THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 304/2020
In the matter between:
THE TRUSTEES FOR THE TIME BEING OF THE LEGACY
APPELLANT
BODY CORPORATE

and

BAE ESTATES AND ESCAPES (PTY) LIMITED

FIRST RESPONDENT
PAM GOLDING PROPERTY MANAGEMENT

SERVICES (PTY) LIMITED

SECOND RESPONDENT

Neutral citation: The Trustees for the time being of the Legacy Body Corporate v
Bae Estates and Escapes (Pty) Ltd and Another (Case no 304/2020) [2021]
ZASCA 157 (5 November 2021)
Coram:
PETSE AP, MBHA and MAKGOKA JJA and POTTERILL and
PHATSHOANE AJJA
Heard:
26 August 2021
Delivered:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and release to SAFLII. The time and date for hand down is deemed to be 10h00 on
the 5th day of November 2021.
Summary: Sectional Title Scheme – whether a body corporate’s decision to prohibit
an estate agency from operating within its scheme amounted to administrative action
for purposes of PAJA – if PAJA not applicable, whether decision subject to judicial
review in terms of the common law.

___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Western Cape Division of the High Court, Cape Town (Bozalek J
sitting as court of first instance): judgment reported sub nom BAE Estates and
Escapes (Pty) Ltd v Trustees for the Time Being of the Legacy Body Corporate and
Another 2020 (4) SA 514 (WCC).

The appeal is dismissed with costs, including the costs of two counsel.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Makgoka JA (Petse AP, Mbha JA and Potterill and Phatshoane concurring):
[1] In May 2019 the appellant, the Trustees for the Body Corporate for The Time
Being of the Legacy Body Corporate (the trustees), decided to prohibit the
first respondent, Bae Estates and Escapes (Pty) Ltd (Bae Estates), from operating
within a sectional title scheme (the scheme) administered by the trustees in
Green Point, Cape Town. On 4 February 2020 the Western Cape Division of the High
Court (the high court), at the instance of Bae Estates, set aside the trustees’ decision.
It concluded that the decision was an administrative action envisaged in the Promotion
of Administrative Justice Act 3 of 2000 (PAJA), and that, in any event, the decision
was reviewable at common law. The appeal is with the leave of the high court.
[2] The body corporate was established in terms of s 2 of the Sectional Title
Schemes Management Act 8 of 2011 (the ‘Schemes Management Act’ or ‘the Act’). In
terms of s 10 of the Schemes Management Act, a sectional title scheme must as from
the date of the establishment of the body corporate, be regulated and managed by
means of rules which must provide for the regulation, management, administration and
use and enjoyment of sections and common property. In terms of s 10(2), the rules
must comprise (a) management rules and (b) conduct rules.

[3] The facts which gave rise to the dispute between the parties are
uncontroversial. Bae Estates is an estate agency that sells and rents properties on
behalf of property owners in Cape Town and the surrounding areas. In May 2018 it
was engaged by a property owner in the scheme, to procure a tenant for his property
on a long-term rental. Bae Estates delivered on its mandate, and a lease agreement
was concluded between the tenant and the owner in July 2018. In terms of the lease
agreement, among other provisions, the tenant was permitted to sub-let the property
on short-term holiday lease, which the tenant himself later did without reference to Bae
Estates. Subsequently, there were complaints by some property owners about the
conduct of some of the sub-tenants, including excessive noise and other unruly
behaviour. According to the trustees, these sub-tenants were sourced by Bae Estates,
which they accused of having failed to properly vet the sub-tenants. For its part, Bae
Estates denied that it had procured the sub-tenants on behalf of the owner.
[4] On 14 May 2019 the trustees informed the owner that they had resolved in
terms of rule 37.3 of the body corporate conduct rules, that he was no longer allowed
to carry on with short-term letting for his property. Rule 37.3 reads as follows:
‘37
An owner may let or part with occupation of his section provided:
. . .
37.3
that in order to retain the nature of the Scheme, short term holiday letting shall be
permitted provided that such short-term holiday letting is managed through a letting agency
which is considered to be reputable for such purpose in the sole discretion of the Trustees.
The Trustees shall in their sole discretion have the right to restrict any short-term letting. . . .’
[5] From 15-21 May 2019 the trustees wrestled with the question asked by one of
them whether, ‘[i]n light of all the events . . . there was any potential scope to prohibit
[Bae Estates] from operating within the Legacy. . . ’. By 21 May 2019, the trustees had,
by way of an email round-robin, voted to prohibit Bae Estates from operating within
the scheme. The same day, the resolution was communicated by email almost
simultaneously to both the owner and Bae Estates. The email to Bae Estates read as
follows:
‘In terms of rule 37.3 of the body corporate rules, short term holiday is permitted provided that
it is managed through a letting agency which is considered to be reputable in the sole
discretion of the Trustees.’

