IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, JOHANNESBURG)

REPUBLIC OF SOUTH AFRICA

CASE NO: 59207/ 2021

NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
NOT REVISED
12.05.23

In the matter between:

EAGLE CANYON GOLF ESTATE HOME First Applicant

KEITH NOEL KENNEDY Second Applicant

and

NATASA GROENVELD First Respondent

MR. ABRAHAM MASILO N.O. Second Respondent

COMMUNITY SCHEMES OMBUD SERVICE Third Respondent

ADV BOYCE MKHIZE N.O. Fourth Respondent

MR FARHAD LOCKHAT Fifth Respondent

Neutral Citation: Eagle Canyon Golf Estate Homeowners & Another v Natasha
Groenveld & Others (Case No: 59207/2021) [2023] ZAGPJHC 468 (12 May 2023)

Delivered: By transmission to the parties via email and uploading onto Case Lines

the Judgment is deemed to be delivered.

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JUDGMENT

SENYATSI J:

A. INTRODUCTION

[1] This is an application opposed by the third respondent, the Community

Scheme Ombud Service (“the CSOS”), to review and set aside its decision to

accept the dispute resolution application brought by the first respondent, Dr.

Natasha Groenveld (“Dr Groenveld”) for referral to adjudication. The applicant

is the homeowners association (“the Scheme”) registered as a non-profit

company and has voting members who are property owners within the estate.

It is registered and incorporated in terms of the laws of the Republic. This

judgment deals essentially with the jurisdiction that the third respondent, the

CSOS has in terms of Section 39(2) (a) of the Community Scheme Ombud

Service Act, No: 9 of 2011(“CSOS Act”) whether to accept or reject the dispute

resolution application brought to it by members of the Scheme. The second

applicant is Mr Kennedy, the chief executive Officer of the applicant. For

convenience reasons, I will refer to the applicant in this judgment as the

Homeowners Association or the Scheme interchangeably, the second

applicant as the CEO and the first respondent as Dr. Groenveld and the third

respondent as CSOS. Apart from the CSOS, none of the respondents oppose

this application.
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B. BACKGROUND

[2] The Scheme advances and protects the communal interest and security of its

members as well as residents and other users of its property over which it

acts as a governing body. As a Homeowners Association, it manages the

affairs of its member for the common good of them all. Its mandate includes

but is not limited to devising; issuing and enforcing rules and regulations

pertaining to the conduct of members; residents and other users of the golf

estate; rules on the use of and maintenance of the streets within its property;

sidewalks, walkways, communal property and private open spaces;

movement of traffic on its property and any other internal matter which the

board of the applicant deems appropriate to be regulated. It is also

empowered to collect levies from its members for the upkeep of the

communal property as well as payment of expenses related thereto.

[3] The applicant can impose and collect penalties from members for violation of

the rules and regulations as determined by its board from time to time. It is

also empowered to act, including institution of legal proceedings in relation to

the non-compliance by any member of any rule and regulation or non-

payment of levies or any amount legally due by any member to the Scheme.

[4] The first defendant and her husband are a title property owners within the

property of the Scheme. She is by virtue of that ownership, a member of the

Scheme and therefore bound by the rules and regulations designed by it for

its members.

[5] The third respondent is the Community Schemes Ombud Service (“the

CSOS”), public entity and juristic person created in terms of s3 of the CSOS
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Act of 2011. As a creature of statute, its objectives are clearly spelled out in

the CSOS Act and can be summarised as follows1:

(a) To develop and provide a dispute resolution service;

(b) provide training for conciliators, adjudicators and other employees of

CSOS;

(c) regulate, monitor and control the quality of all sectional title schemes

governance, documentation and such other scheme governance

documentation;

(d) Take custody of, preserve, and provide public access electronically or by

other means to sectional title scheme governance documentation.

[6] The CSOS is required to provide a dispute resolution procedure regarding the

administration of a community scheme between persons who have a material

interest in that scheme. This dispute resolution procedure is an alternative

dispute resolution procedure outside of the realm of the courts. It is designed

to be the most cost effective and speedy way of settling disputes through

methods such as conciliation and adjudication. The application by the

applicant must include a statement setting out the relief sought by the

applicant and the grounds upon which the relief is sought.

