Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owner’s Association and Others (171/2024) [2025] ZASCA 155 (17 October 2025)

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SAFLII Note: Certain private/personal particulars of events or witnesses have been redacted from this doc in compliance with the legislation and SAFLII Policy

     THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case no:171/2024

 

 

 

In the matter between:

PARCH
PROPERTIES 72 (PTY)
LTD                                                             

APPELLANT

and

SUMMERVALE LIFESTYLE
ESTATE

OWNERS’
ASSOCIATION
                                                                                

FIRST RESPONDENT

THE
CITY OF CAPE TOWN
                                                       

SECOND RESPONDENT

THEODORE
BROPHY                                                                      

119^TH RESPONDENT

WILLEM
HENDRIK DU
PREEZ                                                       

192^ND RESPONDENT

AND
287 OTHER RESPONDENTS

 

Neutral
quotation:   Parch Properties 72 (Pty) Ltd v
Summervale Lifestyle Estate Owner’s Association and Others
(171/2024) [2025] ZASCA 155 (17 October 2025)

Coram:                
MOKGOHLOA, BAARTMAN and COPPIN JJA, and
STEYN and TOLMAY AJJA

Heard:                 
14 May 2025

Delivered:  
This judgment was handed down
electronically by circulation to the parties’ representatives by
email, published on the Supreme Court
of Appeal website, and released
to SAFLII. The date and time for hand-down is deemed to be 11h00 on
17 October 2025.

 

Summary: 
Community Schemes Ombud Act 9 of 2011 – jurisdiction of the
high court not ousted – whether refusal to amend the
constitution
of a Community Scheme was reasonable – test for
reasonableness objective and fact based – refusal was
reasonable.

 

ORDER

On
appeal from: Western
Cape Division of the High Court,
(Adhikari AJ sitting
as court of first instance):

1.             
The appeal is dismissed with costs, including the
costs of two
counsel where so employed.

JUDGMENT

Mokgohloa and Baartman
JJA (Coppin JA, and Steyn and Tolmay AJJA concurring):

 

Introduction

[1]          
The appellant, Parch
Properties 72 (Pty) Ltd (Parch), unsuccessfully applied to the
Western Cape Division of the High Court (the
high court), for
declaratory relief,^[1]
declaring, amongst different
issues, that its growth on Erf 6[…] (the backyard cottages) be
included within the definition of ‘Area’
within the structure
of Summervale Lifestyle Estate Owners’ Association (the HOA).
The latter is a property homeowners’
affiliation inside the
definition of ‘community scheme’ in s 1 of the Community
Scheme Ombud Services Act 9 of 2011
(the CSOS Act). The attraction and
conditional cross-appeal is with depart of the excessive court docket. At the
listening to the cross-appeal was deserted.

 

[2]          
In 2002, the City of Cape
Town (the City) accepted an utility^[2]
by the developer, White
Waves Trading (Pty) Ltd (White Waves), to subdivide and rezone Erf
5[…] to be developed as a retirement
village inside a gated
neighborhood. The growth would come with cluster houses, sectional
title items, a membership home, a frail care
centre and an administrative
block. The City imposed a number of situations on the approval, together with
{that a} Home Owners’ Association
(HOA) be established with an
accepted structure. Those situations have been met and that
structure varieties the topic of this litigation.
The growth is
generally known as the Summervale Lifestyle Estate (Summervale).

 

[3]          
The growth on Erf
5[…] was accomplished in two phases: – section 1 consisted of 162
free-standing cluster houses and section
2 consisting of 78 sectional
title flats and a care centre. In 2010-2011, White Waves utilized for
and was granted permission^[3]
for the rezoning,
departure and phasing of Erf 6[…]. The latter is adjoining to Erf
5[…], the property of the HOA. The City granted
the permission
topic to sure situations. One of which is the next:

‘(v)
that the topic property resort beneath the Summervale Lifestyle
Estate Home Owner’s Association and that their structure
be
amended accordingly.’

