IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 33185/2021

(1) REPORTABLE:
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED.

____________________ ____________________

DATE SIGNATURE

In the matter between:

WINGATE BODY CORPORATE Applicant

And

NOBULUNGISA PAMBA First Respondent

KANYA KOPELE Second respondent

___________________________________________________________________

JUDGMENT

MBONGWE J:

INTRODUCTION

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[1] The Applicant, a body corporate established in terms of the Sectional Title
Schemes Management Act 8 of 2011, has brought this application on urgent
basis in terms of Rule 6 (12) of the Uniform Rules of the Court seeking a final
interdictory order against the Respondents, who are residents in a unit in the
complex. The application is opposed by the Respondents.

THE FACTS / DISPUTE

[2] The dispute between the parties concerns the use of common property
situated next to the respondents’ residential unit and is used by them as their
carport. The refusal by the respondents to grant access to plumbers
contracted by the Applicant to replace aged water pipes running underneath
the carport is in the heart of the dispute. The deponent to the founding
affidavit, Mrs Wendy Kotze, alleges to be the chairperson of the board of
trustees of the Applicant and to have taken the decision to institute these
proceedings against the Respondents subsequent to the board taking a
resolution mandating her as the chairperson to do so.

[3] Mrs Kotze alleges that the conduct of the respondents is obstructive to the
operations and to the prevention of recurrent water pipe bursts causing high
water bills. In addition, damage caused by the water leakages has resulted in
a threatened repudiation of complex’s insurance claims arising from the
leakages. The frequency of the water leaks has kept increasing for months
and four major leaks had occurred in month of February 2021 alone.

[4] In the second instance, Mrs Kotze alleges that the respondents harass and
intimidate the trustees, including her and her husband, and the contracted
plumbers. She further alleges that the respondents’ shouting and verbal
abuse affects her 29 years old daughter who suffers from borderline mental
retardation and psychosis.

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THE RELIEF SOUGHT

[5] In consequence of the above, the Applicant seeks the following orders against
the Respondents:

5.1 Prohibiting the Respondents from interfering with the business

operations and contractual relationship between the Applicant and
Ablaze Plumbing, the contracted company;

5.2 Prohibiting the respondents from interfering with the Applicant’s

functions and powers, and the exercise thereof by the trustees, and;

5.3 Prohibiting the Respondents from threatening or intimidating the

Applicant’s Board of Trustees or its contractors.

RESPONDENTS’ RULE 7 (1) NOTICE

[6] The respondents dispute that Mrs Kotze is the chairperson of the board of
trustees and her authority to institute these proceedings. In response to the
respondents’ rule 7(1) notice, the attorneys for the Applicant filed the
resolution referred to above which was signed by the board of trustees on
different dates, but failed to file the requested minutes of the meeting in which
the resolution to appoint Mrs Kotze as the chairperson was taken. The
respondents dispute the legitimacy of these proceedings as a result and seek
a dismissal thereof with punitive costs.

POINTS IN LIMINE RAISED BY THE RESPONDENTS

[7] The respondents have raised two points in limine to the Applicant’s claim; a
premature approach to the court and the disputed alleged position of
chairperson and authority of Mrs Kotze to institute these proceedings.

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PREMATURE APPROACH TO THE COURT

[8] At paragraph 7 of their Answering Affidavits, the respondents take the point
that the relief sought by the applicant falls within the purview and ambit of
orders the Community Schemes Ombud Services, (‘CSOS’) adjudicator is
statutorily empowered to make in disputes concerning the administration of a
sectional title development scheme. The respondents contend that the
Applicant ought to have approached the CSOS as the primary forum and that
the failure to do so renders the applicant’s approach to the court premature
and is fatal to the proceedings.

THE LAW

[9] It is common cause that the Applicant is a body corporate established under
the Sectional Title Schemes Management Act 8 of 2011 (‘the STSMA’).
Section 3(1)(o) of the STSMA makes it mandatory for a body corporate to be
registered with Community Schemes Ombud Services, (‘the CSOS’) which
was established in terms of section 3 of the CSOS Act 9 of 2011. The CSOS
prescribes the rules, regulations and procedures for the regulation,
management, administration, use and enjoyment of section and the common
property. The Applicant is consequently mandatorily subject to the rules,
regulations and procedures prescribed in the Community Schemes Ombud
Services in terms of sections 10(1) and (2) of the Sectional Title Schemes
Management Act 8 of 2011 (‘STSMA’).

