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

The trustees of the WTH Trust, owners of a property within the Nuwekloof Private Game Reserve, failed to pay levies owed to the Farm Owners’ Association. Relying on clause 5.13 of its 2017 Constitution, the Association suspended the Trust’s membership privileges. The Trust applied to the Community Schemes Ombud Service (CSOS) under s 38 of the Community Schemes Ombud Service Act 9 of 2011, seeking a declaration that clause 5.13 was invalid. The CSOS adjudicator granted the relief and set aside the clause. The Association appealed to the Western Cape High Court under s 57(1) of the Act on a question of law. The High Court, sitting with two judges, upheld the appeal and set aside the adjudicator’s order. The trustees then sought and obtained special leave to appeal directly from the Supreme Court of Appeal (SCA), rather than first seeking leave from the High Court.

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

The case clarifies appellate procedure in matters arising from the Community Schemes Ombud Service and confirms that High Courts hearing appeals under s 57(1) of the CSOS Act act as courts of first instance. It reinforces the principle that appellate jurisdiction is strictly statutory and that inherent powers under s 173 of the Constitution cannot cure a lack of jurisdiction. The judgment limits the scope of earlier pragmatic exceptions and strengthens certainty regarding leave-to-appeal requirements.