The Mooikloof Glen Estates Home Owners Association has taken legal action against a property owner, seeking to seize his land after he failed to construct a house within a year of acquiring the property. Tichawana Bhunu purchased the stand at Mooikloof Glen Estates in June 2014, and no penalties were in place at the time of the purchase as they were abolished in 2012.
In August 2017, the association reinstated building penalties during an annual general meeting. A grace period of two years was granted to those with incomplete houses, extending until September 1, 2019. After discussions related to the impact of Covid-19, a meeting was convened to consider relaxing building penalties and shifting the deadline to November 26, 2020. However, 30 homeowners voted in favor of retaining the penalties, while 10 opposed.
Dissatisfied with the resolutions, Bhunu sought resolution through the Community Schemes Ombud Service (CSOS). In his application, he requested a determination of the legality of the late building penalty, scrutiny of the proper procedures in imposing the penalty if found legal, and removal of the penalty if deemed illegal.
The CSOS adjudicator ruled in Bhunu’s favor, instructing the estate to cease charging building penalties and conduct penalty research, presenting the findings to homeowners. Unhappy with the decision, the estate approached the high court to set aside the adjudicator’s ruling.
In the high court, the estate argued that property buyers agree to estate conduct rules and cannot dispute or challenge resolutions. They also claimed that the adjudicator failed to apply the CSOS Act.
After reviewing the case, Judge Mandlenkosi Motha concurred that the adjudicator misapplied the law by not focusing on the legality of the resolution. Consequently, Judge Motha set aside the adjudicator’s decision, resolving the legal dispute over building penalties at Mooikloof Glen Estates.