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[2017] ZAWCHC 159
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Skyscape Investments 110 CC v Livinafrica (Pty) Ltd and Others (5449/17) [2017] ZAWCHC 159 (29 November 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE NUMBER: 5449/17
In
the matter between:
SKYSCAPE
INVESTMENTS 110
CC
Applicant
and
LIVINAFRICA
(PTY)
LTD
1
st
Respondent
THE
BODY CORPORATE OF THE VICTORY
2
nd
Respondent
SECTIONAL
TITLE SCHEME
THE
CITY OF CAPE
TOWN
3
rd
Respondent
DELIVERED:
29 November 2017
JUDGMENT
NDITA,
J
Introduction
[1]
Two applications served before this court. In the first application,
the Applicant seeks an order interdicting the Respondent
from
conducting building works and/or construction work within any part of
ERF 2472 Camps Bay without the necessary building and
or planning
approvals for such building works having been obtained from the
relevant authorities and without the consent of the
Second
Respondent. The Applicant further seeks an order directing the
Respondent to:
1.1 Demolish any and all
structures/facilities (including all internal walls, electrical and
plumbing works) erected by it within
Section 1 of the Victory Title
Sectional Scheme (“the Scheme”) without the said
necessary approval.
1.2 Demolish any and all
structures and/or facilities (including all wooden decking,
electrical and plumbing works) erected by it
on the common property
of the Scheme without the necessary approval; and
1.3 Restore the common
property to the state it was prior to the building works referred to
above’
1.4 Restore the façade
of the residential block to the position it was prior to the building
works referred to above.
In
the second application, the Applicant seeks an order declaring the
First Respondent to be in contempt of court of the order of
this
court issued by Rogers J, on 27 January 2017 under case number
973/2017. Pursuant to the declaration of being in contempt
of court,
the Applicant also seeks an order committing the Second Respondent to
prison for such period as the court may determine.
The
Parties
[2]
The Applicant, Skyscape Investments 110 CC (“Skyscape”),
is a close corporation duly registered and incorporated
as such in
accordance with the Laws of the Republic of South Africa with its
registered address at 462 Ontdekkers Road, Florida
Park, Gauteng. The
First Respondent, Livinafrica (Pty) (Ltd) (“Livinafrica”)
is a company duly registered and incorporated
as such in accordance
with the Laws of the Republic of South Africa with its registered
address at 89 Roedebloem Road, Woodstock,
Cape Town. The Second
Respondent, the Body Corporate of the Victory Sectional Title Scheme
(“the Body Corporate”) is
a statutory body corporate
established in terms of the Sectional Titles Act, 95 of 1986, (“the
Act”) under number SS847/2008.
The managing agent of the Body
Corporate is Sandak Lewin Trust, of 37 Riebeeck Street, Cape Town
(“Sandak Lewin”).
The Third Respondent is the City of
Cape Town, a Municipality as provided for in
Section 2
of the
Local
Government: Municipal Systems Act 32 of 2000
.
Factual
Background
[3]
The common cause facts are that the Applicant and the First
Respondent are the only two members of The Scheme, which comprises
a
luxury triple storey residential block (“Block”) located
on Erf 2472 in Camps Bay. Although the Property and the
Block are
sectionalized, the Scheme comprises of only two sections. Skyscape is
the registered owner of
Section 2
, located on the first and second
floors of the Block (“
Section 2
”). Livinafrica is the
registered owner of Section no 1, located on the ground floor of the
Block (“
Section 1
”). Mr Jos Balk (“Balk”)
is the sole director of Livinafrica and occupies Section no. 1.
[4]
It is further undisputed that during December 2016, Livinafrica
started building and construction work in Section no 1 of the
Scheme
as well as on parts of the common property of the scheme. Pursuant
thereto, Skyscape launched an urgent interdict in this
court seeking
inter alia
, an interim interdict restraining Livinafrica from
undertaking further building and/ or construction work on the
property without:
4.1 all the necessary
building and planning approvals having been obtained.
4.2 The requisite consent
having been obtained from the body corporate.
Skyscape
also seeks a demolition and/or restoration order. The matter served
before Rogers J, on 27 January 2017 and the following
order was
issued.
“
A
rule nisi is hereby issued calling upon the First Respondent to show
cause if any, at 10h00 on THURSDAY the 30
TH day of March
2017 why an order should not be granted along the following terms:
1.1
That the First
Respondent is restrained and interdicted from (directly or
indirectly)
1.1.1
Effecting; and /or
1.1.2
Carrying on with;
and/or
1.1.3
Carrying out; and/ or
1.1.4
Being engaged in; and/
or
1.1.5
authorising
any and all building
works and/or construction works at and/or on and/or within any part
of ERF 2472, CAMPS BAY (hereinafter “the
Property”
without all necessary building and/or planning approvals (and
authorisations) for such building works and /or construction
works
having obtained from the relevant authorities and without the
requisite approval/consent of the Second Respondent.
1.2
That the First
Respondent be ordered to:
1.2.1
demolish any and all
structures and/or facilities (including all internal walls,
electrical and plumbing works) erected by and for
the First
Respondent within
Section 1
of the Victory Sectional Title Scheme
(hereinafter “the Scheme”) without all necessary building
and/or planning approvals
(and authorisations) for such building
works and/or construction works having been obtained from the
relevant authorities and without
the requisite approval/consent of
the Second Respondent;
1.2.2
demolish any and all
structures and/or facilities (including all and wooden decking,
electrical and plumbing works) erected by and
for the First
Respondent on the common property (of the Scheme) (hereinafter “the
common property”) without all necessary
building and/or
planning approvals (and authorisations) for such building works
and/or construction works having been obtained
from the relevant
authorities and without the requisite approval/consent of the Second
Respondent.
