Biccari and Another v Body Corporate of Shoreham and Others (8961/2015) [2018] ZAWCHC 2; [2018] 2 All SA 36 (WCC); 2018 (3) SA 462 (WCC) (24 January 2018)

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[2018] ZAWCHC 2
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Biccari and Another v Body Corporate of Shoreham and Others (8961/2015) [2018] ZAWCHC 2; [2018] 2 All SA 36 (WCC); 2018 (3) SA 462 (WCC) (24 January 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No:
8961/2015
In
the matter between:
TERESA
ANGELA
BICCARI
First
Applicant
DANIELA
ADRIANA
GIURICICH
Second
Applicant
and
BODY
CORPORATE OF
SHOREHAM
First
Respondent
THE
REGISTRAR OF DEEDS
AND
FORTY SIX OTHERS
Second
to Forty Eighth Respondents
Court
:
Acting Justice JH Loots
Heard
:
7 August 2017
Delivered
:
24 January 2018
REPORTABLE
JUDGMENT
INTRODUCTION
[1]
The
applicants, the co-owners of flat 104 in the sectional scheme known
as “Shoreham”, situated on the corner of Beach
Road and
Marine Drive, Sea Point, Cape Town, seek to have the parking bays
allocated to certain other owners of units in the scheme
declared to
be common property, and thus available for use by all owners of units
in the scheme.
[2]
In response
the respondents opposing the application (referred to as “the
opposing respondents”) in addition to their
opposition to the
application, have launched a counterapplication in terms of which it
is sought that:
a.
the first
respondent be directed to issue replacement certificates to the
fourth and eighteenth respondents indicating their rights
of
exclusive use of the parking bays allocated to them;
b.
the first
respondent be directed to issue in favour of the third, fifth to
seventh, and ninth to seventeenth respondents certificates
indicating
their rights of exclusive use in respect of the parking bays
allocated to them; and
c.
in respect
of the fourteenth respondent that he
[1]
be declared to be the holder of a valid certificate recording his
rights of exclusive use of bay number 6.
[3]
The
applicants oppose the counterapplication.
BACKGROUND
[4]
The
Sectional Title Register of what became the Shoreham development was
opened on 1 May 1984, whereafter, on 30 May 1984, the developer