After setting out the provisions of rule 37.3, the trustees concluded:
‘Due to recent incidents at Unit 107 the Trustees have resolved to restrict Bae Estates from
operating within The Legacy with immediate effect’.
[6] Bae Estates immediately objected to the decision and reiterated that it had
nothing to do with the short-term letting of the property. Furthermore, Bae Estates
stated, this had been the responsibility of the tenants, who had been permitted to do
so by the owner. It accordingly requested the trustees to reverse their decision, which
the trustees declined to do.
[7] Consequently, Bae Estates launched an application in the high court on an
urgent basis, against the trustees and the second respondent, Pam Golding Property
Management Services (Pty) Ltd (Pam Golding) which is the managing agent of the
scheme. Bae Estates sought an interim interdict against the trustees from
implementing the decision, pending an application to review and set it aside. Despite
the relief in the notice of motion being for an interim relief pending the outcome of a
review application, the high court treated the application as one for the review of the
trustees’ decision. Nothing turns on this aspect. No substantive order was sought
against Pam Golding which, accordingly, did not oppose the application, and
consequently did not participate in this appeal.
[8] Bae Estates asserted that the trustees’ resolution was: (a) unlawful and passed
in error as conduct rule 37.3 had no application to it since it was not engaged in any
short-term holiday letting; (b) procedurally unfair as it was passed without any prior
investigation into its role and without any prior notice to it; and (c) arbitrary and taken
with an ulterior motive, namely, to simply prevent it from carrying on business within
the scheme. Bae Estates further contended that the decision amounted to
administrative action, and thus susceptible to be reviewed in terms of PAJA,
alternatively, the common law read with s 33 of the Constitution.
[9] In response, the trustees raised, among others, two preliminary points. First,
that there was a non-joinder of the director of Bae Estates, its estate agent and the
owner of the property. Secondly, that because Bae Estates had asserted that the
decision of the trustees did not bind it, Bae Estates did not have standing before court
to bring the application. In respect of the merits of the application, the trustees

contended that in taking the decision, they were not exercising a public power nor
performed a public function. Thus, it was submitted, the decision did not constitute
administrative action, as also, it did not adversely affect any of Bae Estates’ rights nor
did it have a direct, external legal effect. In addition, the trustees contended that the
decision was reasonable and lawful in the circumstances of the case. The trustees
then set out at length, the complaints which culminated in them taking the impugned
decision.
[10] The trustees pointed out that the decision was taken in terms of rule 37.3 of the
scheme’s Conduct Rules, which, as already stated, concerns short-term holiday
letting. Thus, emphasised the trustees, the decision related only to ‘short-term holiday
letting’ and not any long-term letting or sales. In other words, Bae Estates was only
prohibited from operating in the scheme insofar as short-term letting was concerned,
and that the decision did not amount to a blanket prohibition.
[11] The high court concluded that the trustees’ decision satisfied two requirements
of the definition of ‘administrative action’ in PAJA, namely that of ‘public character’ and
‘a direct external legal effect’. It, accordingly, concluded that the trustees’ decision
constituted administrative action envisaged in PAJA and thus reviewable. The
high court also reviewed the trustees’ decision at common law ‘against the standards
of lawfulness, reasonableness and procedural fairness’. It reasoned that it was entitled
to do so on the basis of its inherent power to develop the common law. The high court,
accordingly, reviewed and set aside the trustees’ decision, and ordered the trustees
to pay Bae Estates’ costs. In this Court, the trustees challenge the correctness of the
high court's decision.
[12] In order for PAJA to apply, the trustees’ decision must amount to ‘an
administrative action’. Administrative action is defined in s 1 of PAJA as:
‘any decision taken, or any failure to take a decision, by—
(a) an organ of state, when-
(i)
exercising a power in terms of the Constitution or a provincial constitution; or
(ii)
exercising a public power or performing a public function in terms of any legislation;
or

(b)  a natural or juristic person, other than an organ of state, when exercising a public power
or performing a public function in terms of an empowering provision,
which adversely affects the rights of any person and which has a direct, external effect. . . .’
Sub-sections (aa) – (ii) contain a list of powers, functions and decisions which are
excluded from PAJA’s purview.
[13] In Minister of Defence and Military Veterans v Motau and Others1 the
Constitutional Court identified seven requirements of the definition of an administrative
action: ‘there must be: (a) a decision of an administrative nature; (b) by an organ of
state or a natural or juristic person; (c) exercising a public power or performing a public
function; (d) in terms of any legislation or an empowering provision; (e) that adversely
affects rights; (f) that has a direct, external legal effect; and (g) that does not fall under
any of the listed exclusions’.
[14] When regard is had to the structure of the definition of an administrative action,
the requirement that the decision be of an administrative nature, is a gate-way to
determining whether a particular decision constitutes administrative action. As Wallis J
explained in Sokhela and Others v MEC for Agriculture and Environmental Affairs,2
this requirement demands that a detailed analysis be undertaken of the nature of the
public power or public function in question, ‘to determine its true character’. Thus, the
determination of what constitutes administrative action does not occur by default, and
‘[t]he court is required to make a positive decision in each case whether a particular
exercise of public power or performance of a public function is of an administrative
character. . . .’.3
[15] The high court did not consider whether the requirement that conduct be of an
administrative nature, was met, and as such, did not engage in the analysis exercise
suggested in Sokhela. To my mind, this is a structural deficiency in the judgment,
amounting to a misdirection, for, if conduct is not of an administrative nature, a fortiori,