1.2.3
Restore the common
property to the state it was in prior to the erection of the
structures and facilities referred to in 1.2.2 above.
1.2.4
Restore the external
façade of the residential block on the Property to the
position it was in prior to the commencement
of the building works
and/or construction works referred to above (irrespective of whether
or not the façade concerned forms
part of Section no 1 or the
common property);
1.3
That the Respondent is
ordered to pay the costs of this application, on attorney and client
scale.
[5]
According to the founding affidavit deposed to by Mr Marius Ilove
Matthews (‘Matthews”), the sole member of the
Applicant,
the First Respondent has since about 2016 been engaged in a range of
works/activities on the common property. Initially,
it unilaterally
installed a wooden cover on the Jacuzzi located on the common
property and located the First Respondent’s
outdoor furniture
and various other fittings without any consent. Matthews states that
this type of conduct on the part of the
First Respondent continued
unabated and on or about 14 December 2016, the First Respondent
commenced with:
1. Building and
construction works in/or
Section 1
of the Scheme; and
2. Building and
construction works on the common property of the Scheme.
According
to Matthews, prior to December 2012, they were seldom at the Property
and the Second Respondent (“Balk”) had
become accustomed
to having the Property and the common property to himself. During
2015, Balk obtained a court order providing
for the establishment of
an effective body corporate as well as interim state of affairs for
the financial management of the Scheme
pending the establishment of
an effective body corporate. Although the minutes of the meeting of
the interim Body Corporate meeting
are unsigned, the Sandak Lewin
Trust was unanimously to be appointed as the managing agents and were
eventually appointed as such.
[6]
Matthews explains that since mid-December 2016, the First Respondent
has been carrying out works without the approval/consent
of the Body
Corporate having been obtained. He described the work that the First
Respondent commenced on the common property and
explained that this
involved the construction of a new deck on various parts of the
common property. To this end, several photographs
depicting the
installation of the deck and door are attached to his founding
affidavit. In addition thereto, certain plumbing had
been installed
in the common property. As to the Section work, the First
Respondent installed on the elevation of
Section 1
, a new door. This
too, was done without the Third’ Respondent’s building
and/or planning approvals. Matthews further
avers that throughout
January 2017, he and his wife continued to hear various noises
(including banging, drilling and hammering)
emanating from
Section 1.
He states that they assumed from the nature of the noise that
additional plumbing work was being done on the common property below
section 1.
The frustration and concern with the ongoing Sectional
works according to Matthews, prompted his wife to write an email to
Mr Cogill
of the City of Cape Town on 09 January 2017, which reads
thus:
“
Good
afternoon Mr Cogill
Please can you urgently
assist us with this matter. Our neighbor who has the apartment
directly below us has started pulling out
a window to put in a door.
The building is solid concert and he is using Jackhammers and angle
grinders to cut through the wall.
All this is being done without
plans and an Engineers report.
We did not grant him
permission based on the fact that out [sic] entire floor above him
and our third floor pool is supported on
this wall. He has continued
regardlessly and I am afraid the longer we take to get this stopped
there may be consequences.
Please can you help
Kind regards
Kimberley Matthews
A
day later, and on 10 January 2017, Ms Matthews wrote another email to
Mr Cogill wherein she gave him the names of the Second Respondent
and
explained that the latter’s unit is registered under
Livinafrica. In that letter, Ms Matthews further lamented the fact
that Balk was removing the entire window on the ground floor ‘
to
make it a door’
. On the same day, Balk’s girlfriend,
Ms Nienke van Schaik in response to Ms Matthews’ request wrote
an email to the
following effect:
“
Dear
Kimberley
As requested by you, we
obtained a Structural Engineer’s opinion. Our architect, who
has extensive experience, did not feel
that it was necessary to get
one and it is also not a specific requirement from the City of Cape
Town for our alterations.
The plans that are with
the City of Cape Town showed that LC Consulting did the Structural
Engineer work. They are now part of WSP/Parsons
Brinkkerhof,
Structure.
I
contacted them as they have all the relevant structure drawings and
supplied them with architectural plans and photos, please
see opinion
below.”
[7]
On 11 January 2017, Mr Stephen John Wilkinson, a Building Inspector
employed by City of Cape Town responded to Ms Matthews email
in the
following manner:
“
Hi
Kimberley
I visited the site
yesterday and came to the conclusion that as the wall below the
window was already three quarters removed it
was pointless stopping
the builders from removing the rest of the concrete. The removal of
the concrete does not in any way impact
on the structural integrity
of the building however I will be issuing a notice on the owner to
get approval for the new door that
is to be installed. The reason I
never stopped the builder from removing the rest of the concrete is
that if I stop them now, the
opening will be covered in plastic for a
few months until they get approval and then the noise will start
again. It is better for
you that they complete in one go. I will
follow this matter up.”
Upon
receipt of the above email, Ms Matthews promptly responded to it
further bemoaning the fact that Balk continued with the works
in
complete disregard of the fact that he ought to have obtained
permission from the Body Corporate and the Third Respondent in
the
first place. Therein, she states thus:
“
Dear
Mr Wilkinson
Thank you for your email.