 

[4]          
Erf 6[…] was developed into 55 backyard cottages, with garages,
storage rooms, personal roads and personal open areas (the backyard
cottages). The backyard cottages, with a design type much like
the
dwellings on Summervale, are rented out. The HOA has since 2010
recognised the proprietor of Erf 6[…] as a member of Summervale,
in that
it was represented at annual basic conferences because the proprietor of section 3
and exercised a professional rata vote based on the items
it owned in
phases 1, 2 and three. The HOA due to this fact charged levies in respect of the
backyard cottages, which have been paid with out demur.
Since 2014, the
backyard cottages have turn out to be totally built-in with Summervale, in that
its tenants use the identical shared entry factors
and personal roads and
the identical safety measures apply to each developments. In 2015-2016,
White Waves, as a developer of the erf,
bought Erf 6[…] and all its
rights therein to Parch. Since 2015, the latter’s director has
been one of many HOA’s trustees.

 

[5]          
In 2021, a gaggle of Summervale residents (the Venter group)
questioned
whether or not the backyard cottages, section 3, shaped a part of
Summervale. They argued that clause 5.1 of Summervale’s
structure
offered that: ‘[m]embership of the Association
shall be evidenced by registered possession within the Deeds Registry in
Cape
Town of a number of erven within the Area’. The Venter group
additional contended that ‘Area’ is outlined in Clause 2.1.2

as ‘the [r]emainder of Erf 5[…] The S[…], together with
any subdivision thereof’. It is frequent trigger that the
backyard
cottages are on Erf 6[…], which isn’t included within the definition
of ‘Area’ within the structure.

 

[6]          
On 11 April 2022,
Summervale’s Trustees Committee unsuccessfully sought to amend
the structure by way of clause 14.2^[4]
by spherical robin poll.
Only 68% of the voters favoured the modification, as an alternative of the
required 75%. The following modification was sought:

‘Motion
to Amend [HOA] Constitution dated 2 August 2013:

The
present description of “2. DEFINITIONS

2.12
“Area” shall imply the rest of Erf 5[…] The S[…],
together with any subdivision thereof;”

To
be amended to learn as follows, with the inclusion of the underlined
phrases:

2.1.2
“Area” shall imply the rest of Erf 5[…] and Erf
6[…] The S[…], together with any subdivision thereof”

2.
The modification to be efficient retroactive to 1 December 2014 when
[the appellant] effected the primary levy funds to Summervale

Lifestyle Estate Owners Association’.

 

[7]          
On 6 June 2022, the
Committee, by way of clause 14.1,^[5]
made one other unsuccessful
try to amend the structure. The movement was opposed by a big
majority. At the time, 43 of the
backyard cottages had already been
constructed and the remaining have been in progress. Litigation adopted by which
Parch sought a declarator that
the backyard cottages have been included in
the phrase ‘Area’ within the HOA structure. Two members of
the Venter group, the
119^th
and 192^nd
respondents, opposed the
matter. However, 97 different members of the Venter group, 74 single
residential owners and 23 sectional
title homeowners, have expressed
help for the opposition in a petition. They haven’t formally
opposed as the potential for adversarial
prices orders seems to have
been daunting of their twilight years. Therefore, reference to the
Venter group from this level is
reference to the 119^th,
192^nd
respondents, in addition to
these petitioners. So as to not incur prices, the HOA abided by the
final result, and in correspondence dated
28 November 2022; its trustees
mentioned that they ‘support the relief moved for by the applicant’.

 

[8]          
In addition to the reduction sought, referred to above, Parch additionally
sought the next:

‘1.4
In the additional various, that by way of part 39(4)(d)
of the Community Scheme Ombud Services Act 9 of 2011 [CSOS Act], it
is said that the movement(s) which refused the modification
to the
Constitution by way of prayer 1.1 supra
are declared to be unreasonable and that they be put aside and
substituted with a movement that reads as follows…:

“That
clause 2.1.2 of the Constitution of the Summervale Lifestyle Estate
Owners’ Association is amended by altering the definition
of
“Area” to incorporate Erf 6[…], S[…], along with
Erf 5[…].”’