1 Minister of Defence and Military Veterans v Motau and Others 2014 (5) 69 (CC) para 33.
2 Sokhela and Others v MEC for Agriculture and Environmental Affairs (Kwazulu-Natal) and Others
2010 (5) SA 574 (KZP) para 61. See also Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374; 1998 (12) BCLR 1458
para 26.
3 Sokhela para 61.

it cannot constitute an administrative action envisaged in PAJA. With regard to
whether the trustees exercised a public power or performed a public function, the high
court noted that the body corporate derives its power to formulate conduct rules and
to apply them, from a statutory source, namely, the Schemes Management Act. The
exercise of those powers, it said, can affect a substantial number of people in important
matters concerning the conditions under which they occupy the property concerned.
To that extent, ‘a body corporate can be seen as exercising a public power or
performing a public function’. Having regard to these considerations, the high court
concluded that the trustees’ decision constitutes administrative action as defined in
PAJA and was, therefore, reviewable at Bae Estate’s instance.
[16] I cannot agree with the reasoning of the high court. The fact that bodies
corporate derive their powers from statute, does not, without more, translate their
decisions into the exercise of any public power or performance of a public function. As
explained in Chirwa v Transnet Limited,4 such an approach would render the
requirement that the decision be taken ‘in terms of any legislation’ meaningless, as all
decisions taken by a body created by statute would meet the requirement. For
example, almost all of the excluded powers and functions in sub-sections (aa) – (ii) in
the definition of administrative law in PAJA are exercised in terms of statute, but
decisions taken in terms thereof are not administrative decisions. And, to the extent
the learned Judge seems to suggest that bodies corporates exercise public power by
virtue of their power to regulate the living arrangements of property owners in their
schemes and to control the common property, this is at odds with this Court’s decision
in Mount Edgecombe Country Club Estate Management Association v Singh.5
[17] The sum effect of these is that the high court failed to properly engage in an
analysis of the relevant requirements of the definition of administrative action. I turn to
that aspect. It is prudent right from the onset, to delineate which of those requirements
are in dispute. As I see it, three of those are: (a) whether the trustees’ decision is of
an administrative nature; (b) whether the trustees exercised a public power or

4 Chirwa v Transnet Limited and Others [2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3) BCLR 251
(CC) para 183.PAJA
5 Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh and Others
[2019] ZASCA 30; 2019 (4) SA 471 (SCA). The essence of the decision is that, as between home
owners and a homeowners’ association, conduct rules have a contractual basis, and therefore PAJA
does not find application where home owners’ association enforced rules against property owners.

performed a public function; (c) whether the trustees acted in terms of any legislation
or an empowering provision.6
Whether the trustees’ decision is of an administrative nature
[18] In Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others7 it was pointed out that conduct of an administrative nature is generally
understood as the ‘. . . the conduct of the bureaucracy (whoever the bureaucratic
functionary might be) in carrying out the daily functions of the state which necessarily
involves the application of policy, usually after its translation into law…’ In the present
case, there is nothing bureaucratic about the trustees’ decision, nor does it involve
‘application of policy’. Instead, the decision seems more commercial or managerial in
nature, rather than administrative. The trustees’ decision was made in the course of
running and managing the scheme. The nature of the power is thus managerial or
business-related. Their decision is no different to a decision of a meeting of
shareholders of a company.8
[19] I therefore conclude that the trustees’ decision was not of an administrative
nature. Having failed at the first hurdle, this should be the end of the enquiry. However,
given the interrelatedness of the requirements, and the far-reaching implications the
judgment of the high court holds for bodies corporate generally, I will consider the
other two requirements.
Whether the trustees exercised a public power or performed a public function
[20] The question whether private entities are capable of exercising public powers
or performing public functions is vexed. In Chirwa it was held that determining whether
a power or function is ’public’ has to be determined with regard to all the relevant
factors including: (a) the relationship of coercion or power that the actor has in its
capacity as a public institution; (b) the impact of the decision on the public; (c) the
source of the power; and (d) whether there is a need for the decision to be exercised

6 The expression ‘an empowering provision’ is defined in s 1 of PAJA as ‘a law, a rule of common law,
customary law, or an agreement, instrument or other document in terms of which an administrative
action was purportedly taken’.
7 Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others [2005] 3 All SA 33
(SCA); 2005 (6) SA 313 (SCA) para 24.
8 Compare for example, Pennington v Friedgood 2002 (1) SA 251 (C) where it was held that decisions
taken at the annual meeting of a medical aid scheme were not exercises of public power.