(Shoreham Mansions (Pty) Ltd) effected a transfer of all units in the
scheme to eight trusts
[2]
, with
the initial owners of the units obtaining their units from one of
these trusts.
[5]
The
relevant respondents (and their predecessors in title, where
applicable) have exercised and enjoyed such rights of exclusive
use
until August 2016; when the applicants launched the application which
served as precursor to this application.
[6]
In April
1989 certificates recognising the rights of the owners who had been
granted rights of exclusive use in respect of the parking
bays were
issued on behalf of the first respondent by its agent, H Lewis
Trafalgar.  Further certificates do not appear to
have been
issued.
[7]
Terrfran
CC, of which the first applicant was a member, acquired the
applicants’ unit on 12 June 1989, with the applicants
acquiring
the unit in their own right on 6 March 2013. At no time did the
applicants’ unit have an exclusive use parking
bay.  Nor,
until 2016, did the applicants wish to exercise any rights over any
parking bay, save perhaps in terms of a rental
agreement entered into
with the fourth respondent in terms of which her bay was rented to
the applicants for a period.
[8]
In August
2016 the applicants launched an urgent application
[3]
to prevent the first respondent from formally transferring the rights
of exclusive use to the relevant respondents, pending the
outcome of
further proceedings.  As will be seen below, while initially
arbitration or review proceedings were envisaged,
ultimately
declaratory relief substantially in the form of that sought in this
application was to be sought.
[9]
The matter,
therefore, turns on whether any of the opposing respondents have, on
the papers before court (and taking into account
the applicable rules
of evidence), in any way, acquired the rights to the exclusive use of
the parking bays allocated to their
units.  If so, then in terms
of section 60(3) of the Sectional Titles Act
[4]
they would be entitled to have the rights registered in their favour,
the dismissal of the application, and the relief sought in
terms of
the counterapplication.  If not, then the rights of exclusive
use in respect of the parking bays in question would
vest in the
first respondent, the effect of which will be discussed below.
DISCUSSION
Rights
of Exclusive Use
[10]
Common
property comprises every part of the land in a sectional title
scheme, together with those buildings or parts of buildings
which
have not been included in any section delineated on the sectional
plan
[5]
.
[11]
Areas of
exclusive use are characterised as portions of the common property in
a sectional scheme which have been reserved for use
by an owner to
the exclusion of the other owners in a scheme.  A good example
of this is the parking bays forming the subject
matter of the present
dispute.
[12]
With regard
to the acquisition of rights of exclusive use in terms of both the
1971 Act and the 1986 Act, Wallis J (as he then was)
in
Herald
Inv Share Block (Pty) Ltd v Meer; Meer v Body Corporate of Belmont
Arcade
[6]
comprehensively set out the position, concluding at paragraph [22]
that:
“
As matters stand at
present, therefore, the Act recognises four different ways in which
an exclusive use area can exist and an exclusive
use right be
enforced. Under the Act such rights can now be created only by way of
registration under s 27 or a rule under s 27A.
However, by virtue of
the transitional provisions of s 60(3), the Act continues to
recognise such rights when created by an agreement
in force when the
1971 Act applied or under rules produced in terms of the 1971 Act.
There is nothing to suggest that the consequences
of enjoying such
rights vary, depending upon their source, save for the advantages
expressly conferred by registration. Certainly
there is nothing to
indicate that its consequences, in regard to contributing to the
costs of maintaining the exclusive use area,
should differ from one
instance to another. However, s 37(1)(b) has not been amended to
follow the other amendments bearing upon
this issue.”
[13]
Extracted
from the above, the four manners in which an exclusive use area,
within the parameters of this application, can exist
are:
a.
In terms of
an agreement in force when the 1971 Act applied
[7]
;
b.
If it was
acquired under rules produced in terms of the 1971 Act;
c.
By way of
registration under section 27 of the 1986 Act; and
d.
In terms of
a rule made pursuant to the provisions of section 27A of the 1986 Act
(applicable between 3 October 1997 and 7 October
2016).
[14]
In the
present matter the rights in question were neither registered in
terms of section 27 of the 1986 Act, nor were any rules
produced in
terms of section 27A of the 1986 Act relating to the allocation of
rights of exclusive use in respect of the parking
bays to the
relevant members of the first respondent.  Since the sectional
scheme was, however, formed pursuant to the provisions
of the 1971
Act, the possibility exists that rights of exclusive use were created
in terms of either the management rules of Shoreham
produced in terms
of the 1971 Act, or in terms of an agreement in force when the 1971
Act applied.
Management
Rules
[15]
In light of
what has been stated above, the starting point for the consideration
of whether any of the opposing respondents acquired
rights of
exclusive use to the parking bays allocated to them is the first
respondent’s management rules; and specifically
rule 52, which
provides as follows:
“
52.
CAR
PORTS AND PARKING BAYS
52.1. The parking bays on
the common property for motor vehicles depicted on the sketch plan
annexed hereto marked “B”
are hereby allocated
for
the exclusive use and occupation of the developer
free from the payment of any rental.
52.2.1. The developer shall
be entitled either to lease the parking bays to, or alternatively to
dispose of its rights in and to
such parking bays, to owners of
sections in the buildings to which such parking bays relate. Any
disposition by the developer of
its rights in and to a parking bay
shall be effected by cession in the form of the cession annexed
hereto marked “C”,
the original of which cession shall be
lodged with and retained by the trustees who shall enter the relevant
particulars in a parking
bay register to be maintained by them.
The
Trustees (or managing agent on their behalf) shall issue to each
sectional owner who has acquired the rights of the developer
to a
parking bay in the manner aforesaid a certificate in the form of the
Certificate annexed hereto marked “D” specifying
the
number of the parking bay in question and certifying that such owner
has the exclusive use, occupation and enjoyment of such
parking bay
free from the payment of any rental.
52.2.2. The developer may at
any time and from time to time, and in consideration for the Body
Corporate assuming the obligations
and rights of the developer in
terms of these Rules, dispose of its rights in respect of any or all
of the parking bays to the
Body Corporate and the Body Corporate
shall be obliged to acquire such rights.  Such disposition shall
be effected in the
manner described in sub-clause 52.2.1.
52.3. The Body Corporate
shall, in respect of the parking bays so acquired by it, have the
right to lease them or alternatively
dispose of them and in such
event the provisions of Rules 52.2.1 [sic] above shall apply mutatis
mutandis.
52.4. Sectional owners to
whom parking bays are leased or who acquire the rights of the
developer to parking bays are hereinafter
referred to as “the
owners” or “an owner”.
52.5.1. Subject to sub- rule
52.5.2, an owner may not without the written consent of the trustees
let or sub-let, as the case may
be, part with possession of or in any
other manner dispose of a parking bay or his rights the very least or
disposed of to him,
as the case may be, in terms of sub- rule 52.2
above.
52.5.2. an owner who has
acquired the rights of the developer to a parking bay pursuant to the
cession referred to in sub- rule
52.2.1 above,
shall
be obliged to dispose of his rights in and to his parking bay to the
transferee of his section.
Such disposition and acquisition shall be effected in the manner
described in sub-rule 52.2.1 above.
52.6.1. The Body Corporate
shall be responsible for maintaining the parking bays and for keeping
them in a clean, hygienic, neat
and attractive condition. The
expenses incurred by the Body Corporate in respect of the foregoing
shall be apportioned equally
over the total number of parking bays
and the Trustees of the Body Corporate shall be entitled to recover
from the developer and/or
the owners, as the case may be, such
portions of the expenses as relate to the parking bays in respect of
which they have the exclusive
right of use and occupation.
52.6.2. The developer and/or
the owners shall not use the parking bays of which they have the
exclusive use or permit them to be
used in such a manner or for such
purposes as are likely to impair the safety, appearance or amenity of
other sections or other
parts of the common property.
52.6.3. The developer and/or
the owners as the case may be, shall use the parking bays for the
purpose of parking a motor car or
a light motor vehicle or motor
cycle and for no other purposes whatsoever.
52.6.4. Notwithstanding the
provisions of sub- rules 52.1 and 52.2 above, the developer and/or
the owners, as the case may be, shall
permit the body Corporate
and/or other person’s access to the parking purpose reasonably
five of such bays and any other
parking bays. The developer and each
owner shall also allow the Body Corporate access to and across his
parking bay for any purpose
reasonably required for the maintenance
of the common property.
52.6.5. If at any time the
building is comprised in this scheme are in terms of Section 36 of
the Sectional Titles Act 1971, as
amended, deemed to be destroyed,
and the owners of the units have by majority resolved in terms of the
said Act not to rebuild
the buildings, all the aforesaid rights in
respect of the parking bays shall automatically lapse sign will take
sleep with the
making by the Registrar of Deeds of the requisite
entry on the sectional plan in terms of the Act.”
[emphasis
added]
[16]
From the
provisions of rule 52 the following is extrapolated in respect of the
creation and transfer of the rights of exclusive
use:
a.
The
management rules themselves did not create original rights of
exclusive use in respect of owners of units within the scheme.

