Litabe v Community Scheme Ombud Service and Others (6223/2023) [2024] ZAFSHC 329 (25 October 2024)

Litabe v Community Scheme Ombud Service and Others (6223/2023) [2024] ZAFSHC 329 (25 October 2024)

The court found that both the applicant and the second respondent agreed the trustees acted unlawfully in allocating guest parking for exclusive use, and the applicant did not seek referral back to the adjudicator or insist on exclusive use. As there was no live controversy and the relief sought would have no practical effect, the application was moot and had to be dismissed. The second respondent, as the successful party, was entitled to costs on the ordinary scale, not a punitive scale. The Ombud and Elbert Height did not oppose and were not liable for costs.

Citation
[2024] ZAFSHC 329
Parties
Applicant: Tatoli Litabe; Respondent: Community Scheme Ombud Service; Respondent: Orapeleng Sebeco; Respondent: Elbert Height Complex Co-operative
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 October 2024
Case Number
6223/2023
Procedural Posture
Review Application / Final Judgment
Outcome
Application dismissed with costs.
Judges
NM MBHELE, JP DAFFUE
Legal Topics
Review of Ombud Decision, Sectional Title Rules, Ultra Vires Trustee Action, Mootness, Costs Award
Administrative Law Land and Property Review of Ombud Decision Sectional Title Rules Ultra Vires Trustee Action Mootness Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Tatoli Litabe

Applicant

Community Scheme Ombud Service

Respondent

Orapeleng Sebeco

Respondent

Elbert Height Complex Co-operative

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the Ombud's decision ordering removal of the applicant's trailer from guest parking should be reviewed and set aside.
  2. 2 Whether the trustees of Elbert Height acted ultra vires in allocating guest parking for exclusive use.
  3. 3 Whether the relief sought would have any practical effect or result given the parties' agreement on the illegality of the allocation.

Ratio Decidendi

The court found that both the applicant and the second respondent agreed the trustees acted unlawfully in allocating guest parking for exclusive use, and the applicant did not seek referral back to the adjudicator or insist on exclusive use. As there was no live controversy and the relief sought would have no practical effect, the application was moot and had to be dismissed. The second respondent, as the successful party, was entitled to costs on the ordinary scale, not a punitive scale. The Ombud and Elbert Height did not oppose and were not liable for costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant shall pay the costs of the application in addition to the costs order already made, including the second respondent's costs of opposition as well as the fees of counsel on scale B.