in the public interest. None of these factors will necessarily be determinative; instead,
a court must exercise its discretion considering their relative weight in the context’.
[21] In Calibre Clinical Consultants9 this Court at para 31 cited with approval the
following remarks by Lord Bingham in YL v Birmingham City Council:10
‘[T]he role and responsibility of the state in relation to the subject matter in question . . . the
nature and extent of any statutory power or duty in relation to the function in question . . . the
extent to which the state, directly or indirectly, regulates, supervises and inspects the
performance of the function in question, and imposes criminal penalties on those who fall
below publicly promulgated standards in performing it . . . whether the function in question is
one for which, whether directly or indirectly, and whether as a matter of course or as a last
resort, the state is by one means or another willing to pay. . . .’
[22] This Court went on to observe (at para 38) that ‘courts have consistently looked
at the presence or absence of features of the conduct concerned that is
“governmental” in nature’. Relevant considerations in this regard include:
‘[a] the extent to which the functions concerned are “woven into a system of governmental
control”, or [b] “integrated into a system of statutory regulation”, or [c] [that] the   government
“regulates, supervises and inspects the performance of the function”, or [d] it is “a task for
which the public, in the shape of the state, have assumed responsibility”, or [e] it is “linked to
the functions and powers of government”, or it [f] constitutes “a privatisation of the business of
government itself”, or [g] it is publicly funded, or [h] there is “potentially a governmental interest
in the decision-making power in question”, or [i] the body concerned is “taking the place of
central government or local authorities”. . . .’

[23] To determine in this case whether the above features are present, it suffices to
refer to three sections of the Schemes Management Act, the regulations promulgated
in terms thereof and the conduct rules of the scheme. Government’s involvement,
through the Minister of Human Settlement, is confined to the following matters: the
management of the reserve fund levels (s 3); the powers, functions and composition

9 Calibre Clinical Consultants (Pty) Ltd and Another v National Bargaining Council for the Road Freight
Industry and Another [2010] ZASCA 94; 2010 (5) SA 457 (SCA); [2010] 4 All SA 561 (SCA) para 31.
10 YL (by her litigation friend the Official Solicitor) v Birmingham City Council and Others [2007] 3 All ER
957 (HL). Although the remarks are in the minority judgment, on the point made by Lord Bingham the
court was unanimous.

of the Advisory Council (s 18) and the power to make regulations (s 18). None of these
concerns or governs the relationship between bodies corporate and estate agents.
[24] Therefore, when deciding to prohibit an estate agent from operating in the
scheme, the trustees did not perform a function that is ‘woven into a system of
governmental control’ or ‘integrated into a system of statutory regulation’. Government
does not ‘regulate, supervise and inspect the relationship between bodies corporates
and estate agents like Bae Estates. It is not an aspect for which ‘the public has
assumed responsibility’; it is not ‘linked to the functions and powers of government’; it
is not ‘a privatisation of the business of government itself’; there is no ‘potentially a
governmental interest in the decision-making power in question’; the body corporate
is not ‘taking the place of central government or local authorities’, and, no public money
is involved.
[25] What is more, the trustees’ decision does not affect the public at large. The
general public does not have access to the estate. In Mount Edgecombe at para 15
this Court held that ‘[i]n this context the word “public” does not include persons who
are there with the permission of the owners of property within the estate’. Thus the
public must be the general public, not a special class of members of the public who
have occasion for business or social purposes to go to the estate. In this case, there
is no doubt that estates agents such as those representing Bae Estates, are not
general members of the public, but belong to the special class of members of the
public who are there for business purposes.
[26] I therefore conclude that the trustees did not exercise a public power or perform
a public function.
Whether the trustees acted in terms of any legislation or an empowering
provision
[27] It is important to locate the trustees’ decision to prohibit Bae Estates from
operating in the scheme, within ‘an empowering provision’. In other words, under what
empowering provision did the trustees act for that decision? The high court said that
they acted in terms of the Schemes Management Act. In coming to this conclusion,
the high court failed to appreciate that the statutory powers conferred on the trustees

by the Schemes Management Act, where relevant, regulate the relationship between
the body corporate and the home-owners. This case is not about that relationship. It
is about a body corporate’s relationship with a third party, an estate agent. There is no
provision in the Act which empowers the trustees to prohibit an estate agent from
operating in the scheme.
[28] The relevant sections here are ss 3 and 4. Section 3 provides for the functions
of bodies corporate. In terms thereof, a body corporate must perform the functions
entrusted to it by or under the Act or the rules, and such functions include the
establishment of an administrative fund; the repair, maintenance, management and
administration of the common property; the establishment of a reserve fund. Section 4
provides for powers of the bodies corporate. Neither of them concerns the trustees’
power to regulate the estate agents’ right to operate in sectional titles schemes.11
[29] As to the regulations promulgated in terms of the Act,12 they deal with the
following issues: minimum amounts for reserve funds; other risks to be insured
against; powers of a provisional curator-ad-litem and curator-ad-litem; notifications;
rules and representative nature of the Advisory Council established in terms of s 18 of

