Waterford Estate Homeowners Association Npc v Riverside Lodge Body Corporate and Others (24576-2020) [2024] ZAGPJHC 192 (27 February 2024)

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 >> 2024 >> [2024] ZAGPJHC 192 | Noteup | LawCite sino index ## Waterford Estate Homeowners Association Npc v Riverside Lodge Body Corporate and Others (24576-2020) [2024] ZAGPJHC 192 (27 February 2024) Waterford Estate Homeowners Association Npc v Riverside Lodge Body Corporate and Others (24576-2020) [2024] ZAGPJHC 192 (27 February 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2024_192.html sino date 27 February 2024 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NO: 24576/2020 1. REPORTABLE: YES / NO 2. OF INTEREST TO OTHER JUDGES: YES/NO 3. REVISED In the matter between: WATERFORD ESTATE HOMEOWNERS ASSOCIATION NPC Applicant and RIVERSIDE LODGE BODY CORPORATE 1 st Respondent 101 OWNERS OF UNITS IN RIVERSIDE 2 nd to 102 nd LODGE SECTION TITLE SCHEME Respondents MABASO KHOSI 103 rd Respondent COMMUNITY SCHEMES OMBUD SERVICE 104 th Respondent THE CHAIRPERSON OF THE BOARD OF THE 105 th Respondent COMMUNITY SCHEMES OMBUD SERVICE THE CHIEF OMBUD OF THE COMMUNITY SCHEMES 106 th Respondent OMBUD SERVICE THE OMBUD FOR THE GAUTENG REGIONAL OFFICE 107 th Respondent THE MINISTER OF HUMAN SETTLEMENTS OF SOUTH AFRICA 108 th Respondent JUDGMENT MAKUME, J: 1. This matter came before me as a review in which the applicant sought an order setting aside certain decisions of the adjudicator who had been appointed in terms of section 48 of the Community Schemes Ombud Services Act (The CSOS Act). 2. The applicant also sought an order declaring section 39 (1) (c) read with section 39 (1) (e) of the CSOS Act unconstitutional as it affords an adjudicator powers to: a. declare that a contribution levied is unreasonable. b. grant an order for the adjustment of a contribution to a reasonable amount  and c. grant an order for the payment of a contribution pursuant to a declaration that a contribution levied is  “unreasonable.” 3. In my judgment handed down on the 10 th August 2023 I dismissed the review application as well as the prayer to declare section 39 (1)(c) & (e) unconstitutional. 4. In dismissing both applications I decided that the applicant pays the taxed party and party costs of all the respondents including costs of senior Counsel where two Counsels were involved. 5. It is common cause that the review application mainly concerned the first to 102 nd Respondents whilst the attack on the constitutionality of the CSOS Act concern the rest of the Respondents. 6. The applicant seeks leave to appeal against the whole of the judgment granted against it on a number of grounds set out in the notice of leave to appeal. 7. In particular the Applicant contends that the judgment does not deal with the review raised in connection with the following: 7.1 contributions levied in respect of the 2019 and 2020 financial year. 7.2   The charging of interest. 8. A further ground of appeal is that I erred in my finding that the 101 owners of Units in Riverside lodge Sectional Title Scheme were not members of the Applicant. 9. Lastly the appeal is also directed at my finding about the constitutionality of  Section 39(1)(c) of the CSOS Act including the cost order. 10. Section 17 (1) of the Superior Courts Act 10 of 2013 provides that leave to appeal may only be given where the judge or judges concerned are of the opinion that: a. (i) The appeal would have a reasonable prospect of success. b. There is some other compelling reason why the appeal should be heard including conflicting judgments on the matter under consideration. 11. As I have indicated there are two issues in this judgment. The first being the review application. I am satisfied that the grounds of appeal in respect of the review are fairly arguable. The resolution of the original application was by no means free from difficulty the issues raised therein were to some extent r es nova . In the result it is my considered view that the appeal in respect of their review including whether the 101 Unit owners are members of the applicant has reasonable prospects of success. 12. As far as the attack on the Constitutionality of Section 39 (1) and (e) is concerned I am not persuaded that the Applicant has succeeded in demonstrating that it has reasonable prospects of success. 13. In the notice of motion the applicant sought an order to declare those sections unconstitutional and now in this application for leave to appeal the applicants now also contends that the section should be interpreted in a way which complies with the constitution of the Republic of South Africa 1996 besides declaring same unconstitutional. 14. Section 39 (1) ) (c) is written in clear and unambiguous language and can never be misunderstood to mean anything else than what it says.   To read something into that section would be to attack the whole purpose of this CSOS Act. The application for leave to appeal the constitutionality finding falls to be dismissed. 15. In the results I make the following order: Order 1. Leave to appeal against the finding in the review is hereby granted. 2. Leave to appeal against the constitutionally finding is dismissed. 3. Leave to appeal against the costs order is dismissed. 4. The cost of this application shall be the cost in the appeal of the review order. Dated at Johannesburg on this 27 day of February 2024 M A MAKUME JUDGE OF THE HIGH COURT GAUTENG DIVISION, JOHANNESBURG Appearances Date of hearing:                                             23 February 2024 Date of Judgement:                                       27 February 2024 For Applicant:                                               Adv M Oosthuizen For 2 nd to 102 nd Respondents:                    Adv S Jackson For 104 th to 107 th Respondents:               Adv T Manchu For 108 th Respondent:                                 Adv Makamu sino noindex make_database footer start