Mogashoa and Others v Zwavel's Nest Homeowners Association (Pty) Ltd and Others (30715/2021) [2024] ZAGPPHC 986 (26 September 2024)

Mogashoa and Others v Zwavel's Nest Homeowners Association (Pty) Ltd and Others (30715/2021) [2024] ZAGPPHC 986 (26 September 2024)

The application before the court, although purporting to be an appeal under section 57 of the Community Schemes Ombud Service Act, is not a valid appeal as it was brought by notice of motion rather than notice of appeal. The procedure adopted by the applicants is fundamentally defective and cannot be condoned. The applicants failed to remedy the procedural defect despite being alerted to it and did not seek proper condonation. The setting down of the main application was not irregular, and the application is declared a nullity. The applicants are not precluded from launching a proper appeal accompanied by a substantive application for condonation, but this application is dismissed.

Citation
[2024] ZAGPPHC 986
Parties
Applicant: Malose C Mogashoa; Applicant: Mmapula L Kekana; Applicant: Jacob J Mabasa; Respondent: Zwavel's Nest Homeowners Association (Pty) Ltd; Respondent: Community Schemes Ombud Service, Gauteng; Respondent: Karen Bleijs (Adjudicator)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 September 2024
Case Number
30715/2021
Procedural Posture
Review Application / Application to Set Aside Adjudicator's Order and Condonation for Late Filing
Outcome
Application dismissed as irregular and a nullity.
Judges
Williams
Legal Topics
Community Schemes Ombud Service Act, Condonation, Irregular Proceedings, Notice of Appeal, Penalties for Noncompliance
Civil Procedure Land and Property Community Schemes Ombud Service Act Condonation Irregular Proceedings Notice of Appeal Penalties for Noncompliance

Case Brief

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Parties

Malose C Mogashoa

Applicant

Mmapula L Kekana

Applicant

Jacob J Mabasa

Applicant

Zwavel's Nest Homeowners Association (Pty) Ltd

Respondent

Community Schemes Ombud Service, Gauteng

Respondent

Karen Bleijs (Adjudicator)

Respondent

Procedural Posture

Review Application / Application to Set Aside Adjudicator's Order and Condonation for Late Filing

Legal Issues

  1. 1 Whether the applicants' application, brought by notice of motion instead of notice of appeal, constitutes a valid appeal under section 57 of the Community Schemes Ombud Service Act.
  2. 2 Whether the late filing of the purported appeal can be condoned.
  3. 3 Whether the setting down of the main application was irregular in light of the pending Rule 30 application.

Ratio Decidendi

The application before the court, although purporting to be an appeal under section 57 of the Community Schemes Ombud Service Act, is not a valid appeal as it was brought by notice of motion rather than notice of appeal. The procedure adopted by the applicants is fundamentally defective and cannot be condoned. The applicants failed to remedy the procedural defect despite being alerted to it and did not seek proper condonation. The setting down of the main application was not irregular, and the application is declared a nullity. The applicants are not precluded from launching a proper appeal accompanied by a substantive application for condonation, but this application is dismissed.

Court Disposition

Application dismissed as irregular and a nullity.

Orders

  • The application is dismissed.
  • The applicants are ordered to pay the costs of the application on Scale C, including the costs of senior counsel.