11 Section 4 reads as follows:
‘Powers of bodies corporate
4. The body corporate may exercise the powers conferred upon it by or under this Act or the rules, and
such powers include the power—
(a) to appoint such agents and employees as the body corporate may consider fit;
(b) when essential for the proper fulfilment of its duties and upon special resolution, to purchase or
otherwise acquire, take transfer of, mortgage, sell, give transfer of or hire or let units;
(c) to purchase, hire or otherwise acquire movable property for the use of owners for their enjoyment or
protection or in connection with the enjoyment or protection of the common property;
(d) where practicable, to establish and maintain on the common property suitable lawns, gardens and
recreation facilities;
(e) upon special resolution, to borrow moneys required by it in the performance of its functions or the
exercise of its powers;
(f) to secure the repayment of moneys borrowed by it and the payment of interest thereon, by notarial
bond over unpaid contributions whether levied or not, or by mortgaging any property vested in it;
(g) to invest any moneys of the fund referred to in section 3(1)(a);
(h) to enter into an agreement with any owner or occupier of a section for the provision of amenities or
services by the body corporate to such section or to the owner or occupier thereof, including, upon
special resolution, the right to let a portion of the common property to any such owner or occupier by
means of a lease other than a lease contemplated in section 5(1)(a);
(i) to do all things reasonably necessary for the enforcement of the rules and for the management and
administration of the common property.
12 The regulations were promulgated by the Minister on 7 October 2016, the Minister made regulations
in terms of the Sectional Title Schemes Management Act 8 of 2011.

the Schemes Management Act. Similarly, none of the regulations concern the
relationship between the bodies corporate and estate agents.
[30] The scheme’s conduct rules also qualify as ‘an empowering provision’, as the
latter expression is defined in s 1 of PAJA as ‘a law, a rule of common-law, customary
law, or an agreement, instrument or other document in terms of which an
administrative action was purportedly taken’. But even here, the scheme’s conduct
rules do not have any provision empowering the trustees to prohibit an estate agent
from operating in the scheme.
[31] The upshot of the above is that there is no ‘empowering provision’ in terms of
which the trustees were entitled to take a decision to prohibit Bae Estates from
operating in the scheme. The trustees were therefore not enforcing or applying any
statutory or regulatory provision.
[32] To sum up. The trustees’ decision is not an administrative decision envisaged
in PAJA. It was thus not reviewable in terms thereof. The high court erred in concluding
to the contrary. This bring me to a consideration as to whether the decision is
reviewable at common law.
Reviewability under the common law
[33] Before us, the trustees had an about-face. They abandoned the defence
adopted in the high court. To recap, that defence was that the prohibition against Bae
Estates was only applicable to short-term holiday letting, and therefore, Bae Estates
was entitled to operate in the scheme for other purposes such as long-term letting or
sales. Counsel for the trustees was constrained to concede that the trustees’ decision
amounted to a total prohibition on Bae Estates to operate in the scheme, and that: (a)
the decision was taken without affording Bae Estates any hearing; (b) Bae Estates
was not responsible for the sub-letting which culminated in the complaints in respect
of the property, and that Bae Estates became involved only after the problems arose.
[34] Despite the above, counsel submitted that the common law does not allow for
the judicial review of the trustees’ decision because there is no contractual nexus
between the body corporate and Bae Estates, as a result of which, Bae Estates did

not have an enforceable right against the trustees to operate in the scheme. The result,
counsel submitted, was that the trustees did not owe Bae Estates a duty to act fairly
towards it before they terminated Bae Estates’ ability to operate in the scheme. It was
therefore submitted that Bae Estates lacked locus standi to set aside the trustees’
decision.
[35] Significantly, this point was not even pleaded. In paras 8-10 above, I have set
out fairly comprehensively, the points in the trustees’ answering affidavit upon which
they rested their defence to the application. This was not one of them. The point was
raised for the first time in the application for leave to appeal. Ordinarily, a point of lack
of locus standi should have been pertinently raised in the answering affidavit to enable
Bae Estates to meet it, and for the high court to pronounce on it.
[36] It is so that the mere fact that a point of law is raised for the first time on appeal
is not in itself a sufficient reason for refusing to consider it. If the point is covered by
the pleadings, and if its consideration on appeal involves no unfairness to the other
party against whom it is directed, a court may in the exercise of its discretion consider
the point.13 It would be unfair to the other party if the point of law and all its ramifications
were not canvassed and investigated at trial.14 In this case, the point was neither
covered in the affidavits, nor was it canvassed and investigated in the high court. It is,
therefore, patently unfair to Bae Estates to have to be confronted with the point for the
first time on appeal. For this reason alone, the locus standi point must be dismissed.
But, in any event, as I show below, there is no merit to the point.
[37] At common law, a person who approached a court for relief was required to
have an interest in the sense of being personally adversely affected by the wrong
alleged.15 In Jacobs v Waks16 this Court set out the following requirements to
determine whether an applicant has the necessary locus standi to challenge an

