unlawful. They challenged the validity of meetings held in October 2021, which were used to amend the 2020 conduct rules.  They argued that the adjudicator found in their favour in this regard.  They also raised concerns about the construction of a hotel by Balwin Properties, allegedly without proper consultation or approval. [36]  It was also argued on behalf of the STL owners that neither the issue of SPLUMA, nor the Tshwane Land Scheme was canvassed in the CSOS adjudication proceedings before the first respondent and that this does not find application for the purpose of prosecuting the appeal.  The respondents argue that clause 14(3) of the Tshwane Land Scheme, and Table B(3) thereof specifically provides for dwelling units, guest houses, parking site and residential building as purposes for which the buildings may be erected or used or land used.  It was the respondents’ contention that there is nothing in either SPLUMA or the Tshwane Metropolitan Land Use Scheme that precludes the respondents from having lodgers or tenants at their property. STRIKING OUT APPLICATION: [37]  The STL owners allege that the first respondent has in the section 38 CSOS Act proceedings conclusively and correctly determined as a matter of fact that loud and unruly behaviour as well as overcrowding cannot only be attributed to short-term letting guests, and that ordinary residents of the Blyde are equally if indeed not more responsible for noise and overcrowding at the Blyde Scheme.  Mr Phala, for the STL Owners argued that any attempt to deal with the factual findings of the adjudicator other than from the perspective that such findings are correct and binding stand to be struck out in terms Uniform Rules of Court 6(15) as vexatious and/or irrelevant and/or scandalous.  As a consequence thereof they request that paragraphs 25 – 27; 32 – 34; 42 – 45; 62 – 64; 92.4 - 92.5; 92.9 - 92.10; 95 and 109 of the applicants’ founding affidavit be struck out. [20] [38]  An application to strike out any matter from an affidavit is regulated by Rule 6(15) of the Uniform Rules of Court, which read as follows: “ The court may on application order to be struck out from any affidavit any matter which is scandalous, vexatious or irrelevant, with an appropriate order as to costs, including costs as between attorney and client. The court may not grant the application unless it is satisfied that the applicant will be prejudiced if the application is not granted.” [39]  Mahomed CJ in Beinash versus Wixley [21] had the following to say: “ What is clear from this Rule is that two requirements must be satisfied before an application to strike out matter from any affidavit can succeed. First, the matter sought to be struck out must indeed be scandalous, vexatious or irrelevant. In the second place the Court must be satisfied that if such matter was not struck out the parties seeking such relief would be prejudiced.” [40]  Firstly, the STL owners contend that any attempt to deal with factual findings of the first respondent other than from the perspective that such findings are correct and binding stand to be struck out in terms Uniform Rules of Court 6(15) as vexatious and/or irrelevant and/or scandalous. [22] The STL owners do not set out which facts in the affidavit specifically are scandalous, vexatious or irrelevant but seem to suggest that all the facts dealt with by the first respondent in the dispute proceedings are in general scandalous, vexatious or irrelevant.  I cannot agree with this suggestion.  Whether the first respondent enjoyed the power to act as the first respondent did, or whether the first respondent acted fairly or rationally or upon relevant considerations or was biased are all matters that cannot be determined alone on the basis that the first respondent made an error of law. [23] In my view the hearing of the stay application cannot be dealt with adequately without some consideration of the facts that were placed before the first respondent at the CSOS dispute proceedings. I am mindful that whilst having regard to those facts, an appeal in terms of section 57 of the CSOS Act is only in respect of a point in law.  In my view a point in law emanates from facts that were decided on by the first respondent and the said points in law cannot be dealt with in isolation from the facts placed before the first respondent at the dispute proceedings.  One has to have consideration of the facts to consider the applicable point in law to be decided on in the appeal proceedings. [41]  Secondly, the STL owners were required to allege and prove that if any facts considered at the dispute proceedings and referred to in the applicants founding affidavit were not struck out that the STL owners would suffer prejudice.  The STL owners have failed to set out any prejudice that they may suffer if the portions of the applicants founding affidavit they sought to strike out are not struck out.  