Conrad v Key West Body Corporate
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | TA Maumela J |
| Judgment Date | 28 June 2022 |
| Docket Number | 55262/2021 |
| Hearing Date | 21 December 2021 |
| Court | North Gauteng High Court, Pretoria |
| Citation | 2022 JDR 2005 (GP) |
Maumela J:
This application came before court on an urgent basis. In it, the applicant requests that the execution of the adjudication order in terms of section 53 of the Community Schemes Ombud Service Act 9 of 2011 granted on 12 July 2021 by the Community Schemes Ombud Service Adjudicator, Andre Andreas, be stayed pending finalisation of the appeal noted by the Applicant in terms of section 57 of the Community Schemes Ombud Service Act 9 of 2011 in this Honourable Court under appeal case number A325/2021 and ancillary relief. [1]
The Respondent opposes the application on the following grounds:
lack of urgency; [2]
non-joinder of Tyrone Zacks, being the co-owner of two units in the sectional title scheme together with the applicant; [3]
that exceptional circumstances exist that warrant this court not to grant a stay of the adjudication order; [4] and
That the merits of the appeal do not favour the Applicant. [5]
There is also an application for the intervention/joinder of Tyrone Zacks as Applicant to the urgent application. Although the Respondent's notice of intention to oppose was amended to include opposition to the aforementioned application, no answering affidavit was filed in respect thereof and as such, it stands uncontested.
PRELIMINARY ISSUES:
This matter was previously removed from the roll by agreement on the 22nd of November 2021. Costs were reserved [6] . The Respondent failed to file its answering affidavit within the allotted time-frames. As the matter was not ripe for hearing, and as matters with the similar circumstances were removed from the roll, the matter would not have proceeded. The full circumstances in
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respect of the aforementioned are contained in the Applicant's replying affidavit. [7]
The Applicant submitted that the removal was not due to his fault as the answering affidavit was only for after-hours on Friday 19 November 2021, after the application had to be submitted in full and was only uploaded on Case-Lines on Saturday 20 November 2021 where after the Applicant began with thereof.
RE: NON-JOINDER:
On receipt of the Respondent's answering affidavit, the Respondent noted a point in limine in respect of the non-joinder of Tyrone Sacks. Although the Applicant has a direct interest in the appeal and the urgent application and therefore possessed the necessary locus standi to note the appeal and to bring the urgent application, the issue of non-joinder still had to be addressed.
The Applicant submits that the non-joinder occurred in error due to the adjudication order only referring to the Applicant as party to the CSOS proceedings whilst it is clear from the order itself that there was more than one complainant involved [8] . He submits that this is further corroborated by the extract appearing in paragraph 48 of the Respondent's answering affidavit that clearly commences with the words "we have bought our unit..." [9]
The application for the intervention/joinder was issued [10] and in order to provide the Respondent with sufficient time to answer thereto, the earliest date to set the matter down was the 14th of December 2021, even in lieu of the hardship suffered by the Applicant. The replying affidavit was left over to deal with any issue on receipt of such answering affidavit.
The full set of facts pertaining to the above appear from the Applicant's replying affidavit. [11] Supplementary answering affidavit of the Respondent was served and uploaded on Case-Lines on Sunday, the 12th of September 2021. The Applicant pointed out
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that it is clear that the Respondent is in the practice of serving and filing affidavits over weekends as once again an affidavit, titled Respondent's supplementary answering affidavit was served on the 12th of September 2021 [12] .
He points out that the affidavit deals with the alleged present breach of the Applicant's letter issued in August 2021; forbidding any short-term rentals in the sectional title scheme. The Applicant submits that the purpose of this affidavit is once again to facilitate the removal of the matter from the roll. This is corroborated by the fact that no new practice note was filed by the Respondent.
The Applicant submitted further that no cognizance should be given to this affidavit. He points out that in any event, the content thereof takes the matter no further and it further contains submissions of alleged rentals where it is clearly not the case as the owners of the units also occupied units together with these individuals. The only contentious unit that may have breached the moratorium imposed in August 2021 is unit 124 and it would have been expected that security would have dealt with the matter. In the Respondent's answering affidavit, in enabling it conceded that no rentals were possible in respect of unit 97. [13]
THE APPLICABLE LAW IN RESPECT OF AN APPLICATION FOR THE STAY OF THE ADJUDICATION ORDER PENDING APPEAL:
The Judge President of this Division issued a directive in terms of section 14(1) of the Superior Court Acts 10 of 2013, constituting a Full Court for the purpose of determining the manner and procedure to be followed when noting such an appeal. In the case of Stenersen & Tulleken Administration CC v Linton Park Body Corporate & Another [14] , the Court was called upon to determine which category of appeals an appeal brought in terms of section 57 of the Act falls under and what process must be followed by an appellant in launching such an appeal. It was held that an appeal in terms of section 57 is a true appeal in the strict sense and it involves a consideration of whether the adjudicator's decision was
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right or wrong, on the material before him with the proviso that the right of appeal is limited to questions of law only.
The applicant points out that the abovementioned is further amplified by section 56 of the Community Schemes Ombud Service Act 9 of 2011 which provides that an order handed down by an adjudicator must be enforced as if it were a judgement of the High Court or Magistrates Court. Section 57(3) of the Community Schemes Ombud Service Act 9 of 2011 however states that 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 and the adjudication order is therefore not automatically suspended in terms of section 18(3) of the Superior Courts Act 10 of 2013.
As an adjudication order was found to be an appeal in the strict sense, section 18(3) of the Superior Courts Act 10 of 2013 cannot be disregarded. In terms of section 18(3)(1), the execution of a decision which is the subject of an appeal is suspended, pending the outcome of such appeal, unless under exceptional circumstances the court orders otherwise. In terms of section 18(3)(3) of the Superior Courts Act 10 of 2013, a court may only order otherwise, if the party that applied to the court to order otherwise in addition proves on a balance of probabilities that it would suffer irreparable harm if the court does not do so.
Of further significance is the fact that the SCOS adjudicator enjoys the same privileges and immunities from liability as a judge of the High Court [15] and his order is enforceable in the court having jurisdiction, be it the High Court. [16] The unfortunate happenstance is that an application for a stay of an adjudication order was not dealt with in the decision in the Stenersen & Tulleken Administration CC v Linton Park Body Corporate & Another case [17] and recourse to decisions of other Divisions finding that an appeal of this nature should be in the form of a judicial review to be brought on motion does not therefore provide clarity in this regard.
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The above was in part addressed in Kibo Property Services (Pty) Ltd and Others v Purported Board of Directors Amberfield Manor Hoa NPC and Others [18] where it was found that the Applicant should make out a case that:
there is an appeal pending; and
that the suspension sought in terms of the statutory relief is aimed at securing the effectiveness of the appeal.
The requirements for an interim interdict that may assist the court in respect of the above are:
(i). a prima facie right;
(ii). an injury or injury reasonably apprehended;
(iii). balance of convenience; and lastly;
that no suitable alternative legal remedy is available at the disposal of the Applicant.
The requirement of harm plays no factor and as stated in the aforementioned matter that [19] : "The import of this is that the test for urgency begins and ends with whether the Applicant can obtain substantial redress in due course. It means that a matter will be urgent if the Applicant can demonstrate, with facts, that it requires immediate assistance from the court, and that if that application is not heard earlier than it would be in due course, any order that may later be granted will by then no longer be capable of providing the legal protection required"
As was already confirmed in East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd [20] , in terms of Rule 45A of the uniform rules of court: "The 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 Act." That is indeed correct and it is submitted that that an appeal in the strict sense should be dealt with under the Superior Courts Act.
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If the above is proven, the Respondent can in terms of section 18(3) of the Superior Courts Act only request a stay to not be...
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