Mary Fisher and Another v The Silverbirch Estate Homeowners' Association (NPC) and Others

The dispute arose in 2020 between Mary Fisher Snr (first applicant) and her daughter Puso Fisher Jnr (second applicant), who co-own a residential unit in the Silverbirch Estate, and the Silverbirch Estate Homeowners' Association (SEHA) and its chairman Johannes Heyneke (second respondent). The applicants claimed that Fisher Snr had been lawfully appointed as a director of SEHA, while SEHA and Heyneke contended that Fisher Snr had unlawfully amended CIPC records to reflect herself and two others as directors and had taken control of the board without authority. Heyneke launched High Court proceedings in August 2021 to compel the CIPC to remove Fisher Snr and two others from the records and to substitute himself and two purported lawful directors. The applicants opposed the application, raised technical defences under the Companies Act and the Community Schemes Ombud Service Act, and lodged a counter-application. The High Court found in favour of SEHA and Heyneke, made adverse credibility findings against Fisher Snr, ordered the CIPC to amend its records, and ordered Fisher Snr to pay costs. No order was made against Fisher Jnr. Leave to appeal was refused, and a subsequent petition to the Supreme Court of Appeal for special leave to appeal was dismissed. Fisher Snr and Fisher Jnr then applied for reconsideration under s 17(2)(f) of the Superior Courts Act. It later emerged that Fisher Snr and her fellow purported directors had resigned on 16 March 2024, four days before the petition order was handed down on 20 March 2024. Fisher Jnr had no standing to petition as no order had been made against her.

• Whether the jurisdictional threshold for reconsideration under s 17(2)(f) of the Superior Courts Act was met, given that the first applicant had resigned as a director before the petition order.
• Whether the intended appeal was academic or moot under s 16(2)(a)(i) of the Superior Courts Act because the orders concerning CIPC directorship records no longer had any practical effect.
• Whether the second applicant had standing to petition for special leave to appeal and to seek relief under s 17(2)(f).
• Whether the court was bound by the two-stage approach in Motsoeneng and Bidvest or by the contrary approach in 4 Seasons when considering a s 17(2)(f) application.
• Whether the correct order when the jurisdictional threshold is not met is to strike the application from the roll or to dismiss it.
• Whether the first and second respondents should be ordered to pay the costs of their condonation application for the late filing of heads of argument.

The first and second respondents shall pay the first applicant's costs (if any) incurred as a result of their application for condonation for the late filing of their heads of argument. Save as aforesaid, the application for reconsideration is struck from the roll with costs, such costs to be paid by the first applicant.

Under s 17(2)(f) of the Superior Courts Act, the reconsideration court must first determine whether the jurisdictional threshold is met (grave failure of justice or administration of justice brought into disrepute); if it is not met, the court lacks jurisdiction to reconsider the petition order and the application must be struck from the roll. Where the decision sought to be appealed will have no practical effect or result by the time of the reconsideration application—such as where an applicant has resigned from the directorship that is the subject of the CIPC amendment order—the requirements of s 17(2)(f) are not satisfied and the appeal would be susceptible to dismissal under s 16(2)(a)(i) of the Superior Courts Act alone. An appeal lies against the order of the court, not against its reasoning or adverse credibility findings.

The minority view (Mocumie JA) that dismissal rather than striking from the roll is the proper order when a s 17(2)(f) application fails on jurisdictional grounds, to promote finality and avoid legal confusion. Goosen JA's extensive critique of 4 Seasons and observations on the doctrine of stare decisis, noting that a subsequent court may only depart from binding precedent if it can demonstrate coherently and compellingly that the prior authority was palpably wrong, which 4 Seasons failed to do. Observations that the second applicant lacked standing to petition for leave to appeal and to seek s 17(2)(f) relief because no order had been made against her by the High Court. Observations regarding the nature of the President's discretion under s 17(2)(f) and that the court steps into the shoes of the original petition judges only after the jurisdictional threshold is established.

The judgment applies the amended threshold under s 17(2)(f) of the Superior Courts Act (requiring a grave failure of justice or a risk that the administration of justice may be brought into disrepute) and reinforces that a five-member panel decision binds smaller panels, reaffirming the authority of Motsoeneng and Bidvest over the three-member panel decision in 4 Seasons. It demonstrates that where an intended appeal would have no practical effect under s 16(2)(a)(i) of the Superior Courts Act, the reconsideration threshold is not satisfied. The case also contributes to the procedural debate on whether a s 17(2)(f) application should be struck from the roll or dismissed when the court lacks jurisdiction, with the majority favouring striking from the roll. Additionally, it illustrates the intersection between Companies Act directorship disputes and homeowners' associations under the Community Schemes Ombud Service Act.