Hubener N.O and Others v HJ Pepler & PJ Human Share Block t/a Ridge Royal and Others (9026/2022P) [2023] ZAKZPHC 149 (25 October 2023)

Hubener N.O and Others v HJ Pepler & PJ Human Share Block t/a Ridge Royal and Others (9026/2022P) [2023] ZAKZPHC 149 (25 October 2023)

The court found that condonation for late filing of the appeal was warranted due to the cumulative reasons provided, including the deceased's death and procedural delays. The unsigned Agreement of Use and Occupation was accepted as a true reflection of the parties' contract, which governed their relationship since 2008. The adjudicator erred in law by failing to properly consider the contractual terms and relevant evidence, and by incorrectly finding that the deceased's liability for levies was common cause. The adjudication order was set aside as it lacked judicious consideration of the applicable statutes, contract, and evidence. The matter was remitted to the Community Schemes Ombud...

Citation
[2023] ZAKZPHC 149
Parties
Appellant: Celeste Estelle Hubener N.O.; Appellant: Natasha Hubener N.O.; Appellant: Shane Gilbert Hubener N.O.; Respondent: HJ Pepler & PJ Human Share Block t/a Ridge Royal; Respondent: Community Schemes Ombud Service; Respondent: Adv R T Reddy
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
25 October 2023
Case Number
9026/2022P
Procedural Posture
Civil Appeal / Appeal From Adjudication Order Under Section 57 of the Community Schemes Ombud Service Act
Outcome
Appeal upheld; adjudication order set aside; matter remitted for reconsideration; costs awarded against first respondent.
Judges
Shoba AJ
Legal Topics
Community Schemes Ombud Service Act, Condonation, Levy Liability, Unsigned Contracts, Administrative Action Review
Administrative Law Land and Property Community Schemes Ombud Service Act Condonation Levy Liability Unsigned Contracts Administrative Action Review

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 12 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Celeste Estelle Hubener N.O.

Appellant

Natasha Hubener N.O.

Appellant

Shane Gilbert Hubener N.O.

Appellant

HJ Pepler & PJ Human Share Block t/a Ridge Royal

Respondent

Community Schemes Ombud Service

Respondent

Adv R T Reddy

Respondent

Procedural Posture

Civil Appeal / Appeal From Adjudication Order Under Section 57 of the Community Schemes Ombud Service Act

Legal Issues

  1. 1 Whether condonation should be granted for late filing of the appeal under section 57 of the CSOS Act.
  2. 2 Whether the unsigned Agreement of Use and Occupation reflects the true agreement between the parties.
  3. 3 Whether the adjudicator erred in law by failing to consider the contractual relationship and relevant evidence.

Ratio Decidendi

The court found that condonation for late filing of the appeal was warranted due to the cumulative reasons provided, including the deceased's death and procedural delays. The unsigned Agreement of Use and Occupation was accepted as a true reflection of the parties' contract, which governed their relationship since 2008. The adjudicator erred in law by failing to properly consider the contractual terms and relevant evidence, and by incorrectly finding that the deceased's liability for levies was common cause. The adjudication order was set aside as it lacked judicious consideration of the applicable statutes, contract, and evidence. The matter was remitted to the Community Schemes Ombud...

Court Disposition

Appeal upheld; adjudication order set aside; matter remitted for reconsideration; costs awarded against first respondent.

Orders

  • Condonation is granted for non-compliance with the time frames for noting the appeal.
  • The unsigned copy of the Agreement of Use and Occupation is declared a true reflection of the agreement concluded between the first respondent and Steven William Hubener in 2008.