Pillay v Whale Rock Heights Homeowners Association and Another (104/2025) [2025] ZAWCHC 224 (28 May 2025)

IN
THE HIGH COURT OF SOUTH AFRICA

(EASTERN
CIRCUIT LOCAL DIVISION, THEMBALETHU)

JUDGMENT

Not Reportable

Case no: 104/2025

In
the matter between:

THANAPAL
PILLAY                                                                    

       APPLICANT

and

THE
WHALE ROCK HEIGHTS HOMEOWNERS

ASSOCIATION                                                        

          FIRST
RESPONDENT

DEON
STEENKAMP                  
                   

               SECOND
RESPONDENT

Neutral
citation:     Pillay
v The Whale Rock Heights Homeowners’ Association and Another
(Case no 104/2025) [2025] ZAWCHC 224
(28 MAY 2025)

Coram:       
NUKU J 

Heard:         
14 April 2025

Delivered:   
28 MAY 2025

Summary:   
Review – decision of the trustees
of a homeowners association to approve building plans that did not
comply with the provisions of the Architectural
Guidelines of the
homeowners association that the trustees were responsible for
enforcing – decision of the trustees of a
homeowners
association to condone the building plans’ non-compliance
 comply with the provisions of the Architectural
Guidelines
where no application had been made for such condonation – in
both instances the trustees acting beyond the powers
conferred on
them by the Constitution of the homeowners association –
decision reviewed and set aside

ORDER

1.    
The First Respondent’s 23 July
2023 approval of the Second Respondent’s building plans in
respect of the building presently
being erected on Erf 8[…], as
well as the decision, which it claims to have taken on 18 February
2025, to condone a departure
from Item 1.2.1.2 of its Architectural
Guidelines in respect of Erf 8[…] are hereby reviewed and set
aside.

2.    
The respondents, jointly and
severally, the one paying the other to be absolved, are directed to
pay:

2.2.1   the
costs occasioned by the interdict application, including the
qualifying costs of the experts, David Friedman
and Steven Neufeld,
including the cost of Senior Counsel and appointing correspondent
attorneys to assist with file pagination
in George and Cape Town, and

2.2.2     
the costs of the review application,
including the qualifying costs of the experts, David Friedman and
Steven Neufeld, and including
the cost of Senior Counsel and
appointing correspondent attorneys to assist with file pagination in
George and Cape Town.

3.    
The costs referred to above, which
shall be in accordance with scale C, shall include the costs
occasioned by the postponement of
the application on 20 March 2025
and 28 March 2025

Nuku
J

[1]     
The final relief that the applicant seeks in these proceedings is the
review and setting aside
of decisions taken by the first respondent
(a) on 23 July 2023 to approve building plans submitted by the second
respondent (Building
Plans) which did not comply with the first
respondent’s Architectural Guidelines and Rules (Architectural
Guidelines), and
(b) on 18 February to condone the Building Plans’
non-compliance with the Architectural Guidelines in circumstances
when
there was no application for such condonation.

[2]     
The complaint is that the Building Plans do not comply with the
provisions of clause 1.2.1.2 of
the Architectural Guidelines which
prescribes a minimum requirement of not less than seventeen and a
half degrees in respect of
roof pitches.

It is common cause that
the roof pitch depicted in the Building Plans is less than seventeen
and half degrees.

[3]     
The applicant raises various grounds of review but based on the view
I take of the matter, there
is one review ground that is dispositive
of the matter, and it is the one that relates to the vires
which can be paraphrased as follows: as to the decision of 23 July
2023, the first respondent did not have the authority to approve

building plans that deviated from the requirements laid down by the
Architectural Guidelines, and as to the decision of 18 February
2025,
the first respondent had no authority to condone the Building Plans’
non-compliance with the requirements laid down
by the Architectural
Guidelines in the absence of an application for such condonation.

[4]     
The first respondent is a body corporate established in terms of
section 29(1) of the Cape Land
Use Planning Ordinance No. 15 of 1985.
In terms of its Constitution, the management and control of its
affairs vest in a Board
of Trustees which is referred to as the
Committee. Further, the Committee is, in terms of clause 11.1.2 of
the Constitution, entitled
and obliged to give effect to the
Constitution. In turn, clause 9.1 of the Constitution provides that
‘The Committee shall
enforce the Architectural Guidelines of
the Whale Rock Heights Private Estate on behalf of the Association.’

[5]     
In approving the Building Plans on 23 July 2023, albeit through an
oversight, the Committee clearly
acted beyond the powers conferred on
it by the Constitution. In fact, in so approving the Building Plans,
it acted contrary to
the Constitution, and it cannot and does not
claim to have any power so to act.

[6]     
As regards the decision to condone the Building Plans’
non-compliance with the requirements
laid down by the Architectural
Guidelines, it is common cause that the second respondent made no
application for condonation. The
Committee discovered its erroneous
approval of the Building Plans when it was in the process of
investigating complaints it had
received in relation to the house
that the second respondent was in the process of building. A minute
of the meeting where the
Committee is said to have made the decision
reads, in the relevant part, as follows:

‘A
discussion regarding the build on stand 8[…] was held. Specific
reference was made to the deviations from architectural guidelines

with regard to the pitch of the roof. It was acknowledged that the
plans had been approved by the Trustees in 2023 and submitted
as
approved to the Council – where the plans were also approved.
All indications from the two surveyors’ reports are
that the
construction was in compliance with the approved plans, and that it
would not exceed the maximum height limit. It was
further stated that
the architectural guidelines are guidelines, rather than strict rule,
and that there can be some discretion
with regard to these. It was
further agreed that any concerns raised by impacted members,
addressed through PPM, would be responded
to.’   

