Evergreen Property Investments (Pty) Ltd v Messershmidt (A409/2017) [2018] ZAGPPHC 786; 2019 (3) SA 481 (GP) (10 October 2018)

Evergreen Property Investments (Pty) Ltd v Messershmidt (A409/2017) [2018] ZAGPPHC 786; 2019 (3) SA 481 (GP) (10 October 2018)

The court held that the adjudicator lacked jurisdiction under the Community Schemes Ombud Service Act to order repayment of the municipal rates rebate to the respondent. The payment of rates and taxes is a statutory obligation and, while the Life Right Agreement and scheme documentation address the administration of...

Source-derived case information.

Citation
[2018] ZAGPPHC 786
Parties
Appellant: Evergreen Property Investments (Pty) Ltd; Respondent: Leon Jacques Messerschmidt
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 October 2018
Case Number
A409/2017
Procedural Posture
Civil Appeal / Appeal From Adjudicator's Order Under Community Schemes Ombud Service Act
Outcome
Appeal upheld with costs; adjudicator's order set aside; respondent to pay costs of appeal.
Judges
Janse Van Nieuwenhuizen, U Bhoola
Legal Topics
Community Schemes Ombud Service Act, Rates Rebate, Jurisdiction of Adjudicator, Housing Development Schemes for Retired Persons, Municipal Property Rates Act
Land and Property Administrative Law Community Schemes Ombud Service Act Rates Rebate Jurisdiction of Adjudicator Housing Development Schemes for Retired Persons Municipal Property Rates Act

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Summary, issues, holding and outcome

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Parties

Evergreen Property Investments (Pty) Ltd

Appellant

Leon Jacques Messerschmidt

Respondent

Procedural Posture

Civil Appeal / Appeal From Adjudicator's Order Under Community Schemes Ombud Service Act

Legal Issues

  1. 1 Whether the adjudicator had jurisdiction under the Community Schemes Ombud Service Act to order repayment of municipal rates rebate to the respondent.
  2. 2 Whether the rates policy created a statutory obligation enforceable by the respondent against the appellant to pass on the rates rebate.

Ratio Decidendi

The court held that the adjudicator lacked jurisdiction under the Community Schemes Ombud Service Act to order repayment of the municipal rates rebate to the respondent. The payment of rates and taxes is a statutory obligation and, while the Life Right Agreement and scheme documentation address the administration of the scheme, the City of Johannesburg rates policy does not create a statutory obligation enforceable by the respondent against the appellant. The policy requires the benefit of the rebate to be passed on but does not specify the manner of passing on nor does it empower the adjudicator to order direct payment. The adjudicator exceeded her powers under section 39(1) of the Act,...

Court Disposition

Appeal upheld with costs; adjudicator's order set aside; respondent to pay costs of appeal.

Orders

  • The appeal in terms of section 57 of the Community Schemes Ombud Service Act 9 of 2011 is upheld with costs.
  • The order made by the adjudicator in terms of section 54 of the said Act is set aside.