 

[9]          
The excessive court docket was persuaded that the matter ‘hinges on advanced

and novel problems with legislation’ which constituted particular
circumstances that justified Parch launching the appliance within the
excessive
court docket as an alternative of approaching the Ombud by way of the CSOS Act.
The deserted cross attraction associated to that discovering.

 

[10]      
Parch is not
pursuing the reduction sought in prayers 1.1 to 1.3[6].
Instead, it has restricted its attraction on this Court to the choice
reduction sought by way of the CSOS Act. Therefore, the problems
on this
attraction are:

(a)           
Whether the excessive court docket accurately assumed jurisdiction to entertain

the matter as a court docket of first occasion.

(b)          
Whether the excessive court docket erred in holding that the opposition to the

movement to amend the structure was affordable.

 

Did
the excessive court docket have jurisdiction to entertain the appliance as a
court docket of first occasion?

[11]      
In opposing the
utility, the Venter group denied that the excessive court docket had
jurisdiction to entertain the matter. Since Parch sought
reduction in
phrases of s 39(4)(d)
of the CSOS Act, so the
submission went, the Ombud, and never the excessive court docket had jurisdiction
over the dispute. Further, that the
excessive court docket’s jurisdiction
was restricted to appeals and opinions from the Ombud. The excessive court docket,
counting on Heathrow
Property Holdings No 33 CC and Others v Manhattan Place Body
Cooperate and Others[7]
(Heathrow)
held that ‘if the Ombud has the jurisdiction to grant such
orders, I have to decline to find out the matter, until there
are
distinctive circumstances warranting the court docket figuring out the matter
as a discussion board of first occasion’. The excessive court docket discovered
that there
have been distinctive circumstances current that clothed it with
jurisdiction.

 

[12]      
In contemplating the problem of jurisdiction, we discover it essential to
define the aim,
and the related provisions of the CSOS Act. Its
goal is to supply for: (a) the institution of the Community
Schemes Ombud
Service (the service); (b) its mandate and capabilities;
(c) a dispute decision mechanism in neighborhood schemes; and (d) to
present
for issues linked therewith. Importantly, the CSOS Act
was established, inter alia, for the aim of offering an
expeditious
and casual cost-effective mechanism for the decision
of disputes.

 

[13]      
Section 38(1) of the CSOS Act offers that any one that is a celebration
to or affected by
a dispute, could make an utility to the Ombud. A
dispute for the aim of the CSOS Act is outlined as ‘a
dispute in regard
to the administration of a neighborhood scheme between
individuals who’ve a fabric curiosity within the scheme, of which certainly one of
the events
is the affiliation, occupier or proprietor, appearing
individually or collectively’. Section 39 offers for the reduction
that may be claimed
within the utility. It states:

‘An
utility made by way of s 38 should embrace a number of of the
following orders:

(1)            
…

(2)            
…

(3)            
In respect of scheme governance points –

(a)            
an order requiring the affiliation to report a brand new scheme
governance
provision in keeping with a provision accepted by the affiliation;

(b)            
an order requiring the affiliation to approve and report
a brand new scheme
governance provision;

(c)            
…

(d)            
an order declaring {that a} scheme governance provision, having
regard
to the pursuits of all homeowners and occupiers locally scheme,
is unreasonable, and requiring the affiliation to
approve and report
a brand new scheme governance provision –

(i)             
. . .

(ii)           
. . .

(iii)         
to amend the provisions; or

(iv)          
to substitute a brand new provision.