In  the premises the STL owners counter-application to strike out portions of the applicants’ founding affidavit must fail and is dismissed. CONTEMPT OF COURT APPLICATION: [42]  The STL owners alleged that the managing agent of the first applicant acting on the instructions of the second applicant has, and still is restricting and indeed outright refusing to allow members of the HOA to engage in STL in contravention of the first respondents adjudication order issued on 11 January 2022 and handed down on 12 January 2022 as well as the High Court order. [24] The applicants deny being served with any such orders. [43]  In our law, the effective date of an adjudication order is typically the date it is issued or delivered by the adjudicator, which in this case the date of issue of the first respondent’s adjudication order was 11 January 2022 and the date of delivery was 12 January 2022.  The first respondent’s decision was intended to be implemented immediately thereafter.  In order to enforce the adjudicator’s order section 56 (2) of the CSOS Act applies.  Section 56 (2) of the CSOS Act provides that “ if an 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 the Court must, on lodgement of a copy of the order, register it as an order in such court.” [44]  In Fakie N.O. versus CCII Systems Pty Limited [25] the court summarised the general requirements of civil contempt proceedings as follows: "42. To sum up: 1. The civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements. 2. The respondent in such proceedings is not an ‘accused person’, but is entitled to analogous protections as are appropriate to motion proceedings. 3. In particular, the applicant must prove the requisites of contempt (the order; Service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt. 4. But once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt. 5. A declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities." [45]  The plain and simple interpretation of the wording of section 56(2) of the CSOS Act implies that where the adjudicator grants relief which is beyond the jurisdiction of the Magistrates Court that the enforcement of the adjudication order only comes into existence once it is lodged with registrar of the High Court who registers it as an order of court.  The further requirement is that the High Court order must be brought to the attention of the opposing party before contempt of court proceedings can be raised.  It is common cause that the High Court order was never served on the respondents and that this order was obtained after the applicant’s lodged their notice of appeal on 11 February 2022.  The STL owners have further failed to prove wilfulness and malafides on the part of the first and second applicants in failing to comply with the adjudication order.  In this regard I repeat that the application of Mr Mohale to intervene as a party in the matter was refused and his averments regarding the alleged contempt of court by the first and second applicants were not allowed as a result thereof.   In my view the STL owners’ counter application to hold the first and second applicants in contempt of court of failing to comply with the first respondent’s adjudication order must also fail. ISSUE TO BE DETERMINED: [46]  The founding affidavit, answering and replying affidavits deal largely with the grounds and merits of the matter on appeal and I do not deem it necessary to delve into each and every argument that will be argued on appeal by the parties. At this stage what I am called upon to decide on is whether there is merit in the application to stay the adjudication order granted on 12 January 2022, annexed as “FA1” to the applicants founding affidavit pending the appeal against the adjudicators order. In the alternative whether the operation of paragraph 147.4 of the adjudicators order granted on 12 January 2022, annexed as “FA1” to the applicant’s founding affidavit is stayed pending the applicants’ appeal against the said adjudication order. LEGAL PRINCIPLES: [47]  In terms of Rule 45A of the Uniform Rules of the High Court, a court may, on application, suspend the operation and execution of any order for such period as it may deem fit: Provided that in the case of an appeal, such suspension is in compliance with section 18 of the Superior Courts Act. [48]  The applicants bear the onus on a balance of probabilities to prove that they are entitled to the relief which they seek.  There is a dispute on the papers as to whether the appeal lodged by the applicants’ in terms of section 57(3) of the CSOS Act relates to a question of fact or a question of law.  There is also a dispute as to whether the first respondent was obliged to consider SPLUMA  and the Tshwane Land Scheme when granting the adjudication order.  