These rights were reserved for the developers (or developers);
b.
The rule
contemplated that the developer would be entitled to transfer its
rights of exclusive use to specific owners;
c.
The method
of transfer prescribed was by way of cession.
d.
The cession
had to be in the form provided for in annexure “C” to the
Management Rules. Despite the wording of the rule
I am prepared to
accept that the cession had to be in writing, substantially
containing the information reflected on annexure “C”;
e.
The
Trustees (or managing agent on their behalf) would issue to each
sectional owner who had acquired the rights of the developer
to a
parking bay in the manner aforesaid, prescribed by rule 52.2.1, a
certificate detailing such ownership.
f.
The rule
further provides that an owner shall be obliged to transfer the
rights of exclusive use to the parking bay acquired by
him to the
transferee of his section;
g.
The
transfer of rights from owner to owner would be by way of written
cession substantially in compliance with annexure C to the
Management
Rules.
[17]
It,
accordingly, appears that those of the opposing respondents who had
received certificates pursuant to rule 52 would be the holders
of
rights of exclusive use over the parking bays allocated to them.
[18]
Conceding
this, the first applicant, in paragraph 48 of the founding affidavit
stated that:
“
Having regard to the
failure by the Third to Eighteenth Respondents to provide
certificates certifying and thus proving their right
to exclusive use
of the open parking bays over which each of them currently exercise
exclusive use, it must be assumed that none
of these Respondents have
been issued with the required certificates
.”
[19]
The
applicants, therefore, although they later sought to shift position
in respect of the admission contained in,
inter
alia
,
paragraph 48 of the founding affidavit, clearly acknowledged and
accepted the provision of a certificate, issued pursuant to the