(4)            
In respect of conferences –

(a)            
…

(b)            
…

(c)            
…

(d)            
an order declaring {that a} movement for decision thought of
by a
basic assembly of the affiliation was not handed as a result of the
opposition to the movement was unreasonable beneath the circumstances,

and giving impact to the movement as was initially proposed, or a
variation of the movement proposed; or

(e)            
…’

         
 

[14]   
As indicated above, a dispute is outlined as one relating to the
administration of a neighborhood scheme between
individuals with an curiosity
within the scheme, and one of many events being the affiliation. The
part offers that ‘an individual
could make an utility’.
Once the selection is exercised, the appliance ‘must’ be
made within the prescribed method.
That is a transparent indication of a selection
of discussion board. In addition, ‘association’ is outlined as ‘any
construction that
is accountable for the administration of a neighborhood
scheme’. The HOA is just not an opposing occasion on this dispute, it
being
frequent trigger that it helps Parch’s utility. Parch
can be not a member of the Summervale neighborhood, and it failed twice

to acquire the required votes to amend Summervale’s structure
to incorporate it as a member.

 

[15]   
In addition, ‘community scheme’ is outlined as:

‘…any
scheme or association by way of which there’s shared use of and
duty for elements of land and buildings, together with
however not
restricted to sectional titles growth scheme, a share block…’

In
Coral
Island Body
Corporate v Hoge (Coral
Island),[8]
the court docket handled a dispute by which the physique company of a
residential property sectional title scheme sought declaratory
and
interdictory reduction towards certainly one of its members. The dispute concerned
mundane problems with unauthorised alterations with inferior
piping to a
geyser overflow. Despite the mundane nature of the dispute, the court docket
held that:

‘Compelling
constitutional and social coverage concerns knowledgeable the
introduction of the laws that’s manifest within the
Ombud Act.
The promotion of entry to justice by these not simply in a position to afford
to litigate within the civil courts was however certainly one of
these concerns.
Another was the social utility to be achieved by the supply of a
comparatively low-cost and casual dispute
decision mechanism for the
disposal of community-scheme-related points. It requires little
perception to understand that these commendable
coverage concerns
could be liable to be undermined if the courts have been indiscriminately
to entertain and get rid of issues
that ought to quite have been
introduced beneath the Ombud Act. Whilst
judges and magistrates could not have the facility to refuse to listen to such
circumstances, they need to, for my part, nonetheless use their
judicial
discretion in respect of prices to discourage the inappropriate resort
to the courts in respect of issues that would,
and extra
appropriately ought to, have been taken to the Community Schemes Ombud
Service’. (Own
emphasis.)

 

[16]   
The Coral
Island strategy
is in keeping with the Constitution and the aim of CSOS and
associated laws. This Court in Standard
Bank of SA Ltd and Others v Thobejane and Others[9]
(Thobejane) held the
following concerning the abuse of a discussion board:

‘In
our nation, the Constitution establishes judicial authority. Several
Courts are created. Section 166(b)
creates the High Court and s 166(d)
creates the Magistrates’ Courts. The scope of the substantive
decision-making energy of those courts is addressed in ss 169
and 170.

…

 …Thirdly,
courts could make applicable prices orders. In Goldberg
v Goldberg,
Scheiner J mentioned that not solely might a ‘profitable applicant be
awarded solely Justice of the Peace’s court docket prices however he could even
be
disadvantaged of his prices and be ordered to pay extra prices incurred
by the respondent by motive of the case having been introduced
to the
Supreme Court’. The utility of all these guidelines entails a
truth particular enquiry on a case-by-case foundation…’

 

[17]   
Generally, the excessive court docket has authority to listen to any matter that comes
earlier than it, until the particular legislation
or rule expressly limits that
authority or grants it to a different tribunal. The query is whether or not
such limitation may be implied.
This Court in Thobejane
restated what Kriegler J
held in Metcash
Trading Ltd v Commissioner South African
Revenue Service and Another[10]
that ‘there’s a robust presumption towards the ouster of the
High Court’s jurisdiction, and the mere truth {that a} statute

vest jurisdiction in a single court docket is inadequate to create an
implication that the jurisdiction of one other court docket is thereby
ousted’.

