The Mooikloof Glen Estates Home Owners Association took a stand owner to the North Gauteng High Court in Pretoria in an effort to seize his stand after he failed to build a house within a year of buying the piece of land.
Tichawana Bhunu bought a stand at Mooikloof Glen Estates in June 2014.
There were no penalties in place when he bought the land, they were abolished in 2012.
In August 2017, an annual general meeting was held and building penalties were put back into place.
However, a grace period of two-years was given to those whose houses were still not complete, they were given until September 1, 2019.
Following Covid19, a meeting was held to discuss the relaxation of building penalties and move the date to November 26, 2020, however, 30 homeowners voted for the building penalties to remain and 10 voted against it.
In 2022, a meeting was held where the retention of building penalties was reiterated.
Dissatisfied with the resolutions, Bhunu brought an application to the Community Schemes Ombud Service (CSOS) for a resolution.
In his application, Bhunu wanted a determination to be made on whether or not the late building penalty is legal, and if the penalty is found to be legal, whether proper procedures followed in imposing the penalties. Lastly, if the penalty is found to be illegal, it should be removed from the rules.
The adjudicator ruled in Bhunu’s favour and ordered the estate to cease charging him building penalties.
The adjudicator further directed the estate to do a penalty research and make a presentation to the homeowners.
Disenchanted, the estate approached the high court, wanting to set aside the adjudicator’s decision.
Through their counsel, the estate submitted that when someone buys into an estate, they do so, subject to the conduct rules of that estate.
It was further argued that no person can dispute the resolution or impugn the resolution in any forum.
It was also submitted that the adjudicator failed to apply the CSOS Act when she made the award.
After surveying the matter, Judge Mandlenkosi Motha agreed that the adjudicator failed to properly apply the law to the facts presented to her.
“She was called to determine the legality of the resolution, instead she embarked on a process of interpretation and the analysis of the differences between a penalty and a fine, hence the reference to foreign authorities.
“...Accordingly, this court finds that the adjudicator misapplied the law, and the appeal stands to succeed,” said Judge Motha.
As a result, Motha set aside the adjudicator’s decision.
IOL News