PURPOSE, FUNCTION AND AUTHORITY OF THE CSOS

[10] In terms of section 3 of the CSOS Act, the purpose and function of the office
of the Ombud include “providing for a dispute resolution mechanism in
community schemes and to regulate, monitor and control the quality of all
sectional titles scheme governance documentation”. Section 38(1) regulates
applications made in respect of disputes regarding the administration of a
community scheme. More relevant for purposes of the present matter are the
provisions of section 39(2)(a) of the STSM Act which empower the CSOS to

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 grant orders in respect of behavioural issues including an order that particular
behaviour constitutes a nuisance and require the relevant person to act or
refrain from acting, in a specified manner.

[11] Importantly, the CSOS was established, inter alia, for the purpose of providing
expeditious and informal cost effective mechanism for the resolution of
disputes, including on urgency in terms of Part 7 of the CSOS Practice
Directive on Dispute Resolution of 2019. (see Stenersen and Tulleken
Administration CC v Linton Park Body Coprporate & Another (the CSOS
joined as amicus curiae [2019] JOL 46104 (GJ) and Heathrow Property
Holdings No 3 CC and Others v Manhattan Place Body Corporate & Others
[2021] ZAWCC 109).

[12] The question whether a party in the position of the Applicant has the liberty to
choose a forum for the purpose of obtaining relief has been addressed in
numerous precedent cases. While it is trite that the High Court has concurrent
jurisdiction to hear a matter properly brought before it, the Courts have
adopted the view that not all matters brought before them necessarily ought to
be entertained by the Courts. The Supreme Court of Appeal, whilst asserting
the concurrent jurisdiction of the High Court, has pronounced on a preference
for the adjudication, by specialised structures, of matters in respect of which
such structures were created specifically to resolve disputes of a particular
nature effectively and expeditiously, adding that a court might in such
circumstances be entitled to decline to exercise its jurisdiction (see Agri Wire
(Pty) Ltd and Another v Commissioner, Competition Commission and Others
2013 (5) SA 484 (SCA).

[13] In the Heathrow matter, the Court set out the position thus:
“by establishing the CSOS whose personnel is required to consist of
suitably qualified adjudicators, the legislature had intended that the
CSOS be the primary forum for the adjudication and resolution of

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 disputes in matters such as the present’’. The Court went on to state
that; “a court is not only entitled to decline to entertain such matters as
a forum of first instance, but may in fact be obliged to do so, save in
exceptional circumstances. Such matters will not be matters which are
properly before the High Court, and on the strength of the principle in
Standard Credit (and a number of courts thereafter, including the
Constitutional Court in Agri Wire), it is accordingly entitled to decline to
hear them, even if no abuse of process is involved.”

[14] The learned Judge likened the provisions of the CSOS with those of PAJA
which make it mandatory for a party to a dispute to initially seek relief in
structures that have been statutorily established to deal with the particular
dispute. In this regard the Court found that the application before it ought to
have been dealt with in terms of the dispute resolution procedures of the
CSOS Act and not by the Court and concluded thus;

“In the result, I am of the view that where disputes pertaining to

community schemes such as sectional title schemes fall within the
ambit and purview of the of the CSOS Act, they are in the first instance
to be referred to the Ombud for resolution…… In this regard, as far as
the High Court is concerned, the processes which have been provided
for the resolution of disputes in terms of the CSOS Act are, in my view,
tantamount to ‘internal remedies’ (to borrow a term from the Promotion
of Administrative Justice Act), which must ordinarily first be exhausted
before the High Court may be approached for relief.”

[15] An important underlying reason for the preference of adjudication by

specialised structures was expressed by Sher J as follows:

“in numerous instances an adjudicator has an equity i.e., fairness

based
power not only to decide what is reasonable in relation to the conduct
of,

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 or the decisions which have been taken by an association such as a
body corporate of a sectional title, but also to direct what should [be]
reasonably done in place thereof. A High Court does not have such
powers. It is confined to reviewing the legality or rationality of the
conduct

of a decision-making body and not the fairness thereof, and when

doing so it generally does not have the power to substitute its own
decision as to what would be fair or reasonable, in place of the body.
The best it can do ordinarily, unless it is clear that no other decision
can be made on the issue and the relief which is sought must inevitably
follow as a matter of law or logic, is to set aside the decision or conduct
concerned and refer the matter back to the body for a decision anew’’.
[Heathrow Property Holdings at [paras 52 – 53].