13 Alexkor Ltd and Another v The Richtersveld Community and Others 2004 (5) SA 460 (CC); 2003 (12)
BCLR 1301 (CC) para 44; Cole v Government of the Union of SA 1910 AD 263 at 273; Paddock Motors
(Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 24-5; and Bank of Lisbon and South Africa Ltd v The Master
and Others 1987 (1) SA 276 (A) at 290.
14 Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA); [2000] 3 All SA 181 (A) para 30; Barkhuizen
v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) para 39.
15 See for example, Cabinet of the Transitional Government for the Territory of South West
Africa v Eins 1988 (3) SA 369 (A) at 389I.
16 Jacobs and Another v Waks and Others 1992 (1) SA 521 (A) at 534A-E.

impugned decision:(a) the applicant for relief must have an adequate interest in the
subject-matter of the litigation, in other words, a direct interest in the relief sought;
(b) such interest must (i) not be too far removed; (ii) be actual, not abstract or
academic; (iii) be current, and not a hypothetical one. The Court further pointed out
that issues of locus standi should be dealt with in a flexible and pragmatic manner,
rather than a formalistic or technical one.
[38] It brooks no debate that Bae Estates has a substantial and direct interest in the
decision of the trustees, the subject-matter of this litigation, and that such interest is
real and current. Bae Estates, accordingly, fulfils all of the above requirements. It was
sufficiently and directly affected in its rights and legal interests by the trustees’
decision. Also, since the advent of the constitutional order, the issue of locus standi is
regulated by s 38 of the Constitution,17 in terms of which the class of persons who
may approach a court include ‘anyone acting in their own interest.’ Thus, at both
common law and in terms of the Constitution, Bae Estates has thus established the
required locus standi to challenge the validity of the decision. A contrary conclusion
would be tantamount to the adoption of a ‘formalistic or technical’ approach cautioned
against in Jacobs and, contrary to s 38 of the Constitution. It follows that the trustees’
contention that Bae Estates lacks locus standi, does not withstand scrutiny. Bae
Estates has established an enforceable right against the trustees, and thus, the
necessary standing to review the trustees’ decision at common law.
[39] Bae Estates’ alleged lack of standing was the only defence proffered by the
trustees on the reviewability of their decision under common law. Having found no
merit in that point, it remains to decide whether the trustees’ decision is in fact,
reviewable at common law. Decisions of private bodies are not immune from judicial
review. The principles in this regard have mostly evolved from the so-called ‘Jockey

17 Section 38 of the Constitution states:
‘Anyone listed in this section has the right to approach a competent court, alleging that a right in the
Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including
a declaration of rights. The persons who may approach a court are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.’

Club’ cases, where voluntary associations are required to afford their members a fair
and impartial hearing before their domestic tribunals.18 Counsel for the trustees sought
to distinguish these cases from the present case on two bases: first, that the trustees
did not act in their capacity as a domestic tribunal. Secondly, that as members of such
associations, they were persons affected by the finding of a domestic tribunal which
was invalid for want of observance of the rules of natural justice. As Bae Estates was
not a member of the body corporate, so it was submitted, the trustees were not obliged
to observe the rules of natural justice.
[40] In my view, there is no merit to either of the two propositions. As to the first, it
is mechanical, and amounts to placing form over substance. It is reminiscent of, and
akin to, the former classification of administrative powers and functions as ‘purely
administrative’ or ‘quasi- judicial’, that was discredited and discarded in our
administrative law even pre-constitutional order. The identity or form of the decision-
maker is immaterial. What is important is the effect of its decision and its implications
on the subject to whom it is directed. It is therefore irrelevant whether the body
entrusted with the decision is styled ‘tribunal’, ‘committee’, ‘task team’, ‘board of
trustees’, etc. As to the second, it is common cause that Bae Estates was directly and
materially affected by the trustees’ decision. There is no rational and justifiable basis,
why the rules of natural justice should not apply to the trustees’ decision. This is
particularly so in circumstances where Bae Estates had, to the knowledge of the
trustees, been freely operating within the scheme for at least a year.
[41] I turn now to consider the grounds on which a decision of a private body can be
subjected to judicial review at common law. This would be the case where a decision-
maker failed to comply with the elementary principles of justice, such as for example,
where the tribunal misconceives the nature and ambit of its powers, or where it acts
capriciously or mala fide, or where its findings in the circumstances are so unfair that
they cannot be explained unless it is presumed that the tribunal acted capriciously or
with mala fides.19

18 See for example Turner v Jockey Club of South Africa 1974 (3) SA 633 (A).
19 South African Railways v Swanepoel 1933 AD 370 at 378; Theron and Others v Ring van Wellington
van die NG Sendingkerk and Others 1976 (2) SA 1 (A).