 

[18]   
The CSOS Act doesn’t explicitly or implicitly exclude the excessive
court docket’s inherent jurisdiction to listen to
neighborhood scheme
disputes. The indisputable fact that the Ombud has wider powers doesn’t suggest the
exclusion of the court docket’s jurisdiction.
In our view, the Act was
designed to co-exist with the court docket system offering the events with
a selection of a discussion board, to not exchange
it completely.

 

[19]   
Counsel on behalf of Parch submitted, accurately in our view, that the
excessive court docket had jurisdiction to entertain
the appliance as a court docket
of first occasion. We are persuaded that the excessive court docket didn’t want
distinctive circumstances to entertain
this utility as a court docket of
first occasion. The dispute is deserving of the excessive court docket’s
consideration and shouldn’t have
attracted a Coral Island prices
order, had Parch been profitable. 

 

Was
it affordable to refuse to amend the structure?

[20]   
It is obvious that Phase 3 was envisaged as a part of a retirement
village. In opposing the modification to the
structure, the Venter
group complained that the backyard cottages are rented out with none
regard for the age of the tenants,
thereby compromising the character
of Summervale’s retirement village. Parch has not disputed that
allegation. That is a
related consideration in figuring out the
reasonableness of the opposition to the movement to amend the
structure.

 

[21]   
The take a look at for reasonableness is goal and requires a balancing of
all related elements. Both events agreed
with the next take a look at as
formulated within the
Australian case
Albrecht
v Ainsworth & Others:[11]

‘…the
take a look at was goal, requiring a balancing of things in all of the
circumstances based on the atypical that means of the time period

affordable. …The query was not whether or not the choice was
“correct” however whether or not it was objectively affordable.
A
logical and comprehensible foundation for a choice was a related however
not determinative consider deciding reasonableness which
was
in the end a query of truth. The subjective intention of the
particular person lot homeowners who opposed the movement was not the take a look at;
the
opposition should be thought of objectively, taking into consideration all
related circumstances…’

 

[22]   
As indicated above, Parch depends on the historic inclusion of the
backyard cottages in Summervale and alleges
{that a} mutually useful
relationship existed and additional, that it was broadly accepted that
the backyard cottages are ‘section
3’ of Summervale.
Conversely, the Venter group contends that Summervale’s
structure offers, in unambiguous phrases,
that ‘solely the
registered homeowners of erven and sectional title unit(s) on Erf 5[…],
together with any subdivision thereof, are
members of the primary
respondent [HOA]’. Therefore, the HOA is the authorized entity and
proprietor of the frequent property, price roughly
R60 million, in
which members personal particular person properties. White Waves began to
develop the adjoining property, Erf 6[…], which
it known as
the ‘phase 3 of the Summervale Estate development,’ ten
years after the institution of Summervale.
The Venter group takes
situation with that reference and contends that the event on Erf
6[…] is a separate growth accepted
by itself phrases.

 

[23]   
The HOA was not an applicant or occasion to the appliance for the land
growth rights and approvals on
Erf 6[…]. Therefore, the
municipal planning situations imposed on Erf 6[…] don’t bind the
HOA. Parch acquired the backyard cottages
from White Waves in 2015.
Some of the HOA’s trustees are additionally members of Parch. The
Venter group considers them conflicted
and alleges that these members
of the HOA’s board created the impression that Erf 6[…] was
an extension of Summervale.
The Venter group is adamant that that’s
a false narrative. They additional allege that these conflicted trustees
tried to coerce
the members of the HOA to conform to amend the
structure with threats. One such menace seems from a round
that reads as follows:

‘If
the vote is towards together with the backyard cottages into the membership
of Summervale (erf 6[…]) then the homeowners of the backyard
cottages
(Parch Properties) has already indicated that it’ll implement its
rights by the courts and declare damages from these
members that
vote towards this inclusion’.