[7] The dispute before this court relates to the acceptance of dispute resolution

application sent by Dr. Greonveld to the second respondent.

[8] The scheme contends that Dr. Greonveld violated the Scheme's rules and

regulations as follows:

1
See s4 of the CSOS Act.
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(a) From the 27th April 2020 to the 5th May 2020 she conducted a

business from her residential premises contrary to the rules of the

Scheme;

(b) She fed feral cats while she cycled on the common areas on 31 March

2020 contrary to the Scheme rules and regulations;

(c) her dogs were roaming the common areas on the 21st of January 2021

contrary to the rules of the Scheme;

(d) She drove over the speed limit within the estate on the 31st of July

2021 at 10:34 by driving at the speed of 48 kilometres per hour, where

the speed limit was 40 kilometres per hour. A penalty was imposed

because of the violation.

[9] Following the violations, the necessary internal procedures were taken by the

Scheme; a set of penalties and written warnings were addressed to Dr.

Groenveld. In reaction to the violations and penalties imposed on her by the

Scheme, her husband Mr. Groenveld addressed a number of emails to the

Scheme and complained about the incompetence of the security officers

employed by the Scheme by stating that a certain A. Nomi was working for

her when they entered the details of a person at the main gate to the estate.

Furthermore, Dr. Groenveld’s husband sent another e-mail on the 3rd of

August 2021 raising questions on how the complaints received were dealt

with and why there were so many employees at the Scheme. In addition, a

third email was sent to the Scheme by Mr. Groenveld and he complained

about why he was issued with speed violation fine and accused the staff of

the Scheme of being intellectually inferior.

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[10] In fact, all the communications to the Scheme were offered by Mr Groenveld.

Following these communications, the Scheme then sent a letter to Dr.

Groenveld on the 3rd of August 2021 and advised her that it would no longer

respond to the letters due to the insulting comments contained in the previous

emails from her husband. However, what remains unexplained is why the

Scheme reacted to the emails by Mr. Groenveld and sent a letter to Dr.

Groenveld that it was no longer going to reply to the emails.

[11] Consequently, Dr. Groenveld lodged an application to the CSOS for dispute

resolution in terms of s38 of the CSOS Act. She seeks amongst others, a

personal apology for the incompetence of the staff of the Scheme. The CSOS

accepted the complaint in terms of s39 of the CSOS Act. It is that acceptance

of the complaint which is the subject of this litigation because the Scheme

contends that the application for dispute resolution ought to have been

rejected in terms of s42 of the CSOS Act.

C ISSUE FOR DETERMINATION

[12] The issue for determination is whether the acceptance of the dispute

resolution application was administratively correct in terms of the CSOS

legislation.

D. THE LEGAL PRINCIPLES AND REASONS FOR THE JUDGMENT

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[13] The dispute resolution application is regulated by the CSOS Act 2 and s38

states that any person may make an application if such a person is a party to

or affected by a material dispute. The application must be made in the

prescribed manner and as required by the practise directives and launched

with an Ombud. The application must include a statement setting out the relief

sought by the applicant, which must be within the scope of one or more of the

prayers for relief contemplated in s39. “Dispute” in the act means a dispute in

regard to the administration of a community scheme between persons who

have a material interest in that scheme, of which one of the parties in the

association, is an occupier or owner, individually or jointly.3

[14] The prayers for relief are regulated by s39 of the Act and deals with financial

issues between the person with a material interest and the Scheme and also

in respect of behavioural issues such as nuisance, pets rules; 4 governance

issues5; meetings, management services and other general issues 6 which will

presumably be those of the same kind as the once mentioned by the section.

[15] The Ombud in this case being the second respondent, is permitted to ask for

more information and evidence that an internal dispute resolution mechanism

has been unsuccessful after receiving the application. 7 The Act also imposes

time limits on certain applications within which an order relating to any

decision of an Association or an Executive Committee may be challenged and

declared by to be void which period may not be later than 60 days after such

2
See s38
3
See s1 of the Act under definitions.
4
See s39(2) (a)-(d).
5
See s39(2) (a)-(d).
6
See s39 (3) to (7).
7
See s40.
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a decision's been taken. An Ombud may, on good cause shown, condone the

late submission of an application contemplated in this section.8

[16] S42 of the Act states that an Ombud must reject an application by written

notice to the applicant if inter alia, he is satisfied that the dispute should be

dealt with in a court of law or other tribunal of competent jurisdiction.

[17] The Scheme contends that the Ombud has no discretion to exercise if the

application for dispute resolution does not meet the requirements of s39 of the

Act. He is obliged by s42 to reject the application. This is the position

because the relief sought by Dr. Groeneveld is of a personal nature and

should be dealt with by another tribunal of competent jurisdiction. The CSOS

argues that because it is permitted by s39(7) to accept any other application

that is not set out in s39 it was within its rights to accept the dispute resolution

application filed by Dr. Groenveld. It argues furthermore that it cannot reject

the application for dispute resolution based on technical reasons.

[18] I do not agree with the contention raised by the CSOS. When the application

was submitted for dispute resolution, it was incomplete in the sense that a

significant amount of information was missing from the prescribed application

form. The CSOS requested more information from Dr. Groenveld on the

information that had been omitted and the information was never

supplemented. The application as at the hearing of the application remained

incomplete. I struggled to cleanse more information on the last page of the

prescribed form as the information had been cut off. This in my considered

view was material and on not getting either an original from Dr. Groenveld or a

8
See s41(1)
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supplemented copy of the prescribed form, the second respondent ought to

have rejection the application on that ground alone.

[19] More importantly, the relief sought by Dr Groenveld was of a personal nature

and not related to any of the issues covered under s39 of the Act. She stated

in what could be cleansed from the incomplete application form that she

required an apology from the employees of the Scheme. The dispute

resolution application was not related to for instance a complaint that the

penalties imposed for violations of speed limit, fines about the pets were

incorrectly imposed. The apology she requires and the qualifications of the

second applicant as part of the application for dispute resolution, do not fall

within the issues forming the subject matter of the dispute to be resolved by

the CSOS as contemplated in legislation. The relief sought is of little concern

to the common interest of the members of the Scheme and in my view ought

to have been rejected as required by s42 of the Act.

[19] This court is not persuaded by the submissions made on behalf of the CSOS

that the acceptance of in the application for dispute resolution was motivated

by the general approach to reconcile the disputes between the Scheme and

its members. Whilst there is nothing untoward about such a good gesture,

se42 makes it clear when the CSOS must reject an application for dispute

resolution. The provisions of s42 are peremptory once the requirements set

out in s39 are not met.

[20] Having considered the papers before me and the arguments submitted on

behalf of the parties, I am of the view that the CSOS acted beyond the powers
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given to it by the Act to accept the application for dispute resolution.

Accordingly, the decision taken by it stands to be reviewed and set aside.

E. ORDER

[20] The order is made in the following terms:

(a) The decision taken by the second respondent, third respondent or their

delegates dated the 18th of November 2021 to accept the application

for dispute resolution by the first respondent is hereby reviewed and

set aside;

(b) The decision of the second the respondent or the third respondent or

their delegates is substituted with the following: “The Application for

Dispute Resolution is rejected pursuant to Section 42 of the

Community Schemes Ombud Service Act, 2011”.

(c) The third respondent is ordered to pay the costs of this application.

ML SENYATSI
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

DATE JUDGMENT RESERVED: 9 November 2022

DATE JUDGMENT DELIVERED: 12 May 2023

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APPEARANCES

Counsel for the Applicant: Adv C Humphries

Instructed by: AJ Van Rensburg Incorporated

Counsel for the Respondent: Adv Z Ngwenya

Instructed by: Magagula George Mcetywa Inc

Eagle Canyon Golf Estate Homeowners and Another v

Groenveld and Others (59207/ 2021) [2023] ZAGPJHC
468 (12 May 2023)