[42] In Johannesburg Consolidated Investment Co v Johannesburg Town Council,20
Innes CJ observed that the grounds upon which a review may be brought under
common law are ‘somewhat wider’ than those that would justify a review of judicial
proceedings. It is well-established that common law review, inter alia, applies also to
cases where the decision under review is taken without a hearing having taken place.
And, where the duty or power is created not by statute but consensually as in relation
to domestic tribunals.21

[43] It is so that ordinarily, Bae Estates does not have a right to operate in the
scheme. However, once it was permitted to do so by the trustees, about which there
is no dispute, Bae Estates held a well-founded belief and expectation that its continued
ability to operate in the scheme and service its clients there, would not be arbitrarily
terminated by the trustees. Therefore, the duty on the trustees to act fairly in
accordance with the tenets of natural justice came about consensually when Bae
Estates was allowed to practice its occupation or profession in the scheme for over a
year without hindrance. It is common cause that the decision under review was taken
without affording Bae Estates a hearing in circumstances where Bae Estates was not
responsible for short-term leases in the scheme.
[44] As already stated, in this Court the trustees accepted that Bae Estates was not
responsible for the short-term letting in the scheme. This notwithstanding, the trustees
contended that they acted perfectly within their rights in prohibiting Bae Estates from
operating in the scheme despite the fact that Bae Estates was not afforded an
opportunity to be heard. The trustees sought to justify their conduct purely on the
grounds that Bae Estates was neither an owner nor a member in the scheme, in which
event they would have been obliged to afford Bae Estates a hearing.

[45] The contentions advanced by the trustees entirely overlook the fact that before
their decision to bar Bae Estates from operating within the scheme the latter had in
pursuit of its occupation or profession enjoyed such right for over a year without
hindrance. For the trustees to now contend that they were entitled, without rhyme or

20 Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111 at 115.
21 Hira and Another v Booysen NO and Another 1992 (4) SA 69 (A) at 93A-94A.

reason as it turned out, to deny Bae Estates the right to continue servicing its clients
in the scheme without affording Bae Estates a hearing is manifestly untenable.
[46] The trustees’ decision is admittedly: (a) procedurally unfair and unreasonable;
(b) without any justifiable basis and thus irrational; (c) in breach of the principles of
natural justice; and (d) most importantly, unjust. The trustees’ decision is so unfair that
‘it cannot be explained unless it is presumed that they acted capriciously or with mala
fides’. This is buttressed by the conduct of one of the trustees, Mr Graham Cowburn,
who is an estate agent with Dogon Group Properties. His company is thus a direct
competitor of Bae Estates.
[47] On 22 May 2019, a day after the decision was taken to prohibit Bae Estates
from operating in the scheme, Mr Cowburn addressed an email to the property owner,
in which he suggested to the owner to give the mandate to find a tenant, to his
company. This is a clear conflict of interest. Mr Cowburn, having been part of the
decision to prohibit Bae Estates from operating in the scheme, immediately sought to
benefit his company from the latter’s ‘banning’. Earlier, on 17 May 2019, he had
enthusiastically agitated for Bae Estates’ prohibition from the scheme with a curt ‘Ban
them!’.
[48] Should the trustees’ stance prevail in these circumstances, it would mean that
the court’s hands are tied in the face of an injustice. As remarked in Barkhuizen v
Napier,22 the hands of justice can never be tied under our constitutional order. That
would give the trustees a license to act with impunity by arbitrarily and whimsically
prohibiting estate agents from operating in the scheme. Courts must endeavour to do
simple justice between parties. Maripe explains it well:
‘The ends of justice should transcend the boundaries that so often restrain the courts, and it
is the courts' responsibility, to rule against abuse of power and dispense justice in deserving
cases, and to lay down particular rules whose effect is to promote the exercise of power or
discretion in regular fashion. Doing so in relation to decisions of private bodies would not
involve a “quantum leap’’, but would rather prevent injustices in demonstrably deserving
cases.’23 (Footnote omitted.)

22 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) para 73 in a
contractual context.
23 B Maripe ‘Judicial Review and the Public/Private Body Dichotomy: An Appraisal of Developing