Further disputes arose as to whether the first respondent granted an order outside the scope of what the first respondent was required to decide upon and which the first respondent was mandated in law to grant. The applicant contends that the first respondent acted outside the scope of the arbitrator’s mandate whilst the STL owners contend that the first respondent acted within the arbitrator’s mandate. [49]  In Plascon-Evans Paints Ltd versus Van Riebeeck Paints (Pty) Ltd [26] the Court held the following when dealing with matters involving a dispute of fact: “ Ordinarily, the Court will consider those facts alleged by the applicant and admitted by the respondent together with the facts as stated by the respondent to consider whether relief should be granted. Where, however, a denial by a respondent is not real, genuine or in good faith, the respondent has not sought that the dispute be referred to evidence, and the Court is persuaded of the inherent credibility of the facts asserted by an applicant, the Court may adjudicate the matter on the basis of the facts asserted by the applicant.” [50]  In terms of section 50 [27] of the CSOS Act an adjudicator must investigate an application to decide whether it would be appropriate to make an order, and in this process an adjudicator must observe the principles of due process of law; and must act quickly and with as little formality and technicality as is consistent with the proper consideration of the application; and must consider the relevance of all evidence, but is not obliged to apply the exclusionary rules of evidence as they are applied in the civil courts. [28] [51] The functions of bodies corporate are set out in Section 3 of the STSMA as follows: ‘ 3(1) a body corporate must perform the functions entrusted to it by or under this Act or the rules and such functions include: - (p) to ensure compliance with any law relating to the common property or to any improvement of land comprised in the common property. (t) in general, to control, manage and administer the common property for the benefit of all owners.” [52]  The powers of the HOA are set out in section 4 of the STSMA [29] which provides that the body corporate may exercise the powers conferred upon it by or under the STSMA or the rules and such powers include the power to do all things reasonably necessary for the enforcement of the rules and for the management and administration of the common property [53]  Section 10 of the STSMA provides as follows: “ 10. (1) A scheme must as from the date of the establishment of the body corporate be regulated and managed, subject to the provisions of this Act, by means of rules. (2) The rules must provide for the regulation, management, administration, use and enjoyment of sections and common property, and comprise— (a) management rules, as prescribed, which rules may subject to the approval of the chief ombud be substituted, added to, amended or repealed by the developer when submitting an application for the opening of a sectional title register, to the extent prescribed by regulation, and which rules may be substituted, added to, amended or repealed by unanimous resolution of the body corporate as prescribed; and (b) conduct rules, as prescribed, which rules may, subject to the approval of the chief ombud, be substituted, added to, amended or repealed by the developer when submitting an application for the opening of a sectional title register, and which rules may be substituted, added to, amended or repealed by special resolution of the body corporate, as prescribed: Provided that such conduct rules may not be irreconcilable with any prescribed management rule contemplated in paragraph (a). (3) The management or conduct rules contemplated in subsection (2) must be reasonable and apply equally to all owners of units. (4) The management or conduct rules referred to in subsection (2) take effect from the date of establishment of the body corporate in respect of the building or buildings and land concerned, and bind the body corporate and the owners of the sections and any person occupying a section. (5) (a) If the management or conduct rules contemplated in subsection (2) are substituted, added to, amended or repealed, the developer or the body corporate must lodge with the chief ombud a notification in the prescribed form of such substitution, addition, amendment or repeal. (b) The chief ombud must examine any proposed substitution, addition, amendment or repeal referred to in paragraph (a) and must not approve it for filing unless he or she is satisfied that such substitution, addition, amendment or repeal is reasonable and appropriate to the scheme. (c)  If the chief ombud approved the substitution, amendment or repeal of rules for filing, he or she must issue a certificate to that effect. (d) A substitution, addition, amendment or repeal of rules contemplated in paragraph (a) comes into operation on the date of the issuing of a certificate contemplated in paragraph (c) or the opening of the sectional title register for the scheme, whichever is the latest.” [54]  Section 57 of the CSOS Act provides as follows: “ 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. (2) An appeal against an order must be lodged within 30 days after the date of delivery of the order of the adjudicator. (3)  A person who appeals against an order, may also apply to the High Court to stay the operation of the order appealed against to secure the effectiveness of the appeal.” PROSPECTS OF SUCCESS ON APPEAL: [55]  The applicants allege various grounds of appeal against the first respondent’s adjudication order which they intend on arguing on appeal.  