In Hanekom N O and Others v Nuwekloof Private Game Reserve Farm Owners Association a trust referred a levy dispute with a Homeowners’ Association (“the HOA”) to the Community Schemes Ombud Service (“CSOS”) for resolution. The CSOS Adjudicator found in favour of the trust.
The HOA thereafter successfully appealed the CSOS Order to the High Court under s 57(1) of Community Schemes Ombud Service Act 9 of 2011 (“CSOS Act”). Not satisfied with the High Court’s decision, the Trust then applied to the Supreme Court of Appeal (“SCA”) for special leave to appeal the judgment of the High Court under s 16(1)(b) of the Superior Courts Act 10 of 2013 (“the SC Act”).
The SCA refused to entertain the appeal on the basis that it did not have jurisdiction to do so.
The SCA held that the trust first had to apply for leave to appeal from the Judges who heard the CSOS appeal, under s 16(1)(a) of the SC Act.
The difference between s 16(1)(a) and s 16(1)(b) of the SC Act lies in the fact that under s 16(1)(a), an appellant must first approach the court a quo for leave to appeal. S 16(1)(b) deals with the procedure where the SCA may be approached directly for special leave to appeal.
The correct route for an appeal from the High Court is to follow the procedure in s 16(1)(a). The court a quo will then hear the application and decide whether leave to appeal should be granted and, if so, whether the appeal should be heard by the Full Bench of that Division (three Judges) or to the SCA.
The general rule is that a High Court appeal should be referred to the Full Bench unless the decision involves an important legal question, or the administration of justice requires that the appeal should be heard by the SCA.
Only once the court a quo has dismissed the application for leave to appeal, or the Full Bench decided the appeal, may the SCA be petitioned directly for special leave under s 16(1)(b) of the SC Act.
In the Hanekom case, the Trust made the mistake of thinking that the High Court hearing the CSOS appeal sat as a court of appeal. The SCA emphasised that an appeal under the CSOS Act is a statutory appeal, and not a judicial appeal. This means that when the High Court dealt with the matter, it did so for the first time. It was thus the ‘court or first instance’ (or, in legal parlance, the court a quo).
As a result of this, it was not open to the Trust to approach the SCA for special leave to appeal before it exhausted the procedure under s 16(1)(a).
Case Discussed
*Hanekom N O and Others v Nuwekloof Private Game Reserve Farm Owners Association (502/2023) [2024] ZASCA 154 (12 November 2024)
About the Author
Freddie Terblanche is an attorney with more than 15 years PQE and regularly advises Homeowners Associations, Body Corporates and property owners on disputes before the Community Schemes Ombud Service.