Turley Manor Body Corporate v Pillay and Others (10662/18)  ZAFSHC 54 (6 March 2020)
The Applicant sought to review and set aside an adjudication order made by an adjudicator, the Second Respondent, appointed by the Board of the Community Schemes Ombud Service, the Third Respondent. The adjudication order arose from a complaint made by the First Respondent, a member of the Applicant’s sectional title scheme, relating to whether certain garden areas which had been registered as common property were, in fact, exclusive use areas (“EUAs”) in terms of s 27 and s 27A of the Sectional Titles Act 95 of 1986 (“the Act”). After the complaint was referred to conciliation in terms of s 48 of the Act, a settlement agreement was concluded whereby a meeting by the members of the body corporate would be held to decide whether the garden areas were to be converted to EUAs or were to be left as common property. Such meeting was subsequently held where the members of the body corporate voted against conversion. Thereafter, the dispute was referred to adjudication where the Second Respondent made an order requiring the Applicant to register the garden areas as EUAs in accordance with s 27 of Act and to re-evaluate its levy calculations for each unit to take into consideration the expanded EUAs.
In the matter before the Court, the First Respondent opposed the Applicant’s review application, in the first place, on the basis that the Applicant was required to seek relief by exercising its right of appeal in terms of s 57 of the Act and, in the second place, that a review is not competent because the exercise of the Adjudicator’s powers do not constitute administrative action.
The Court found that the right of appeal in terms of s 57 is a narrow one in that it is not concerned with reviewable irregularities and, as such, does not exhaust the recourse available to a person dissatisfied with an adjudicator’s order. The Court found that an interpretation of s 57 of the Act that excludes the court’s review jurisdiction would exclude the fundamental right to administrative action that is lawful, reasonable and procedurally fair as required by the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). Accordingly, the Court found that s 57 in no way curtails the right of persons to exercise their rights under PAJA to bring orders of an adjudicator under judicial review.
Furthermore, the Court found that, because the order of an adjudicator in terms of the Act is a decision taken by a functionary of a juristic person (the Second Respondent) exercising a public function, such orders falls clearly within the meaning of administrative action as defined in s 1 of PAJA. It was therefore found that the First Respondent’s contentions that the Applicant could not bring a review should fail and that, because the order of the Second Respondent could not be defended on the merits, it stood to be reviewed and set aside.