Please may I ask you if
it is possible that we do in fact stop this building as per the fact
that there are no approved plans and
that according to what we were
told and adhered to in the past we had to get approval from Mr Balk
before we did any changes to
the appearance or façade of the
building. We went according to the standard Body corporate rules and
he has not adhered
to any of the rules including the fact that the
decking and all the garden that he is digging is common property. We
have the deeds
to prove it. He is adding and doing thing that have
not been approved at all.
We would like assistance.
I am begging you to just halt this so that we can get some order in a
meeting and our Body Corporate to
assist us in him destroying our
garden and doing any alteration without following procedures. He has
also started cutting into
another wall to make another door out on
the opposite side where is installing a shower in the same room and a
hole down into the
basement.
Surely he should have
some plan and permission. We feel he can do anything interns [sic] of
this building and is above the law;
Please can we ask you if
he can just stop until we have the Body corporate in place and
permissions have been granted with an approved
plan that is signed by
both parties.
I would really appreciate
your assistance, this is not the first dispute we have had regarding
common property and alterations.
They
work weekends, public holidays and way over 5.00 pm.”
[8]
It is undisputed that the First Respondent was served by the Third
Respondent with an order directing him to cease all building
and
construction work on 13 January 2017. Matthews states that shortly
after the Respondent was served with the order,
he and
his wife, on the same day also witnessed work continuing on the
wooden decking on the common property. He further avers
that the
works carried on over the weekend (on both Saturday and Sunday).
According to Matthews, notwithstanding having been served
with a Stop
Works order, the First Respondent on 19 January 2017, continued with
the door installation.
[9]
Matthews states that after the First Respondent had been served with
a Stop Work order, he (Matthews), knowing that the continuing
works
were thus illegal, reported the matter to the South African Police
Services, Camps Bay on 15 January 2017. On the same day,
two members
of the SAPS attended to the property and confronted the Second
Respondent. According to Matthews, the police advised
him that they
were not empowered to do anything as the Respondent had denied that
he was served with a Stop Work order. Matthews
says that the
Applicant’s attorneys sent letters of demand to the Balk (on
behalf of the First Respondent) calling upon the
latter to cease and
desist with its unlawful and illegal conduct but the letters went
unanswered.
[10]
Matthews states that for all these reasons, the Applicant seeks that
the interdict and relief which was granted by this court
on an
interim basis be made final.
The
Opposing Affidavit
[11]
The First Respondent, in an affidavit deposed to by Balk, its
director, states that at all times, the Applicant was aware of
the
nature and extent of the works that was carried out and that Matthews
had consented thereto, “(whether express, tacit,
or implied)
both verbally and in writing (via text messages and or whatsApp
messages) and took no issue therewith at the commencement
thereof.”
According
to Balk, he disclosed frankly and fully to Matthews his intention to
effect the building works. To this end, he states
that:
“
58.
Be that as it may, at all material times, there was full and frank
disclosure by myself to the representative of the Applicant
in
relation to the building works which I intended to undertake. There
were various discussions, and no objection was raised. Given
the
dysfunctional body corporate, I presumed that this was sufficient. It
was only after the building had commenced and there were
builders on
site and a certain amount of noise, that issues were raised.
59. I pause to mention
that during the building works, we replaced two of the wall tiles on
the outside wall of
Section 2
, which raised no objections. Moreover,
and in order to facilitate the installation of the plumbing, Matthews
moved one of his vehicle
[sic]. Again no objection was raised in
respect of the building works.”
Balk
further avers that:
“
86.1
It is submitted that at a meeting on 21
st
December 2016 between myself and the deponent to the Applicant’s
affidavit, the requisite consent was given. Neither any
issues nor
any concerns were raised.”
According
to Balk, the permission allegedly given on 21 December was thereafter
implied. He also denies that the building works
would have had a
detrimental effect on the structural integrity of the entire
building.
[12]
Balk sketched a historical background predating the application which
had rendered the Body Corporate as a sectional title
scheme
dysfunctional. Balk states that the owners of
section 2
, namely
Skyscape, had never regarded themselves as having any use of the
common property, and neither did they assert any claim
in respect
thereof. He further states that the Court Order of 30 July 2015
provided that no further changes to the common
property areas were
allowed before a functional body corporate was in effect. According
to Balk, at the time the court order was
granted, both parties
believed that the garden area was indeed the exclusive use area of
the first Respondent. According to Balk,
the contents of the Notarial
Register at the Deeds Office include a diagram drawn up by the land
surveyor showing the garden area
as an exclusive use area for the
First Respondent. In any event, so alleges Balk, historically,
Skyscape has also undertaken
certain building works and repairs
without the consent of the body corporate and the City. Moreover,
balcony extensions to increase
the coverage were applied for by
Skyscape but the sectional title diagram had not been updated.
According to Balk, the relationship
between the owners of the
respective sections came to a head when the First Respondent brought
an application in this court which
sought to regularise the
administration and management of the sectional scheme. The fact that
a costs order was granted against
the Applicant in that application
exacerbated already strained relations.
[13]
More relevantly, Balk confirms that the First Respondent has
undertaken certain building works on the property. It is undisputed
that the First Respondent did not have the approval of the City when
it commenced with the building works. To this end, Balk states
that:
“
A
plan has subsequently been admitted to the City of Cape Town for
approval, and I understand that it is in the process of being
approved.