I do not intend on delving into each and every ground of appeal but will deal specifically with the applicants grounds which in my view may result in the appeal court coming to a different finding on the law.  It is common cause between the parties that neither the provisions of the Scheme nor SPLUMA were traversed before the first respondent.  The applicants contend that this is a material misdirection by the first respondent and gives rise to the mistakes of law that permeate through the award.  In terms of section 50 of the CSOS Act an adjudicator must investigate an application to decide whether it would be appropriate to make an order.  The applicants contend that this includes an investigation into the applicability of SPLUMA and the Tshwane Land Scheme which should have been within the knowledge of the first respondent.  I am of the view that when taking section 50 of the CSOS Act into consideration there may be a possibility that the appeal court may find that the first respondent was in law required to investigate the applicability of SPLUMA and the Tshwane Land Scheme which it is common cause between the parties that the first respondent failed to do. [56]  The applicants further allege that the first respondent granted an order declaring the 2021 conduct rules as unreasonable and after setting aside the 2021 conduct rules ordered that the parties must implement the 2018 conduct rules.  The fourth to eighty-fourth respondents dispute that the first respondent acted outside the first respondent’s mandate.  In the matter of the National Director of Public Prosecutions versus Zuma [30] the Supreme Court of Appeal held that the judicial function of a judicial officer is to confine the judgment to the issues before the court; by deciding matters that are germane or relevant; by not creating new factual issues; or by making gratuitous findings against persons who were not called upon to defend themselves and by failing to distinguish between allegation, fact and suspicion. [57]  In terms of section 10(1) read with 10(2) of the STSMA the first and second applicants were obliged to substitute to, add to, amended to or repeal by unanimous resolution of the body corporate the conduct rules of the Body Corporate.  In the present matter it appears ex facie the papers that the first respondent may have acted outside the first respondent’s scope as an adjudicator in ordering the following instead of referring the matter back to the HOA to apply the provisions of section 10(2) of the STSMA: [57.1]  the relief sought in terms of section 39(3)(d) of the CSOS Act for an order declaring that the Blyde Scheme governance provision clause 21.4 of the 2020 conduct rules, having regard to the interests of all owners and occupiers in the scheme, is unreasonable, was granted. [57.2]  the HOA was ordered in terms of section 39(3)(d)(iii) of the CSOS Act to amend clause 21.4 of the 2020 conduct rules by approving and recording a new clause identical to clause 21.4 of the 2018 conduct rules to bring the offending clause in line with the spirit and purport of the STSMA and the Constitution of the HOA. [58]  I make the aforementioned finding based on the common cause fact between the parties that both clause 21.4 the 2018 conduct Rules as well as the 2020 conduct rules was confirmed and approved of by CSOS in terms of section 4(1)(c) of the CSOS Act [31] read with sections 10(5)(b) read with 10(5)(c) of the STSMA.   The first respondent in paragraph 147.4 of the adjudication order did not provide the HOA with an opportunity to deal with the amendment of clause 21.4 of the 2020 conduct rules in terms of section 10(2) of the STSMA by unanimous resolution of the HOA but rather elected to substitute the 2021 conduct rules with an order that clause 21.4 of the 2020 conduct rules be amended by approving and recording a new clause identical to clause 21.4 of the 2018 conduct rules to bring the offending clause in line with the spirit and purport of the STSMA and the constitution of the HOA.  This order in principle may have the effect of interfering in the HOA’s power to properly apply section 10(2) of the STSMA and may be an aspect in law which the appeal court may come to a different finding. [59]  Furthermore, for the first respondent to subsequently regard clause 21.4 of the 2020 conduct rules as unreasonable is contrary to the earlier CSOS approval of the said conduct rule. Having regard to this there may be some prospect of success of the applicants’ on appeal on this point. STAY APPLICATION: [60]  For CSOS adjudication orders, an appeal must be lodged within 30 days of the delivery date of the adjudication order.   The applicants in this matter timeously lodged their appeal against the first respondents adjudication order on 11 February 2022 and therefore I am satisfied that there is an appeal pending.  