 

[24]   
This prompted the 192^nd respondent to put felony expenses
of extortion towards the HOA’s trustees, a few of whom are
members of Parch and homeowners
in Summervale. The felony course of was
nonetheless pending when litigation began. The Venter group additional
alleges that it was disingenuous
of these conflicted trustees to
welcome and deal with Parch as a part of the HOA. They regard the failure
to realize 50% plus one vote
on the HOA’s Annual General
Meeting of 6 June 2022 as proof that there was no frequent intention
amongst its members to amend
its structure to incorporate Parch.

 

[25]   
The Venter group alleges that Parch ought to have ready a proposal
for its incorporation and that the HOA’s
trustees ought to have
tabled the identical for dialogue and consideration at a basic or
particular assembly. The Venter group perceives
the battle of some
trustees to be the trigger for not approaching the HOA’s members
in a conciliatory method, which could
have produced a unique
final result. The Venter group is of the view that Parch can’t be allowed
possession of the HOA’s R60
million frequent property with none
compensation and additional, that Parch is just not entitled to possession of
the HOA’s worthwhile
frequent property merely as a result of its tenants
share Summervale’s services and pay a levy for such use. The
Venter group does
not oppose the continuation of an association the place
Parch makes use of the HOA’s services and pays for such use.

 

[26]   
In addition, Parch is the proprietor of 43 backyard cottages that it rents
to individuals regardless of their age.
The Venter group alleges that
this coverage compromises the setting for many HOA members who’re
retired individuals. Parch’s
renting scheme has totally different
aims and traits, not shared by the vast majority of HOA
members. According to this argument,
the latter, of their twilight
years, purchased into Summervale to profit from a tranquil setting,
that’s incompatible with Parch’s
indiscriminate rental
setting. Nevertheless, the Venter group alleges that:

‘Whether
Applicant turns into a member of the First Respondent or not, nothing
prevents or prejudices the Applicant from persevering with
with its
growth of Erf 6[…]. The
similar applies in respect of arriving at an settlement (together with the
registration of servitudes pertaining to the usage of entry
and
personal roads (already forming a part of the Second Respondent’s
situations of approval) and the Applicant paying a charge
or service
levy for the use and pleasure of those services) for the long run
use and pleasure of the First Respondent’s
services and
infrastructure. No-one, together with the Applicant and the occupiers of
Erf 6[…] and the members of First Respondent,
shall be prejudiced
with such an association in place.
Applicant has superior no causes in its founding papers why such an
settlement or association, coupled with the Body Corporate
of
Summervale Gardens (the 291^st
Respondent and as soon as established) governing the affairs of the homeowners
of items on Erf 6[…] [Erf 6[…]], would profit all
the
events as adjoining land homeowners’. (Own emphasis.)

 

[27]   
The above is the view expressed by the Venter group. It is obvious
that there’s room for the events to
attain a mutually passable
and useful settlement. In MEC
for Education: KwaZulu-Natal v Pillay[12]
the Constitutional Court held that:

‘It
is clearly preferable for these issues to be handled by
approaching the related authority earlier than the problem arises. It

signifies an vital diploma of respect and a want to resolve the
matter amicably quite than by confrontation’.

 

[28]   
The Venter group complains that it has been disrespected and bullied.
In the prevailing circumstances, together with
the Venter group’s
effectively motivated mistrust, we conclude that the opposition to amending
the structure was affordable and
based mostly on the present goal
info.

 

[29]   
In the circumstances, we make the next order:

1.             
The attraction is dismissed with prices, together with the
prices of two
counsel the place so employed.

 

 

 

                                                                         

MOKGOHLOA

                                                                     

JUDGE OF APPEAL

 

                                                            

               

BAARTMAN

                                                                     

                 JUDGE
OF APPEAL                     

                 
        

 

Appearances

For the appellant:	S P Rosenberg SC
Instructed by:	Boy Louw Inc, Cape Town
	Rosendorff Reitz Barry Attorneys, Bloemfontein
For the 119th & 192nd respondents:	P Van Eeden SC
Instructed by:	Marais Muller Hendricks Inc, Cape Town
	Symington De Kok Attorneys,
	Bloemfontein.

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