. . .
It is regretted that the
plan was not submitted prior to the building works being undertaken,
but given the nature and scope of
the building works it is
respectfully submitted that there was no undue prejudice to the
Applicant or the City in this regard.
In any
event we are in the process of regularizing the position.”
[14]
In expatiation of the no prejudice defence, Balk outlined the nature
of the building works that was being undertaken by the
First
Respondent as follows:
14.1 The removal of
a window and installation of a sliding door to access and egress the
property;
14.2 The insertion
of a single door at the rear end of the property;
14.3 The
construction of certain bedroom cupboards;
14.4 The placement
of a bath;
14.5 The
installation of a new shower;
14.6 The
installation of a new toilet
14.7 Certain
cosmetic repairs and additions to the outside deck and garden area
including the replacement of certain dead
grass with synthetic grass,
and certain additional decking being placed.
Balk
addresses at length the issue of the common property stating that he
has exclusive use of the common area of the property entitling
him to
effect changes without prior approval of Skyscape but surmised as
follows:
“
The
issue of the exclusive use of the area remains a bone of contention.
This very dispute has been referred to the ombud for determination
terms of the
Community Schemes Ombud Service Act, Act
9 of 2011. A
copy of the submission is annexed as “JB19”. In the
circumstances, obviously this honourable Court does
not have
jurisdiction to determine the dispute relating to the exclusive use
area.”
Notwithstanding
the above averment, Balk insists that the First Respondent is
lawfully entitled to the rights of exclusive use of
and enjoyment of
the garden area 1 and as such, the Applicant has no
locus
standi
to interfere
in that which is ‘presently undertaken outside. Balk further
denies that Skyscape has locus standi in relation
to the body
corporate. According to him, it is for the body corporate to do all
things reasonably necessary for the enforcement
of the rules and for
the management and administration of the common property (Section
4(i) of the Sectional Titles Scheme Management
Act, 8 of 2011.
[15]
It will be recalled that Skyscape alleges that the First Respondent
had, through Balk, been served with a Work Stop Order by
the Third
Respondent but that on the same day of service, the First Respondent
continued with works in violation of the order.
The stop work
order states that:
“
an
inspection conducted on 13.1.2017 [it] revealed that you are in the
process of erecting a building on Erf 2472 at 33 Camps Bay
Drive,
Camps Bay the works being (description and extent of works) removing
the concrete wall below the existing bedroom window
on the northwest
side of the dwelling and building a bathroom into the bedroom.”
The
notice further reads:
“
I
hereby order you in terms of Regulation A25(6) of the National
Building Regulations, promulgated under Section 17(1) of the said
Act, to stop forthwith the erection of the said building work.”
[16]
According to the First Respondent, at the time the Stop Works Order
was issued, the re-decking had been laid, the new shower
and bath had
been installed, the wall beneath the window had already been
demolished and plumbing had been installed. Balk states
that the
building inspector who had issued the stop works gave him permission
to finish the work on that day, and as such, any
work that continued
after the service of the Stop Works was not done in contempt of the
order. Balk further explains the need to
complete the installation of
the sliding door by referring to an incident that occurred shortly
after having been served with stop
works and that:
“
40.
A short time thereafter, it became apparent that the Applicant had
perhaps deliberately left his hose running in respect of
the filling
up of his pool (notwithstanding the current water restrictions). As
such the pool overflowed and there was a constant
stream of water
which was entering into our property through the cavity. A copy of
the video will be provided if required.
41. In
order to protect the property, the First Respondent completed the
installation of the sliding door. I submit that is not
in breach of
the stop works order, as the demolition of the window was already
completed.”
[17]
The First Respondent denies any statutory breach or that there is any
ongoing illegality being committed by it. The First Respondent’s
attitude is that the building works have practically ceased and are
completed, and it is in the process of obtaining the necessary
planning permission. For this reason, no order should be granted by
the court. This is so because no prejudice has been suffered
by
either the body corporate or Skyscape. Besides, so says Balk, the
works as completed has enhanced the property. Balk further
states
that works undertaken on 24 January 2017 was merely the finishing off
and cosmetic touch up to the new door which had already
been
installed. The balance of the works effected on the 25 January were
effected on the outside decking and there was no
angle grinding
taking place. The First Respondent denies that the Applicant has
established a clear right for the relief it seeks.
The
Replying Affidavit
[18]
In reply, Skyscape states that in the light of the averments made by
the First Respondent to the effect that he had exclusive
use of the
garden area and that this is confirmed by a conveyancer’s
certificate is devoid of the truth. Matthews says
that when he
and his legal team read the body of the First Respondent’s
conveyancer, Van Deventer, they noticed that
it made no reference to
the JB6 diagrams. For this reason, he instructed his own conveyancer,
Julia Ward, to investigate and file
a report whose certificate
records that:
18.1 The garden
area ‘GA1’ is not referred to in Van Deventer’s
certificate;
18.2 The JB6
diagrams are unregistered;
18.3 The first
floor garden of the Scheme (‘GA1’) is not an exclusive
area; and
18.4 Instead, that
area is in fact recorded as a common property.
As earlier pointed out,
nothing much turns on the registration of exclusive use areas for
Section 1, as the determination thereof,
according to the First
Respondent’s version, is to be made by the Community Scheme
Ombud Services.