[49] The facts of this case call to mind the English case of Breen v Amalgamated
Engineering Union.24 The case concerned an application to review the decision of a
committee of a trade union, which admittedly was made in circumstances of utmost
bad faith. But the remedy for judicial review was denied because the union was a
private body and not the subject of judicial review. The majority acknowledged the
injustice, but considered their hands bound. Edmund Davis LJ, writing for the majority,
lamented the result in the introductory paragraph of his judgment at 194:
‘I entertain substantial doubts that the judgment I am about to deliver will serve the ends of
justice. That is, to say the least, a most regrettable situation for any judge, but I see no escape
from it. Its effect is to throw away empty-handed from this court an appellant who, on any view,
has been grossly abused. It is therefore a judgment which gives me no satisfaction to deliver.’
[50] Fortunately, the constraints which inhibited Edmund Davis LJ from doing justice
between the parties, have no place in our law. In our constitutional order, private
entities are not enclaves of power, immune from the obligation to act fairly, lawfully
and reasonably. In the present case, it is not necessary to develop the common law,
as the high court purported to do. The common law, which now yields to the
Constitution and must be viewed through the prism thereof, is adequate to meet the
ends of justice. It follows, in my view, that the trustees’ decision is reviewable at
common law.
[51] It remains to briefly dispose of a residual argument on behalf of the trustees. It
was submitted that there were other remedies available to Bae Estates, such as an
interdict, and a claim for damages based on unlawful interference with contractual
obligations, or remedies under the anti-competition law. That may well be so.
However, none of those remedies would adequately redress the effect of a permanent
prohibition against Bae Estates to service clients in the scheme. A damages claim, for
example, would be retrospective and limited to any clients that Bae Estates might have
had at the time of the prohibition. In addition, such a damages claim might prove
difficult to quantify. For future purposes, however, the permanent prohibition would still
stand, and Bae Estates would be unable to service its clients in the scheme.

Trends’ (2006) University Botswana Law Journal 23 at 42.
24 Breen v Amalgamated Engineering Union and others [1971] 2 QB 175.

[52] In all the circumstances I am of the view that the trustees’ decision ought to be
reviewed and set aside. To hold otherwise would give an imprimatur to an injustice,
totally inimical to our constitutional order and values. Accordingly, the appeal cannot
succeed.
[53] I therefore make the following order:
The appeal is dismissed with costs, including the costs of two counsel.

____________________
T M Makgoka
Judge of Appeal

APPEARANCES
For Appellant:
I Jamie SC (with him F W Landman)

Instructed by:

Marlon Shevelew & Associates, Cape Town,
Honey & Partners, Inc., Bloemfontein.

For First Respondent:
R F van Rooyen SC (with him K Felix)

Instructed by:
C & A Friedlander Attorneys, Cape Town,

Symington & De Kok, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY: JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM            The Registrar, Supreme Court of Appeal

DATE             5 November 2021

STATUS         Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

The Trustees for the time being of the Legacy Body Corporate v Bae Estates and Escapes
(Pty) Ltd and Another (Case no 304/2020) [2021] ZASCA 157 (5 November 2021).
Today, the Supreme Court of Appeal (the Court) dismissed an appeal against an order of the
Western Cape High Court, Cape Town (the high court) which had upheld an application by
the first respondent, Bae Estates and Escapes (Pty) Ltd and Another (Bae Estates) to review
and set aside a decision by the appellant, the Trustees for the time being of the Legacy Body
Corporate (the trustees).
Bae Estates is an estate agency that sells and rents properties on behalf of property owners
in Cape Town and the surrounding areas. In May 2018 it was engaged by a property owner in
the Legacy scheme (the scheme), to procure a tenant for his property on a long-term rental.
Bae Estates secured the tenant, and a lease agreement was concluded between the tenant
and the owner in July 2018. In terms of the lease agreement, among other provisions, the
tenant was permitted to sub-let the property on short-term holiday lease, which the tenant
himself later did, without reference to Bae Estates. Subsequently, there were complaints by
some property owners about the conduct of some of the sub-tenants, including excessive
noise and other unruly behaviour. The trustees were under the impression that those sub-
tenants were sourced by Bae Estates, and accused it of having failed to properly vet the sub-
tenants. Bae Estates pointed out to the trustees that it had nothing to do with the procurement
of the sub-tenants, and that its role was limited to the procurement of the main tenant. Despite
this explanation by Bae Estates, the trustees resolved to ban Bae Estates from operating in
the scheme on the basis that the unruly sub-tenants were procured by it. That decision was
taken without Bae Estates being afforded an opportunity to be heard.
At the instance of Bae Estates, the high court reviewed and set aside the trustees’ decision in
terms the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The high court also
concluded that in terms of the common law, as developed by it, the trustees’ decision was
reviewable.
On appeal, the trustees conceded that Bae Estates had nothing to do with the unruly sub-
tenants, but maintained that because they did not have a contractual relationship with Bae
Estates, they had no duty to afford Bae Estates a hearing before they resolved to ban it from
operating in the scheme.

As to the applicability of PAJA, the SCA concluded that the conduct of the trustees did not
amount to an administrative decision as envisaged in s 1 of PAJA, as the trustees’ decision
(a) was not of an administrative nature; (b) was not taken in the exercise of a public power or
in performance of a public function; and (c) was not pursuant to, or in terms of, any legislation
or an empowering provision. Accordingly, the Court disagreed with the high court on this
aspect.
The SCA then considered whether the trustees’ decision was reviewable at common. After
surveying the common law, the Court concluded that the common law was adequate as a
basis to review the trustees’ decision, and that it was not necessary to develop the common
law, as the high court purportedly did. It accordingly upheld the decision of the high court on
this aspect, albeit on a different reasoning to that of the high court.
As a result, the Court dismissed the trustees’ appeal with costs of two counsel.

END