The STL owners contend that there has been a delay in the prosecuting of the appeal by the applicants and that the record has not been properly constructed.  At the time of the hearing of the matter counsel for the second and third applicants submitted that the recording had been properly constructed and that the appeal must now be set down for hearing. [61]  In considering the stay application I am mindful that section 57(1) of the CSOS Act only permits an appeal by a party on a question of law.  However, section 57(3) of the CSOS Act makes it clear that a person who appeals an order of the adjudicator may also apply to the High Court to stay the operation of the order. [32] Having regard to section 57(1) of the CSOS Act this stay application cannot be in respect of an appeal on the merits of the case but only in respect of an appeal on a question of law.  I therefore cannot agree with Mr Mokgalaka’s submission in his answering affidavit that a stay application in terms of Section 57(3) of the CSOS Act is intimately tied to the merits of the appeal and therefore cannot be entertained. [33] [62]  It was also argued by Mr Phala, on behalf of the STL owners that the CSOS Act no longer applies to the stay application as the first respondents’ adjudication order was already made an order of the High Court.  Firstly, Rule 45A of the Uniform Rules of Court empower this court to stay any order of court.  Secondly, an appeal of an adjudicators order from CSOS in terms of section 57(2) of the CSOS Act which has subsequently been made an order of the High Court in the strict sense should be dealt with under section 18 of the Superior Courts Act 10 of 2013 . [34] In the present matter that the first respondent’s adjudication order was made an order of court by the High Court on 26 May 2022. [35] [63] Section 18 of the Superior Courts Act deals with the operation and/or execution of an order pending an application for leave to appeal or appeal and is as follows: “ 18.    Suspension of decision pending appeal (1)      Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal. (2)      Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal. (3)      A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.” [64]  Thus the respondent can in terms of section 18(3) of the Superior Courts Act only request a stay to not be granted if : [64.1] the respondent makes application for such request; and [64.2]  exceptional circumstances exist therefore. [65]  A reading of section 18(1) of the Superior Court Act [36] provides for the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal to be suspended pending the decision of the application or appeal.  By implication thereof, this would mean that the operation and execution of the adjudicators order which is the subject matter of this appeal is to be suspended pending the outcome of the appeal.  This would in effect result in clause 21.4 of the 2021 conduct rules being applicable pending the finalisation of the appeal. I am mindful of the prejudice that a stay of the first respondent’s adjudication order may have on the STL owners and their ability to earn an income from STL if clause 21.4 of the 2021 were to be applicable pending the finalisation of the appeal proceedings.  I have also taken into account that at the time of hearing of the matter there was still STL letting allowed by the first and second applicants subject to the STL owner’s entering into STL agreements with the HOA.  Although the fourth to eighty-fourth respondents have argued that this amounts to contempt of court in respect of the first respondent’s adjudication order, if one puts into operation section 18 of the Superior Court’s Act the stay of the first respondent’s adjudication order would be by operation of the law and the first and second applicants could not be in held in contempt of the first respondent’s adjudication order. [66]  Mr Phala’s submission that this court is no longer empowered to make an order to stay the first respondent’s adjudication order as the CSOS Act is no longer applicable since the adjudication order was made an order of the High Court is also without merit.  Section 56(1) of the CSOS Act clearly sets out that CSOS orders may be enforced or executed as if it is an order of the Magistrates’ Court or High Court, whichever is applicable, and thus it must follow that I am empowered in this court to stay the first respondent’s adjudication order. [37] [67]  If I were to apply section 18 of the Superior Court Act to the present case a stay of the first respondent’s adjudication order is by operation of the law and any stay order would merely have the effect of confirming the stay of the execution of the first respondents adjudication order as well as the terms of the stay of the said adjudication order. In the present case the respondent has applied that the stay application be dismissed, however I cannot find that exceptional circumstances exist not to stay the first respondent’s adjudication order. [38] A fair and reasonable order to all parties in the present case would be in line with the alternative relief sought by the applicants in their notice of motion that the operation of paragraph 147.4 of the adjudicators order granted on 12 January 2022, annexed as “FA1” to the applicant’s founding affidavit is stayed pending the applicant’s appeal against the first respondent’s adjudication order.  