[19]
The crucial aspect of the First Respondent’s averments is the
allegation that Skyscape, through Matthews had consented
to the
works. To this end, Matthews’s reply is to the effect that he
and Balk are the two trustees of the scheme, and at
no stage had he
ever given his consent (written or otherwise) for any of the common
works of the property. Matthews emphatically
denies any general
allegation that he gave the requisite consent to the First
Respondent. It will be recalled that Balk in
a nutshell,
alleges that Matthews at all times knew about the building works and
expressly gave his consent on 21 December and
thereafter tacitly
consented as he failed to object to what he perceived as illegal
work. In short, he acquiesced to the carrying
on of the works. Balk
also referred to whatsApp message exchanges between the parties.
According to Matthews, none of the whatsApp
messages can be construed
as giving consent to the building works. On 08 December 2016, Balk
wrote:
“
08-12-16
10:05:31: Jos Balk: Good Morning Marius
The grass patch on the
other side of the building I am going to replace for decking since
that will look better. It can be done
next week. Will have some
workers in.
Cheers Jos”
Matthews
replied thus:
“
11-12-16
21:18:08: Hello neighbor, confirmed that Carl must go ahead. Hope ur
trip to Namibia is both fun & prosperous. Rgds
M.”
On
28 December 2016, Matthews expressed his irritation with the building
works and stated thus:
“
28-12-
16 14:48:42 Marius Matthews: Hi Jos, im really not happy with all the
construction that’s taking place here! I did
not in any way
agree to u changing this block into a hotel!!!! I did not agree to
this new outside door being cut into the back
of your tv room (now
soon to be a bed/bathroom. Not to mention the ongoing noise for weeks
now? This is disrespectful & I find
dishonest? I will enforce the
common area rights as this was never my discussion with you! I have a
feeling u think u can con me
& things r going to get nasty again.
M”
Balk
responded to the message by apologising.
[20]
In a subsequent exchange, Balk reiterated that he had Matthews’
consent and states that:
“
I
changed a window into a door and you made a glass structure and
balconies. Both alterations need to be correctly approved and
administered. You gave me permission to do my change. I never gave
permission to your glass structure and there was a condition
for the
permission with the balconies. I have not filed a complaint with the
City of Cape Town since I prefer to spend my time
and money on
getting solar and the glass balestrades [sic] instead of paying legal
fees and fight while I think we can be very
good neighbors.”
[21]
According to Balk, it is discernible from the aforegoing whatsApp
exchanges that Matthews had expressly consented to the works
or had
acquiesced. Whereas Balk acknowledges that he had neither the consent
of the City nor that of the Body Corporate, he seems
to suggest that
the fact that Matthews had also carried out unauthorised works on the
property entitles him to an expectation that
Matthews has no right to
protest when he carries out his own unauthorised works.
The
Replying Affidavit
[22]
In the replying affidavit, Matthews readily conceded having effected
some changes on the property without the approval of the
City.
[23]
Ms Julia Ward, an attorney and conveyancer from Ward &
Pienaar attorneys deposed to an affidavit confirming that
she
conducted a Deeds Registry search of scheme described as The Victory
registered on Erf 2472 Camps Bay on 23 February 2017 and
states that:
“
1.
The aforementioned scheme was registered in the Cape Town Deeds
Registry on the 5
th
December 2008, which scheme is comprised of 2 (two) Sections, NAMELY,
Section 1 and Section 2.
2. No exclusive use areas
in terms of Sec 27 of the Sectional Title’s Act 95 of
1986 (“the Act”) are delineated
on the Sectional Plan
Diagram S.G D764/2008 for the said Scheme.
3. The Management and
Conduct Rules applicable to this scheme are prescribed by Annexures 8
and 9 of the Regulations to the Act.
4. . . .
5. In terms of this
additional Rule 72, certain areas on of the common property are
allocated as parking, and store-room areas (P1
– P8 inclusive
and Store STI and ST2) to the owners of the respective Sections in
terms of Sec 27A (c ) of the Act as set
out therein.
7. . . .
8. The said Garden Area
GA1 is however not referred to in the aforementioned Conveyancer’s
Certificate, nor has it been allocated
as an exclusive use area to
either of the 2 (two) Sections within the Scheme by virtue of the
provisions of Sec 27 (A) of the Act.
Ms
Ward concludes thus:
“
9.
As such, since the said Garden Area GA1 is not allocated for the
exclusive use of either section owners in terms of the Rules
and
provisions of Section 27 A of the Act, such Garden Area GA1 forms
part of the common property within the said Scheme.”
[24]
In the light of the fact that an order restraining the First
Respondent from directly or indirectly effecting or authorising
works
on any part of ERF 2472 was issued by Rogers J, on 27 January 2017,
the Applicant sought leave to file three supplementary
affidavits
dated 25 January, 6 March and 9 March 2017. The first supplementary
affidavit deals with further building/construction
works which were
carried out by the First Respondent after the main application had
been launched.
[25]
In the first supplementary affidavit, Matthews avers that since
service of notice of motion on the First Respondent on 23 January
2017, the First Respondent on 24 January 2017 continued installing a
new door and effecting further construction work. To this
end,
Matthews attached a photograph depicting work being carried out.
Furthermore, so alleges Matthews, on 25 January 2017, the
workers
continued working, drilling, angle grinding on the exterior block as
well as performing interior work in Section 1, including
in area
which is an exclusive use area for the Applicant.