[7]     
It is clear from the above extract, that the Committee was not
presented with an application for
condonation for the non-compliance,
but it was deliberating over concerns that had been raised by
impacted members. Significantly,
the concern related to the Building
Plans’ non-compliance with the roof pitch requirements.

What the above extract
demonstrates is that the Committee granted the condonation as a way
of getting rid of the complaints that
had been raised by the
applicant as well as other members of the first respondent. In the
absence of an application for condonation
for the Building Plans’
non-compliance with the provisions of clause 1.2.1.2 of the
Architectural Guidelines, any discretional
powers to grant
condonation

that the Committee may
have had were not engaged. As such, the Committee acted beyond the
powers conferred upon it by the Constitution
when it granted the
condonation which had not been applied for.

[8]     
The review is, in my view, good. But the respondents say that the
applicant should be non-suited
for failure to join the local
authority with jurisdiction over the area where the subject property
is situated. The short answer
to this is that the local authority has
no interest in the enforcement of the Architectural Guidelines by the
first respondent.
The respondents have also not suggested any
interest of the local authority that may be adversely affected by a
judgment relating
to enforcement of the first respondent’s
Constitution and Architectural Guidelines. The non-joinder point is,
thus, bad in
law.

[9]     
A further point in limine that the respondent raised relates
to the applicant’s failure to utilise the internal dispute
resolution mechanisms either
in terms of clause 21 of the
Constitution or in terms of the provisions of the Community Schemes
Ombud Services Act, 9 of 2011
(CSOS Act).

[10]   
The first respondent puts this point no higher than suggesting that
it ‘would have greatly preferred
that the dispute raised by the
applicant should have been dealt with in terms

of the dispute resolution
procedures provided for in clause 21 of the Constitution of the
Association’. This is understandable
because clause 21.2.1
provides, in the relevant part, that if a matter is not resolved ‘it
may be dealt with in accordance
with the procedure as set out in this
clause.’ Thus, the applicant was not obliged to deal with his
concern in terms of the
procedure laid down by the Constitution but
could elect to do so. His election not to utilise that procedure can,
thus, be no basis
to non-suit him.

[11]   
The second respondent pleaded this preliminary point vaguely as
follows ‘My understanding is that the
correct forum for the
applicant declare a dispute with me would be in terms of the
Community Schemes Ombud Service Act, 2011 (“CSOS”).
This
Act was specifically adopted to deal with, among others, disputes
between members of a homeowners’ association in the
manner as
described therein.’

[12]   
In argument, reference was made to two decisions of this Court in
Heathrow[1]
and Sorronto[2]
in support of the proposition that this Court should only entertain
disputes emanating from community schemes in exceptional
circumstances.
Context, however, matters. I say this because in
Heathrow
this Court was dealing with a dispute in respect of which the CSOS
Act makes provision for whilst here the dispute goes to the
legality
of the decision. As this Court stated in Heathrow
the
High Court ‘is confined to reviewing the legality or
rationality of the conduct of a decision-making body’[3].
 

[13]   
Reference that was made to section 39(6) of the CSOS Act by the
respondents was unhelpful because on the
plain reading of that
provision it confers no review powers as part of the dispute
resolution mechanism. In the end I am of the
view that this point in
limine is also bad in law.

[14]   
At the commencement of the hearing there were divergent views between
counsel on whether the part A relief
still requires determination.
Counsel for the

applicant
indicated that the relief sought in part A still required
determination whereas the respondents’ counsel was of
the view
that it had become moot and had been overtaken by events because the
Court was now dealing with the review.

[15]   
Applicant’s counsel attempted to explain why the applicant
persisted with part A relief and from the
explanation it was clear
that it was for selfish reasons which would result in the part A
relief operating like an order given
in terms of section 18 (3) of
the Superior Courts Act, 10 of 2013 in that it would, if granted, not
be suspended by an appeal against an order made in respect of the
review.

[16]   
The relief sought in part A had clearly become moot because the
applicant sought it on the basis that it
would operate until the
outcome of the review application. I asked a rhetorical question –
if the court grants the interim
interdict – until when such
interdict would operate and there was no ready answer to that. The
only issue that remains are
the costs relating to part A which stood
over when the matter was postponed on 20 and 28 March 2025 with costs
standing over for
later determination.

[17]   
In my view, the costs, including the costs in relation to the
postponements on 20 and 28 March 2025 should
follow the result. What
triggered the application was

the
first respondent’s decision that was taken on 18 February 2025
which made it clear that the dispute would remain unresolved.
Prior
thereto, the applicant had been told that the matter is receiving
attention, and he would be kept informed.

Order

[18]    In
the result I make the following order:

18.1   
The First Respondent’s 23 July 2023 approval of the
Second Respondent’s building plans in respect of the building
presently being erected on Erf 8[…],
as well as the decision, which
it claims to have taken on 18 February 2025, to condone a departure
from Item 1.2.1.2 of its Architectural
Guidelines in respect of Erf
8[…] are hereby reviewed and set aside.

18.2   
The respondents, jointly and severally, the one paying the other to
be absolved, are directed to pay: