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[2016] ZAWCHC 94
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Lyons v Body Corporate of Skyways (3643/2016) [2016] ZAWCHC 94; 2016 (6) SA 405 (WCC) (26 May 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 3643/2016
DATE:
26 MAY 2016
In
the matter between:
MALCOLM
HENRY
LYONS
.................................................................................................
Applicant
And
THE
BODY CORPORATE OF
SKYWAYS
........................................................................
Respondent
SECTIONAL
TITLE SCHEME, NO. SS
JUDGMENT
DELIVERED ON 26 MAY 2016
MAHOMED,
AJ
Introduction
[1]
This is an urgent application for a final interdict compelling the
respondent to take steps to ensure that all elevators situated
in and
serving the various buildings that comprise a sectional title scheme
under the control of the respondent, are repaired and
rendered
operational forthwith.
[2]
The applicant became the owner of unit 1 S (also known as Flat 4 S)
in one of ten (10) buildings under the Skyways Sectional
Title Scheme
No SS, situated at C Street, Z, Cape Town. The respondent is
the Body Corporate of the Skyways Scheme (“the
Skyways Body
Corporate”), which consists of various sectional title units in
terms of the
Sectional Titles Act 95 of 1986
, with its place of
business c/o L and V Property Services CC (the managing agent) at 8
Percival Road, Tijgerhof, Milnerton, Cape
Town.
[3]
The salient facts are common cause. The Sectional Title Scheme
includes the following six (6) buildings: Shannon;
Schipol;
Orly; Maribel; Arlanda and Gatwick, each having its own elevator.
The elevators have not been operational for approximately
two
years, with only one exception being the elevator located in the Orly
building that was repaired as recently as February 2016.
It is
necessary that the elevators be repaired or replaced because the
buildings are 4 floors in height making it difficult,
and in some
instances virtually impossible, to have access to the upper floors
without the elevator.
[4]
The applicant did not dispute the following steps taken by the
respondent, evidenced from the minutes of the trustee meetings,
to
ensure the elevators are operational:
4.1.
On 10 December 2013 the respondent’s trustees resolved to
approve a quotation from Thyssenkrupp Elevator SA (Pty) Ltd
(“Thyssenkrupp”), “
to repair the lifts and to
service them thereafter”
. When they failed to perform
in terms of the contract, the respondent terminated that contract
during or about November 2014.
4.2.
After the Thyssenkrupp contract was terminated for non-performance,
the respondent obtained six (6) quotes from Kone Elevators
South
Africa (Pty) Ltd (“Kone”), dated 28 April 2015, to repair
the elevators at Shannon (R17, 930.00), Schipol (R29,
215.25), Orley
(R7, 680.00), Maribel (R17, 730.00), Arlanda (R28, 235.25), and
Gatwick (R19, 445.28).
4.3.
The respondent’s trustees resolved at the meeting held on 19
June 2015 to instruct Kone, “
to attend to the repairs of the
other lifts in preferred order of Orly, Shannon, Schipol, Gatwick,
Arlanda and Mirabel”
.
4.4.
On 7 October 2015 the respondent’s trustees discussed the
status of the elevator repairs or replacement. At this
meeting,
Kone’s failure to respond to correspondence was also discussed
and it was resolved that Mr. Bobby Renda (the respondent’s
managing agent) would contact the managing director of Kone again and
offer him “
another opportunity to assist”
in
obtaining a response from Kone’s Regional Manager, “
failing
which the matter would be handed to the Body Corporate attorneys for
action”
.
4.5.
On 7 December 2015, the applicant’s attorneys sent a letter to
the regional manager of Kone
via
email, and complained of the
long delays (i.e. it was 5 months at that stage) demanding that Kone
perform in terms of the contract
and provide urgent feedback.
4.6.
When no response was received from Kone, on 11 January 2016 Mr. Renda
sent another email to Kone on behalf of the trustees
requesting a
response as to when and how the repairs of the elevators would be
effected.
4.7.
Kone’s lack of responsiveness was again discussed at the
meeting of the respondent’s trustees on 19 January 2016.
It was resolved that one of the trustees, Mr. T Alberts, would
contact Kone to demand a resolution to the issue, failing which
the
matter would be handed over to the respondent’s attorney and
the elevator Inspector, Mr. Piet Smith, be asked to recommend
a new
contractor.
4.8.
Between 14 and 17 February 2016, the respondent sent further emails
to Kone demanding a suitable response to earlier correspondence,
failing which the matter would be handed over to its attorneys.
4.9.
On 26 February 2016, Mr. Render finally contacted the respondent’s
attorneys requesting assistance with Kone's failure
to perform in
terms of the agreement.
[5]
Despite the resolutions by the respondent’s trustees, the
change in service providers from Thyssenkrupp to Kone, and the
various steps referred to above, the
status quo
remains.
Currently there are five (5) of the elevators that are still
inoperable, including the elevator in Shannon where
the applicant
owns a unit.
[6]
It is common cause that in circumstances the elderly and infirm
owners, residents and visitors to the buildings are forced to
use the
stairs. While the dispute remains unresolved, the situation has
become untenable and continues to impact adversely
upon the elderly
and infirm in terms of their freedom of movement as well as on their
health and wellbeing.
[7]
The respondent, unsurprisingly, conceded in its papers that in the
circumstances the applicant has established a clear right
and that a
so-called injury is actually being committed or reasonably
apprehended with the resultant prejudice to the applicant.
The
owners of the units in the respondent body corporate are entitled to
expect it to maintain the elevators and to keep
them in a state of
good and serviceable repair
.
In other words, the
applicant has established a clear right not to be prejudiced by the
inoperable lifts in the buildings. Moreover,
the applicant
suffered an injury or has a reasonable apprehension that his right
will continue to be violated by the respondent.
It is therefore
common cause that the first two requisites for the grant of a final
interdict have been met.
Issue
in Dispute
[8]
In
casu
, the issue in dispute is whether or not there is an
alternative legal remedy available to the applicant that is adequate
in the
circumstances for the grant of a final interdict. If the
applicant succeeds in establishing all the legal requirements, the
court is enjoined to consider whether there is a basis for refusing a
final interdict.
[9]
Counsel for the respondent, Mr. Quixley, argued that the applicant is
faced with two alternative remedies and therefore did
not meet all
the requisites of a final interdict: firstly, it may call for a
Special General Meeting in terms of Rule 53 of the
Management Rules,
issued in terms of the
Sectional Titles Act 95 of 1986
, in order to
address the issue of the elevator repairs with the Body Corporate and
the Trustees; and secondly, it could change
the composition of the
board of trustees. He suggested that it was premature for the
applicant to come to court seeking relief
while the respondent is
still taking steps to repair the elevators. He argued that the
resolutions that were adopted by the
trustees needed to be decided by
the members themselves in a general meeting. If the trustees
were dilatory, then the general
meeting has the power to boot them
out and to get new ones to replace them. He argued that matters
considered and resolved
at a general meeting may extend considerably
further than simply another broad resolution resolving to repair the
elevators. For
instance, the Special General Meeting could
resolve that the trustees take steps within a defined timeline.
[10]
Counsel for the applicant, Mr. Harrington, argued that there was
nothing to suggest that the proposed Special General Meeting
to be
held in terms of
Rule 53
of the Management Rules or a change in the
composition of the board of trustees, were viable or adequate
alternative remedies in
the circumstances. The Special General
Meeting would serve no purpose. Having regard to the respondents’
ongoing failure
to fulfill its statutory obligations over a period of
2 years, there was a reasonable likelihood that this would continue
in the
future. There was also nothing in the respondents
conduct to suggest that the resolution already taken in June 2015 to
have
the lifts replaced or repaired would be implemented with any
greater degree of urgency with a new board of trustees. Accordingly,
there was no alternative remedy available to the applicant, except to
approach this court and seek relief on an urgent basis.
[11]
Mr. Quixley argued that the relief that the applicant seeks is vague
and impossible to perform because the respondent cannot
ensure that
the elevators are operational at all times, except for routine
maintenance. In support of his contention, Mr.
Quixley invoked
the maxims
lex non cogit ad impossibilia
(the law does not
compel the doing of impossibilities) and
nemo tenetur ad
impossibilia
. (nobody is held to the impossible). He argued
that the respondent is dependent on third party service providers and
could
not ensure that the elevators were operational “
forthwith”
.
Any accidental elevator interruption, whatever the cause,
outside routine maintenance operations, would render the respondent
in breach of the order granted in terms of the relief sought.
Consequently, the relief is incompetent in the sense that the
respondent
is asked to “
take steps”
without
specifying what steps need to be taken or when they should be taken.
The effect of this is that the respondent will
have no way of
knowing whether it is complying with the order sought by the
applicant or under what circumstances it will be in
breach of the
order. The respondent had taken and continues to take steps to
ensure that the lifts are operational, and the
difficulties it
encountered in repairing the elevators promptly were not of its own
making. The respondent would need to
raise additional funds
and/or special levies from the members to fund the replacement of
defective elevators and this would be
addressed at the next general
meeting. The respondent therefore cannot be ordered by this
court to take steps to repair the
elevators forthwith as it was
impossible for the respondent to perform, except for routine
maintenance.
[12]
Mr. Harrington responded that the measure of the relief sought and
compliance with the respondent’s statutory obligations
is
simply to establish whether the lifts are operational or not. But
if this is too onerous then the court can prescribe
further and/or
alternative relief, with objectively verifiable steps that are
time-bound, within which the respondent shall ensure
that the lifts
are operational.
Applicable
Law
[13]
The applicant relied on
section 37(1)(j)
, (o) and (r) of the
Sectional Titles Act 95 of 1986
in order to establish a so-called
“
clear right”
that the owners enjoy and the
corresponding obligation of the respondent body corporate to maintain
the elevators and keep them
in a state of good and serviceable
repair.
“
37.
Functions of bodies corporate.
–
(1) A body
corporate
referred to in
section 36
shall perform the
functions entrusted to it by or under the Act or the rules, and such
functions shall include –
…
(j)
properly to maintain the common property (including elevators) and to
keep it in a good and serviceable repair;
(o)
to keep in a state of good and serviceable repair and properly
maintain the plant, machinery, fixtures and fittings used in
connection with the common property and sections;
…
(r)
in general, to control, manage and administer the common property for
the benefit of all owners.”
[14]
The applicant seeks a final interdict in this matter. The three
requisites
[1]
for the granting
of a final interdict are:
(a) A
clear right on the part of the applicant.
(b)
An injury actually committed or reasonably apprehended.
(c)
The absence of any other satisfactory remedy available to the
applicant.
[15]
All of the requisites must be present for the court to grant a final
interdict. In other words the court has no discretion
to grant
the final interdict, if the applicant fails to meet all the
requisites.
[16]
The discretion of the court is limited. If the applicant shows
on a balance of probability that he has no alternative
legal remedy,
the court then exercises its discretion whether or not to refuse an
interdict.
[17]
Bar any dispute of fact, which will be resolved by applying the
Plascon-Evans
[2]
test to the matter, the applicant carries the heavier onus to show
that his case is stronger than the respondent’s case.
Analysis
[18]
I examined the steps that the respondent took since the concerns
about the inoperable elevators were brought to its attention,
and
whether the delays in repairing or replacing the elevators were
reasonable.
[19]
The respondent trustees’ adoption of the resolution on 10
December 2013, “
to repair the lifts and to service them
thereafter”
is noteworthy, for it was the first time that
the respondent formally acknowledged and took steps to address the
problem of the
inoperable elevators in the six (6) buildings.
[20]
Notwithstanding the fact that there was already an existing
resolution authorizing the respondent to repair the lifts and service
them thereafter, the trustees deemed it necessary to adopt a second
resolution on 19 June 2015 for “
BR to instruct Kone to
attend to the repairs of the other lifts…”
albeit in
a particular order of the buildings agreed upon i.e. Orly, Shannon,
Schipol, Gatwick, Arlanda and Mirabel. The
first elevator in
Orly building was only repaired in February 2016, some two (2) years
and two (2) months after the first resolution,
and more than seven
(7) months after the second resolution was adopted.
[21]
It is common cause that from December 2013 to November 2014,
ThyssenKrupp failed to perform in terms of the contract. Another
five (5) months elapsed after the ThyssenKrupp contract was
terminated before the respondent obtained quotations from Kone. It
is also common cause that from July 2015 to February 2016, Kone also
failed to perform in terms of the contract. The above
delays
seem unreasonably long and naturally begs the question as to why the
respondent, through its managing agent, did not intervene
in the
appropriate manner and implement the trustees’ resolutions
within a reasonable period of time, with due regard to
the rights of
the applicant and the other vulnerable people making use of the
buildings.
[22]
Mr. Quixley argued that the respondent faced “
real
difficulties”
not of its own making in repairing the lifts
promptly. He also argued that additional funds and/or special
levies would need
to be raised from its members to fund the
replacement of defective lifts. However he failed to
substantiate what these difficulties
were and any financial
constraints that the respondent was facing. By all accounts the
respondent was aware of the practical
and financial implications of
the resolutions taken to repair the elevators. There were no
submissions made regarding practical
impediments or funding
constraints, and a perusal of the relevant minutes of the trustees
meetings do not reflect any financial
difficulties of the Skyways
Body Corporate in relation to the cost of the repairs to the
elevators. Having regard to the quotations
from Kone in April 2015,
the cost of the repairs seem nominal considering the length of time
and trouble that the respondent went
through without the resultant
redress for the applicant.
