Hanekom N O and Others v Nuwekloof Private Game Reserve Farm Owners' Association

The first and second appellants were trustees of the WTH Trust, which owned property in the Nuwekloof Private Game Reserve (the Reserve), a community scheme managed by the respondent Association. The Trust failed to pay certain levies to the Association, which invoked clause 5.13 of its 2017 Constitution, denying the defaulting member access to the Reserve and voting rights. On 24 February 2022, the Trust applied to the Community Schemes Ombud Service (CSOS) adjudicator for an order declaring clause 5.13 invalid. On 11 August 2022, the adjudicator granted the relief sought, declaring clause 5.13 invalid and ordering its removal. The Association appealed to the Western Cape High Court under section 57(1) of the Community Schemes Ombud Service Act 9 of 2011 (the Act), which permits appeals on questions of law only. The high court (two judges) heard the appeal on 18 November 2022 and on 30 January 2023 upheld the appeal and set aside the adjudicator's order. The Trust thereafter applied to the Supreme Court of Appeal for special leave to appeal in terms of sections 16(1)(b) and 17(3) of the Superior Courts Act 10 of 2013 (the SC Act), which was granted on 5 May 2023.

• Whether the Supreme Court of Appeal had jurisdiction to hear the appeal
• Whether an appeal from the high court sitting as a court of first instance on a statutory appeal from a CSOS adjudicator required leave under section 16(1)(a) of the SC Act or special leave under sections 16(1)(b) and 17(3) of the SC Act
• Whether the high court sat as a court of first instance or as a court of appeal when hearing the statutory appeal from the CSOS adjudicator
• Whether the adjudicator's decision constituted judicial or administrative action
• Whether the Supreme Court of Appeal could invoke its inherent powers under section 173 of the Constitution to hear the appeal despite lacking jurisdiction

The appeal was struck from the roll with costs, including the costs of two counsel, where so employed.

An appeal from a high court judgment on a statutory appeal from a CSOS adjudicator requires leave to appeal under section 16(1)(a) of the Superior Courts Act, not special leave under sections 16(1)(b) and 17(3). When the high court hears a statutory appeal from a CSOS adjudicator under section 57(1) of the Community Schemes Ombud Service Act, it sits as a court of first instance, not as a court of appeal. CSOS adjudicators perform administrative functions, and their decisions constitute administrative action, not judicial decisions. The registration of an adjudicator's order as a high court order under section 56(2) of the Act is merely an administrative formality to facilitate enforcement and does not convert the decision into a judicial one. The Supreme Court of Appeal's inherent power under section 173 of the Constitution to regulate its own procedures does not extend to assuming jurisdiction not conferred by statute. Leave to appeal is a jurisdictional fact, and without it, the Supreme Court of Appeal has no jurisdiction to entertain an appeal. An order granting special leave where the proper procedure was not followed is a nullity and can be disregarded by the Court.

The judgment by Weiner JA (Mantame AJA concurring) noted that the Court is at liberty not to follow the approach taken in Lewis and Montshiwa and refuse to entertain an appeal where it lacks jurisdiction, even if those cases adopted what they deemed a 'pragmatic approach.' Weiner JA observed that both Lewis and the majority in Montshiwa acknowledged they did not have jurisdiction but adopted a pragmatic approach that does not accord with earlier jurisprudence. The judgment by Ponnan JA (Makgoka JA and Masipa AJA concurring) went further, stating that the decisions in Lewis and Montshiwa were 'plainly wrong' insofar as they suggested the Court could 'carve out an exception' or adopt a 'pragmatic approach' to the question of jurisdiction. Ponnan JA emphasized that jurisdiction is a logically anterior question that either exists or does not, and cannot be overcome by the grant of condonation or invocation of special circumstances. Ponnan JA also addressed the apparent incongruity in adopting the reasoning in Lewis while concluding the Court lacked jurisdiction, explaining that even if the dicta in Lewis were merely expressions of opinion, their persuasive value was irresistible given they were deliberate statements closely related to the actual basis of the decision and were in conformity with public policy and sound reason. The Court cautioned against creating an undefined exception to jurisdictional requirements based on 'special circumstances,' noting it would not take great ingenuity for would-be appellants to contend that special circumstances exist in their cases.

This case clarifies the proper appeal route from decisions of statutory adjudicators such as the CSOS to the high court and then to the Supreme Court of Appeal. It confirms that when the high court hears a statutory appeal from an administrative body (even one limited to questions of law), it sits as a court of first instance. Consequently, any further appeal requires leave from the high court under section 16(1)(a) of the SC Act, not special leave from the Supreme Court of Appeal under section 16(1)(b). The judgment reinforces that jurisdiction is a fundamental prerequisite that cannot be overcome by invoking inherent powers under section 173 of the Constitution. The decision expressly departs from the approach adopted in Lewis and Montshiwa (majority), holding those decisions to be clearly wrong insofar as they suggested the Court could entertain appeals over which it lacked jurisdiction. The case provides important guidance on the nature of CSOS proceedings and the distinction between judicial and administrative appeals, ensuring that parties follow the correct procedural route and that courts do not assume jurisdiction they do not possess.