[26]
Mrs Matthews also filed an affidavit setting out the works that were
carried out by the First Respondent post the granting
of the
interdict. Mrs Matthews states that on 1 March 2017, the First
Respondent installed new speakers and their electrical conduits
on
the deck of the common area. According to Mrs Matthews, the First
Respondent attempted to attach the aforesaid conduits and
or wiring
to its (the First Respondent’s) garden furniture located on the
decking on the common area. Mrs Matthews further
states that she
works late into the evening and only got finished at 22h00.
Responding to a video supplied to the Applicant by
the First
Respondent depicting a cavity which according to Balk had to be
closed to prevent water ingress, Mrs Matthews stated
that she took a
video on 14 January 2017, which showed that the window which was
removed thereby creating a ‘cavity’
was still in place on
that day. In other words, the work continued after the First
Respondent had been served with the Stop Works
order. Accordingly,
any suggestion that work carried out after the Stop Works order was
borne out of necessity as there was no
cavity before 13 January 2017.
The
Applicant’s locus standi
[27]
As earlier alluded to, the First Respondent challenges the
Applicant’s locus standi to bring this application. The First
Respondent also raises other defences but I deem it prudent to first
deal or consider the Applicant’s locus standi because
if I find
for the First Respondent, it is dispositive of both applications. It
was contended on behalf of the Respondents that
the Applicant had
failed to serve the notice of the application as required in section
41 of the Sectional Titles Act, 95 of 1986
(“Sectional Title’s
Act”) which provides that any owner wishing to bring
proceedings on behalf of the Body Corporate
had to first serve a
notice on it to institute proceedings. In short, the Applicant did
not have the requisite
locus
standi
to bring the
application because section 38(j) of the Act empowers the Body
Corporate to do all things reasonably and necessary
for the
enforcement of the rules and for the control, management and
administration of the common property.
Section
41
of the
Sectional Titles Act provides
thus:
"41
Proceedings on behalf of bodies corporate.-
(1) When an owner
is of the opinion that he and the body corporate have suffered
damages or loss or have been deprived of any benefit
in respect of a
matter mentioned in
section 36
(6), and the body corporate has not
instituted proceedings for the recovery of such damages, loss or
benefit, or where the body
corporate does not take steps against an
owner who does not comply with the rules, the owner may initiate
proceedings on behalf
of the body corporate in the manner prescribed
in this section.
(2) (a) Any such
owner shall serve a written notice on the body corporate calling on
the body corporate to institute such proceedings
within one month
from the date of service of the notice, and stating that if the body
corporate fails to do so, an application
to the Court under paragraph
(b) will be made.
(b) If the body
corporate fails to institute such proceedings within the said period
of one month, the owner may make application
to the Court for an
order appointing a
curator ad litem
for the body corporate for
the purposes of instituting and conducting proceedings on behalf of
the body corporate.
(3) The court
may on such application, if it is satisfied –
(a) that the
body corporate has not instituted such proceedings;
(b) that there
are
prima facie
grounds for such proceedings; and
(c) that an
investigation into such grounds and into the desirability of the
institution of such proceedings is justified,
appoint a
provisional
curator ad litem
and direct him to conduct such
investigation and to report to the Court on the return day of the
provisional order.
(4) The Court
may on the return day discharge the provisional order referred to in
subsection (3), or confirm the appointment of
the
curator ad litem
for the body corporate, and issue such directions as it may deem
necessary as to the institution of proceedings in the name of
the
body corporate and the conduct of such proceedings on behalf of the
body corporate by the
curator ad litem.”
[28]
It was further submitted on behalf of the Respondent that although
the
Sectional Titles Act 95 was
partially repealed by the Sectional
Titles Schemes Management Act, 8 of 2011 (“Sectional Titles
Schemes Management Act”),
section 4(i) of the latter Act
contains a provision similar to that of s 38 (j) of the former Act.
Section 4 (i) of the Management
Act empowers the body corporate to do
all things reasonably necessary for the enforcement of rules and for
the management and administration
of the common property. Section 9
of the Sectional Schemes Management Act reads thus:
“
Proceedings
on behalf of bodies corporate.
(1)
An owner may initiate
proceedings on behalf of the body corporate in the manner prescribed
in this section:
(a)
when such owner is of
the opinion that he or she and the body corporate have suffered
damages or loss or have been deprived of any
benefit in respect of a
matter mentioned in section 2 (7), and the body corporate has not
instituted proceedings for the recovery
of such damages, loss or
benefit; or
(b)
when the body corporate
does not take steps against an owner who does not comply with the
rules.
(2)
(a) Any such owner must
serve a written notice on the body corporate calling on the body
corporate to institute such proceedings
within one month from the
date of service of the notice, and stating that if the body corporate
fails to do so, an application
to the Court under paragraph (b) will
be made;
(b)
If the body corporate
fails to institute proceedings within the period referred to in
paragraph (a), the owner may make application
to the Court for an
order appointing a curator ad litem for the body corporate for the
purpose of instituting and conducting proceedings
on behalf of the
body corporate.
(3) The Court may on such application,
if it is satisfied
(a)
that the body corporate has not instituted such proceedings;
(b)
that there are
prima
facie
grounds
for such proceedings; and
(c)
that an investigation into such grounds and into the desirability of
the institution of such proceedings is justified, appoint
a
provisional
curator
ad litem
and
direct him or her to conduct an investigation into the matter and to
report to the Court on the return day of the provisional
order.