Since the 2020 conduct rules were approved by the CSOS ombud prior to the dispute that these rules should apply to the parties  pending the finalisation of the appeal.  Having regard to the rights of the STL owners as property owners and the financial impact that a total prohibition may have on STL owners pending the finalisation of the appeal, I am of the view that the applicants have proved to this court on a balance of probabilities that the applicants are entitled to the alternative relief sought in the notice of motion.  The main relief is thus refused and the alternative relief of the applicants as sought is granted. COSTS: [68]  The applicants seek a costs order against the STL owners due to the fact that this matter was opposed.  It was argued by the applicant that there were many attempts to mediate this matter and the stay application without success.  If one has to take into consideration that section 18 of the Superior Courts Act provides for the operation and execution of the first respondent’s adjudication order to be stayed pending an appeal, then one would have to consider that the stay application was not necessary but given the parties inability to mediate this matter amicably this necessitated the current stay application.  As a consequence thereof the applicant lodged this stay application necessitating additional costs. [69]  The Fourth to eighty-fourth respondents as stated earlier did not hold a joint pre-trial in the matter prior to hearing to limit the issues between the parties.  The heads of argument was filed late and two intervention/ joinder applications by Mr Le Roux and Mr Mohale were also lodged late necessitating the applicants to respond thereto.  In my view given the fact that the STL owners were unsuccessful in this matter on both the counter claim and the stay application that costs should be granted against them.  Two senior level counsel were employed by the applicants to attend to the volume of the stay application, intervention applications and counter application papers.  Many issues were raised during this stay application which required both of the applicants’ counsel to address. I am satisfied that costs be granted in favour of the applicants, which include the costs of two counsel on scale C. ORDER: [70]  I therefore make the following order: [70.1]  Condonation for the late filing of the fourth to eighty fourth respondents (referred to as the fourth to eighty-seventh respondents in the answering affidavit) is granted; [70.2]  The joinder application of Mr Abraham Le Roux is dismissed with no order as to costs; [70.3]  The joinder application of Mr Mohale is dismissed with no order as to costs. [70.4]  The fourth to eighty-fourth respondents’ (referred to as the fourth to eighty-seventh respondents in the answering affidavit) counter application in respect of the striking out application is dismissed. [70.5]  The fourth to eighty-fourth respondents’ (referred to as the fourth to eighty-seventh respondents in the answering affidavit) counter application in respect of the first and second applicants contempt of court is dismissed. [70.6]  That the operation of paragraph 147.4 of the first respondent’s order issued on 11 January 2022 and granted on 12 January 2022 annexed as “FA1” to the applicants’ founding affidavit is stayed pending the finalisation of the applicant’s appeal against it. [70.6]  That pending the finalisation of the appeal clause 21.4 of the 2020 conduct rules of the Blyde Riverwalk Home-Owners Association must be applied by the parties. [70.7]  The fourth to eighty-fourth respondent (referred to as the fourth to eighty-seventh respondents in the answering affidavit) are ordered to pay the costs of the stay application, which includes the costs of two counsel on scale C, jointly and severally, payment by one to absolve the other. M NAIR ACTING JUDGE OF THE HIGH COURT JOHANNESBURG Date of appearance: 21 May 2025 Date Judgment delivered:12 September 2025 Appearances: For the 1 st Applicant: No appearance For the 2 nd and 3 rd Applicants: Instructed by: Tel: Email address: Adv AC Botha SC Adv AW Pullinger Brian Kahn Inc Attorneys 011-577 600 brian@briankahn.co.za michelle@briankahn.co.za jenniferdf@briankahn.co.za For the fourth to eighty-fourth respondents: Instructed by: Email: Mr Phala LNM Attorneys lekwee@lnmattorney.co.za rmphala@lnmattorneys.co.za lnmattorneys@gmail.com [1] See Mr Mohale’s joinder application Court Bundle 037-5 [2] See Applicants’ heads of argument 019-1 and Respondents’ heads of argument 020-1 [3] South African History Archive Trust versus South African Reserve Bank 2008 (4) SA 63 (SCA); City of Johannesburg Metropolitan Municipality versus Blue Moonlight Properties 39 (Pty) Ltd and Another; Amalgamated Engineering Union versus Minister of Labour) [4] Applicants founding affidavit 001-167 [5] Applicants’ founding affidavit 001-21 and 001-23 paragraph 39 [6] Applicants’ founding affidavit 001-23 [7] Applicants founding affidavit 001-23 [8] Applicants’ founding affidavit 001 – 25 at par 47 to 48 [9] Applicants’ founding affidavit 001 - 33 [10] Applicant’s founding affidavit 001-201 [11] Applicants founding affidavit 001-27 [12] Fourth to eighty-fourth respondents answering affidavit 011-13 and 011-20 [13] Applicants’ replying affidavit on page 015 – 13 of the record [14] Applicants’ replying affidavit on oage 015 – 22 of the record [15] Fourth to eighty-seventh respondents’ answering affidavit 011-14 [16] Fourth to eighty-seventh respondents’ answering affidavit 011-64 to 011-67 [17] Fourth to eighty-seventh respondents answering affidavit 011-23 [18] Fourth to eighty-fourth respondents’ answering affidavit 011-25 par 19 [19] Fourth to eighty-fourth respondents’ answering affidavit 011-27 [20] Fourth to eighty-fourth respondents’ answering affidavit 011-29; 011-31; 011-33 and 011-40 [21] Beinash versus Wixley [1997] ZASCA 32 ; 1997 (3) SA 721 (SCA) at 733A-B. [22] Fourth to eighty-fourth respondents’ answering affidavit 011-48 [23] The position is similar in review matters as was considered in the unreported matter of Turley Manor Body Corporate versus Pillay and Others 10662/18) [2020] ZAGPJHC 190 (6 March 2020) at par 18 [24] Fourth to eighty-fourth respondents’ answering affidavit 011-21 [25] Fakie N.O. versus CCII Systems Pty Limited [2006] ZASCA 52 ; 2006 (4) SA 326 (SCA) at [42] [26] Plascon-Evans Paints Ltd versus Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51 ; 1984 (3) SA 623 (A) at 634E-635C, discussed and approved in Rail Commuters Action Group and Others versus Transnet Ltd t/a Metrorail and Others [2004] ZACC 20 ; 2005 (2) SA 359 (CC); 2005 (4)  BCLR 301 (CC) at para 53 [27] Section 50 of the CSOS Act provides as follow: “ Investigation by adjudicator  50. The adjudicator must investigate an application to decide whether it would be appropriate to make an order, and in this process the adjudicator— (a) must observe the principles of due process of law; and (b) must act quickly, and with as little formality and technicality as is consistent with a proper consideration of the application; and (c) must consider the relevance of all evidence, but is not obliged to apply the exclusionary rules of evidence as they are applied in civil courts” [28] Section 50(1); 50(2) and 50(3) of the CSOS Act [29] Section 4 of STSMA provides as follows: “ 4. The body corporate may exercise the powers conferred upon it by or under this Act or the rules and such powers include the power: -(i) To do all things reasonably necessary for the enforcement of the rules and for the management and administration of the common property” [30] National Director of Public Prosecutions versus Zuma [2009] ZASCA 1 ; 2009 (2) SA 277 (SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) [31] Section 4 of the Community Schemes Ombud Services  Act provides as follows: “ Functions of Service Section 4. (1) The Service must— (a) develop and provide a dispute resolution service in terms of this Act; (b) provide training for conciliators, adjudicators and other employees of the Service; (c) regulate, monitor and control the quality of all sectional titles scheme governance documentation and such other scheme governance documentation as may be determined by the Minister by notice in the Gazette; and (d) take custody of, preserve and provide public access electronically or by other means to sectional title scheme governance documentation and such other scheme governance documents as may be determined by the Minister by notice in the Gazette.” [32] The unreported matter of The Body Corporate of Central Square versus SS 661/2917 versus Penelope Bexk- Paxton N.O and Three Others of the South Gauteng High Court seated in Johannesburg under case no 30916/2021 delivered on 2 August 2021 by Kollapen J. [33] Fourth to eighty-fourth respondents answering affidavit 011-26 par 19.2 [34] The unreported case of Conrad v Key West Body Corporate (55262/2021) [2022] ZAGPPHC 508 (28 June 2022) at par 19 [35] Fourth to eighty-fourth respondents answering affidavit 011-13 and 011-20 [36] Superior Courts Act 10 of 2013 [37] Enforcement of orders in terms of the CSOS Act: “ Section 56. (1) If an adjudicator’s order is for the payment of an amount of money or any other relief which is within the jurisdiction of a magistrate’s court, the order must be enforced as if it were a judgment of such Court and a clerk of such a Court must, on lodgement of a copy of the order, register it as an order in such Court. (2) 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. [38] Conrad v Key West Body Corporate (55262/2021) [2022] ZAGPPHC 508 (28 June 2022) at par 20 sino noindex make_database footer start