[23]
Mr. Quixley conceded in argument that there were indeed gaps in the
correspondence that demonstrates the fact that the respondents
did
not move as quickly as the applicant would have liked. While I accept
that the respondent was not sitting completely idle at
all times and
that it was dealing with problematic service providers, there were no
substantive reasons offered for the respondent’s
own dilatory
conduct at crucial times when a reasonable intervention was required.
In particular, no adequate reasons were
provided for its
failure to properly implement the trustee’s resolutions within
a reasonable period of time. The inescapable
conclusion is that there
was gross incompetence in the management and implementation of the
resolutions adopted by the respondent’s
trustees. In the
result, the steps taken by the respondent through its managing agent
were wholly inadequate, resulting in
unreasonable delays in repairing
or replacing the elevators in the buildings.
[24]
I now turn to assess whether there is an alternative legal remedy
available to the applicant that is adequate in the circumstances
for
the grant of a final interdict. Mr. Quixley suggested that the
two internal remedies regulated by the body corporate
itself are
available to the applicant: the first is to hold a Special
General Meeting of the members in order to obtain a
directional
mandate for the trustees to take specific steps with clear
timeframes; and the second, involves changing the composition
of the
board of trustees i.e. disposing of the trustees and replacing them
with new trustees who could do what is necessary in
the
circumstances.
[25]
The internal remedies suggested will not provide adequate redress in
the sense that, neither of these are legal remedies that
engender
prompt enforceable action, both are dependent upon a range of factors
before an outcome emerges possibly with no clear
timeframes, the
outcome may not necessarily result in any tangible relief for the
applicant and other vulnerable people using the
buildings, and
importantly they will not grant similar protection to the applicant.
[26]
It is also reasonably conceivable that further delays will ensue from
these internal remedies, compounding the pattern of delayed
interventions that have already been established and causing the
continued violation of the clear right and ongoing injury to the
applicant. This court is particularly mindful of the fact that
the applicant is an elderly gentleman with very good reason
to bring
this application on an urgent basis. The applicant’s
right must be fulfilled and the injury needs to end,
forthwith.
[27]
The class of people impacted upon by the
status quo
is much
broader than the elderly and infirm, in the sense that the upper
floors in the buildings are rendered inaccessible to people
using
wheelchairs and other mobility assistance units or devices. They
constitute the most vulnerable in our society and
the inoperable
elevators serve to create an unsustainable, undignified and
intolerable situation for them. To ignore the applicant’s
cries
for urgent relief would render the vulnerable invisible and
continually marginalized in these circumstances.
[28]
The Skyways Body Corporate’s purported internal remedial
processes, involving Special General Meetings and a change in
the
composition of trustees, do not constitute alternative remedies
available to the applicant that are remotely adequate in the
circumstances. They do not provide adequate redress or offer an
ordinary or reasonable remedy for the persistent marginalization
of
the rights of the applicant and vulnerable people. The
respondent’s internal regulatory mechanisms have thus far
failed the applicant and the law must therefore be the instrument
that protects the rights of the vulnerable and marginalized.
The
elderly, infirm and disabled all enjoy the right to equal protection
and benefit of the law as provided for in section 9(1)
of the
Constitution:
“
Everyone
is equal before the law and has the right to equal protection and
benefit of the law.”
[29]
I am therefore satisfied that the applicant has established on a
balance of probabilities that he has exhausted other remedies
at his
disposal and made out a case for a final interdict.
[30]
This court enjoys a limited discretion in terms of the relief sought.
While it is mindful of the practical implications
of an order
compelling the respondent to comply with its duties, the refusal of
the interdict would in my view lead to an unjust
result, impacting
adversely on the applicant and other vulnerable people using the
buildings.
ORDER
I
therefore make the following order:
1.
The applicant’s non-compliance with the Rules relating to time
limits and service is condoned.
2.
The application for a final interdict is granted and the respondent
is ordered to take the steps necessary to ensure that the
elevators
in and serving all the buildings under its control within the Skyways
Sectional Title Scheme No. SS110/1984, are repaired
and rendered
fully operational within three (3) months from the date of this
order.
3.
The respondent to pay the costs on a scale as between attorney and
own client.
MAHOMED,
AJ
[1]
Erasmus, Superior Court Practice, 2
nd
Edition, Vol. 2, D6-12 and D16.
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
(1984) ZASCA 51
;
1984 (3)
SA 623
(A) at 634E-F
.
In terms of the
Plascon-Evans
test, the court will be bound to deal with the matter on the basis
of the applicant’s version coupled with the admitted
facts in
the respondent’s papers.