(4)
The Court may on the return day discharge the provisional order
referred to in subsection (3), or confirm the appointment of
the
curator ad litem
for the body corporate, and issue such
directions as it may consider necessary to the institution of
proceedings in the name of
the body corporate and the conduct of such
proceedings on behalf of the body corporate by the
curator ad
litem
.
(5)
A provisional
curator ad litem
appointed by the Court under
subsection (3) or a
curator ad litem
whose appointment is
confirmed by the Court under subsection (4), has such powers as may
be prescribed, in addition to the powers
expressly granted by the
Court in connection with the investigation, proceedings and
enforcement of a judgment.
(6)
If the disclosure of any information about the affairs of a body
corporate to a provisional
curator ad litem
or a
curator ad
litem
would in the opinion of the body corporate be harmful to
the interests of the body corporate, the Court may on an application
for
relief by that body corporate, and if it is satisfied that the
said information is not relevant to the investigation, grant such
relief.
(7) The Court may,
if it appears that there is reason to believe that an applicant in
respect of an application under subsection
(2) will be unable to pay
the costs of the respondent body corporate if successful in its
opposition, require sufficient security
to be given for those costs
and the costs of the provisional
curator
ad litem
before a provisional order is
made.
”
[29]
I have cited the provisions of s 9 of the Sectional Titles Management
Act as well as
s 41
of the
Sectional Titles Act fully
to demonstrate
that the content is precisely the same. Any judicial interpretation
of
s 41
of the
Sectional Titles Act must
therefore apply to s 9 of
the Management Act. As was stated by the court
in
Cassim v Voyager
Property Management (Pty) Ltd (574/10)
[2011] ZASCA 143
(23 September
2011) at paragraph
11:
“
The
jurisdictional facts provided for in s 41(1) are that an owner be of
the opinion that he, she or it and the body corporate ‘have
been deprived of any benefit in respect of a matter mentioned in s
36(6)’. Section 36(6) provides:
'The
body corporate shall have perpetual succession and shall be capable
of suing and of being sued in its corporate name in respect
of -
(a)
any contract made by it;
(b)
any damage to the common property;
(c)
any matter in connection with the land or building for which the body
corporate is liable or for which the owners are jointly
liable;
(d)
any matter arising out of the exercise of any of its powers or the
performance or non-performance of any of its duties under
this Act or
any rule; . . . '
[30]
What must be determined though is whether the Applicant, as the owner
of the property has the requisite standing to bring the
present
application in the light of the fact that the body corporate is in
terms of section 4(1) responsible for the enforcement
of the rules
and for the control, administration and management of the common
property for the benefit of all owners.
[31]
It was contended on behalf of the Applicant that by virtue of the
illegal conduct of Livinafrica, the Applicant has
locus standi
in these proceedings. More specifically, it was further argued that:
31.1 The law cannot
and does not countenance an ongoing illegality which is also a
criminal offence (and to do so would be
to subvert the doctrine of
legality and to undermine the rule of law);
31.2 The
unauthorised and illegal conduct of Livinafrica – in erecting
structure and facilities without the requisite
approval and without
approved plans – is
contra boni mores
and contrary to
public policy;
31.3 Skyscape is
the only other member of the Body Corporate, and there are only two
trustees (being the two representatives
of Skyscape and
Livinafrica). It was thus practically impossible to obtain
trustee authority for the Body Corporate to have
launched these
proceedings;
31.4 The
Applicant’s rights are clearly being infringed by First
Respondent, and thus the former has the standing necessary
to seek an
order protecting its rights accordingly. Furthermore, as the
Respondent’s neighbour, the Applicant has the necessary
locus
standi to apply for a court order to enforce compliance with the
relevant building laws and regulations. Reliance for this
submission
was placed on Van der Walt,
The Law of Neighbours,
at 341.
According to the argument, the self-help demonstrated by the First
Respondent can never be justified by the difficulties
it faced
procuring consent of the body corporate for the intended works as:
“
The right of
access to court is indeed foundational to the stability of an orderly
society. It ensures the peaceful, regulated and
institutionalised
mechanisms to resolve disputes without resorting to self-help.
[1]
”
[32]
According to the Applicant, the First Respondent alleges that it
failed to comply with the above provisions and attempts to
avoid the
apparent failure by stating that because the two trustees of the body
corporate are the Applicant’s sole member
and the Respondent’s
director, it was practically impossible to obtain their
authority for the body corporate to launch
the present proceedings.
However, so argues the Applicant, nothing turns on this submission as
the Applicant did not institute
these proceedings on behalf of the
body corporate. It however, cannot be denied that there is disharmony
and disunity in the body
corporate.
[33]
The issue of
locus
standi
of owners of
sectional scheme property was considered in
Cassim
and Another v St Moritz Body Corporate and Others
(16788/2004, 18425/2004, 2918/2005, 11914/2005) [2010] ZAKZDHC 19 (11
June 2010). It is necessary to give a brief summary of the
facts of
that matter.
[34]
The First and Second Plaintiffs (“the plaintiffs”) had
purchased three sectional title units in a block of flats
known as St
Moritz in 1992. During 2001, the plaintiffs became concerned over
what they perceived as mismanagement of the building.