REQUIREMENTS FOR A FINAL ORDER

[16] It is trite that an Applicant seeking an order of a final nature must show that;
(a) it has a clear right; (b) that the right is under threat of infringement or that
the Applicant has a reasonable apprehension of irreparable harm being
inflicted to its right and, (c) that the Applicant has no other alternative, but to
approach the Court for the relief sought. It is apparent in the present matter
that the Applicant does not meet, at least, the last mentioned requirement as
the CSOS is the primary forum to adjudicate on all the issues concerned in
this case, including on urgent basis.

PERTINENT FACTS ON URGENCY

[17] The Respondents have disputed the Applicant assertion that the matter is
urgent. Importantly and on the Chairperson’s own account, major water
leakage problems manifested in February 2021 (see para 6.2 and 7.5 of the
founding affidavit). The resolution to take action to repair the leakages was
taken in June 2021. The resolution for the institution of these proceedings was
signed on the 2nd and 4th July 2021. These proceedings were instituted on 05

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 July 2021, five months after the extent and impact of the water leakage had
been noticed. The period between the realisation of the major water leakages
and the time of institution of these proceedings barely displays the urgency
alleged and relied upon by the Applicant.

[18] The decision to institute these proceedings, in my view, appears to have been
pre-determined and other trustees given notification thereof merely for
endorsement by them. The notification, by its wording, lacks the
characteristics of a resolution that was taken in a properly constituted meeting
of trustees and reads thus;

“NOTICE TO ALL TRUSTEES”

“You are hereby notified of the Proposed Resolution detailed below.

Please indicate your agreement to the Proposed Resolution by your
signature which must be received by the Body Corporate on or before 5
July 2021 (the closing date)”.

[19] The above statement legitimises the respondents’ contestation of the

existence of the meeting in which the resolution was taken and the validity of
the resolution per se. The failure by the Applicant to furnish the documentation
(minutes of the meeting wherein the resolution was taken) inter alia, gives
further credence to the respondents’ contestations of the validity of the
resolution.

FINDINGS AND CONCLUSION

[20] It is apparent from the authorities cited in this judgment that the nature of the
disputes in this matter fall squarely within the ambit of adjudication by the
CSOS. The argument that the Applicant was entitled to bring these
proceedings to court “because it can” falls in the face of the authorities cited
above. The Applicant has clearly circumvented the mandatory adjudication
process of the CSOS. I consequently decline to entertain the matter.

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COSTS

[21] It is trite that costs follow the outcome of the case. Each party in these
proceedings has asked for costs to be awarded against the other on a
punitive scale. I can find no reason why the Applicant should not be ordered to
pay the costs of this application.

ORDER

[22] Following the findings in this judgment, the following order is made:

1. The matter is not urgent.

2. The application is dismissed.

3. The Applicant is ordered to pay the costs on an opposed party and party

scale.

_______________________________

M. MBONGWE J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA.

APPEARANCES

For the Applicant: Advocate S.W. Davies

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Instructed by: Izak Du Pisanie, Loock Du Pisanie Inc.

Suite 2, First Floor, 476 King’s Highway,

Lynnwood, PRETORIA.

For the Respondents: Advocate N.L. Buthelezi

Instructed by: Gwina Attorneys Incorporated.

Suite 22, Second Floor

135 Daisy Street
Sandown, Sandton
c/o Gwebu Inc. Attorneys
Block 1, Ground Floor, Corobay Corner
169 Corobay Avenue
Menlyn
Pretoria, 0181

Matter heard on: 27 July 2021

JUDGMENT HANDED DOWN/ELECTRONICALLY TRANSMITTED TO THE

PARTIES ON THE 21st JANUARY 2022.

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Wingate Body Corporate v Pamba and Another
(33185/2021) [2022] ZAGPPHC 46 (21 January 2022)

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