This gave rise
to a series of court applications which the plaintiffs instituted as
trustees of the body corporate. The Second
Defendant, Voyager
Property Management, in its plea denied that the plaintiffs had locus
standi to bring the proceedings as they
could no longer rely on the
locus standi they had as trustees because the entire board of
trustees had been suspended. The Third
and Fourth Defendants also
raised a special plea stating that the plaintiff cite themselves in
their personal capacities in the
numerous applications and actions.
That being the case, the plaintiffs were bound to take action against
the Defendants in terms
of the Sectional Title Act No 95 of 1986 but
failed to do so.
[35]
Relying on the decision
in
Letseng
Diamonds Ltd v JCI Ltd
2009 (4) SA 58
(SCA)
at 59 in which it was held that an individual shareholder in the
company has
locus standi
to
approach the Court for a determination of issues relating to the
validity of the Agreement, the plaintiff argued that as an individual
member of the body Corporate, owner and trustee, she is entitled to
have the validity of the Loan determined, as it affects her
rights of
ownership in that the creditor is entitled to recover from her, any
shortfall which it could not recover from the Body
Corporate
.
[36]
It
was argued on behalf of the Second Defendant on the other hand
that
the Plaintiffs enjoy adequate remedies under the
Sectional Titles Act
in
that
section 41
provides a comprehensive statutory right for an
owner of a sectional title unit to seek the appointment of a
curator
ad litem
to bring proceedings in the name of the body corporate, where the
body corporate has not instituted proceedings for the recovery
of
damages or loss or where it had been deprived of any benefit in
respect of a matter mentioned in section 36 (6) of the Act.
Counsel
for the Second Defendant relied on this contention on
Wimbledon
Lodge (Pty) Ltd v Gore NO & Others
2003
(5) SA 315
(SCA).
[37]
The court found as follows:
“
I
am satisfied that
section 41
of the
Sectional Titles Act protects
an
aggrieved owner "and the body corporate who have suffered
damages or loss or have been deprived of any benefit in respect
of a
matter mentioned in
section 36(6)
and where the body corporate has
not instituted proceedings for the recovery of such damages, loss or
benefit", by providing
for the appointment of a
curator-ad-litem
at the request of an aggrieved owner, provided the court is satisfied
that the requirements of
section 41(3)
have been met.”
[38]
The plaintiffs appealed
against the finding that they had no
locus
standi
to the
Supreme Court of Appeal. In
Cassim
v Voyager
,
supra
,
the court explained the operation of
s 41
thus:
“
[13]
. . . it appears to me that the section finds application precisely
when there is disharmony and disunity in the body corporate.
The more
dysfunctional the body corporate, the greater, I dare say, the need
for a curator. On the view that I take of the matter,
the argument
advanced by and on behalf of the appellants misconstrues the section.
The section does not require an owner to cause
the body corporate to
act in a particular way if the latter is unwilling to do so. All that
is envisaged is for an owner to effect
service of a notice on the
body corporate calling upon it within the stated period to institute
the contemplated proceedings. Should
it fail to do so the envisaged
remedy available to the owner is not to compel compliance with the
notice but rather to approach
the court for the appointment of a
curator
ad litem
for
the purposes of instituting and conducting the proceedings on behalf
of the body corporate.”
The
court further explained that it is only the body corporate and not
individual members who may institute proceedings against
wrongdoers
and stated thus:
[15]
The last string to counsel’s bow on this aspect of the case was
the following statement from
Wimbledon Lodge
(para 14): ‘If
the body corporate is seen not to do its duty, then an individual's
powers may, to an extent, be restored’.
Plainly what Schutz JA
intended to convey was this: an individual’s powers may to the
extent provided for in
s 41
be restored. Indeed, as Schutz JA pointed
out (para 18), that accords with the general principle at common law
that where a wrong
is done to it, only the company (in this case the
body corporate) and not the individual members may take proceedings
against the
wrongdoers (
Foss v Harbottle
[1843] EngR 478
;
(1843) 2 Hare 461
(67
ER 189)).
Schutz JA’s statement thus affords no authority for
the proposition that owners who find themselves in the position of
the
present appellants are exempt from the provisions of
s 41.
The
conclusion that I therefore reach is that
s 41
finds application to
the appellants.
In
upholding the decision of the trial judge, the court further said
that:
“
[19]
The real difficulty for the appellants in this case, however, is that
they did not impugn the constitutionality of
s 41
or any other
provision of the Act. Accordingly, to borrow from Mokgoro J in
Du
Toit v Minister of Transport
2006
(1) SA 297
(CC) para 29: ‘in these circumstances, and in the
circumstances of this case, the Act cannot be bypassed’.
Section
41 read with s 36(6) plainly encompassed within its scope the
three claims in respect of which the appellants came to be non-suited
by Van den Reyden J. It follows that the conclusion of the learned
judge cannot be faulted and in the result the appeal must fail.”
[39]
The state of the law as discernible from the above judgments
therefore is that the plaintiffs ought to have pursued their
application by invoking provisions of s 9 as it is not exempt from
same. It follows that the applicant lacks
locus
standi
in the
present proceedings. In the light of the finding I have made, it is
plain that the contempt of court proceedings must also
fall away.
[40]
In the result, the following order will issue:
1. The applicant’s
application for a final interdict is dismissed.
2. The application to
have the First Respondent declared to be in contempt of court is also
dismissed.
3. The Applicant is
ordered to pay the First Respondent’s costs.
_______________________
NDITA,
J
[1]
Zondi v MEC
for Traditional and Local Government Affairs and Others
2005 (3) SA
589
(CC) par 61