provisions of rule 52, as proof of the existence of the right of
exclusive use in respect of the parking bays.  This was the
case
the opposing respondents were required to meet.
The
Nineteenth and Fourteenth Respondents
[20]
The
nineteenth respondent had provided such a certificate in respect of
parking bay 5 prior to the launch of this application, with
the
result that the applicants did not proceed against him.
[21]
So too did
the fourteenth respondent provide a certificate in respect of parking
bay 6.
[22]
There is
therefore no doubt that, in terms of section 60(3) of the 1986 Act,
the fourteenth and nineteenth respondents are entitled
to the
transfer of their exclusive use rights to the parking bays that were
allocated to them.
The
Fourth, Seventh, and Eighteenth Respondents
[23]
The fourth,
seventh and eighteenth respondents have all owned their respective
units since prior to the issue of the certificates
produced by the
fourteenth and nineteenth respondents, both of which appeared to have
been issued on 13 April 1989.
[24]
The fourth
respondent, who is the deponent to the substantive affidavits on
behalf of the opposing respondents
[8]
stated that she and her husband were also issued with the same
certificate issued to the fourteenth and nineteenth respondents

during April 1989, but that it had since been lost with other
documents due to water ingress at their home in Johannesburg.
[25]
Given that
the fourteenth and nineteenth respondents were both issued with
certificates on the same day, and given that the position
of the
fourth respondent with regard to the exclusive use of the parking bay
allocated to her unit is the same as that of the fourteenth
and
nineteenth respondents I have no reason to doubt that she and her
husband had indeed been issued with such a certificate at
the time
the fourteenth and nineteenth respondents had received their
certificates.
[26]
I,
accordingly, find that the fourth respondent is the holder of an
exclusive use right in respect of parking bay number 9, and
that she
is both entitled to a replacement certificate and to transfer this
right in terms of section 60(3) of the 1986 Act.
[27]
On the same
basis I find it probable that the seventh and eighteenth respondents
were issued with certificates confirming their
rights of exclusive
use in respect of parking bays 4 and 13 respectively (although the
seventh respondent appear to have been grouped
with those respondents
who had never been issued with a certificate)
[9]
.
The finding follows that the seventh and eighteenth respondents are
both entitled to replacement certificates and, in terms
of section
60(3) of the 1986 Act, to transfer of their rights of exclusive use
to them.
The
Remaining Opposing Respondents
[28]
The
position of the remaining opposing respondents differs from that of
the fourth, seventh, fourteenth, eighteenth, and nineteenth

respondents in that they did not own their units as at 13 April 1989
and there is no evidence to suggest that they were ever issued
with
certificates recognising their rights of exclusive use to the parking
bays allocated to them.
[29]
As is
evident from the above analysis of management rule 52, exclusive use
rights in respect of the parking bays are to be transferred
by way of
written cession in substantially the form provided for in annexure
“C” to the management rules.  Once
transferred the
certificate in the form of annexure D to the management rules is
issued to the person or entity acquiring the right.
[30]
Therefore,
while on the papers that served before me, I was prepared to accept
that the holder of such a certificate was the holder
of the right of
exclusive use in respect of the parking bay allocated to him or
her
[10]
, the position in the
case where there is no proof that a written cession of the right of
exclusive use has taken place between
the seller of a unit and the
purchaser thereof, requires further analysis.
[31]
Whether in
terms of the 1971 Act
[11]
, the
1986 Act
[12]
, or the Sectional
Titles Management Act, No 8 of 2011
[13]
,
owners of units in a sectional title scheme are bound by the
management rules of the scheme; and therefore, as part of the present

enquiry, by Shoreham management rule 52.
[32]
As has been
set out above rule 52 prescribes the procedure to be followed when
transferring rights of exclusive use from the transferor
to the
transferee; i.e. by written cession substantially in the form of
annexure C to the Shoreham management rules.
[33]
Annexure C
reads as follows:
“
C
E S S I O N
SHOREHAM BODY CORPORATE
NO. 94/1984
CARPORTS AND PARKING BAYS
(“Parking Bays”)
(For Fuller details refer to
Plan Annexure “A” to amended Schedule 1
Rules of the Body
Corporate).
C
E S S I O N
We,
THE SHORE TRUST
do hereby with effect from
Cede, transfer and make over
to and in favour of
………………………………………………
..
All of our rights in and to
Parking Bay Number

for value
received.
THUS DONE AND SIGNED
AT

THIS DAY OF
198    .
______________________________
I/We,
Do hereby accept the
aforegoing cession with effect from the aforegoing date and agree and
undertake to be bound by the provisions
of Rule 52 of the amended
Schedule 1 Rules of the Shoreham Body Corporate.
THUS DONE AND SIGNED
AT

THIS DAY OF
198.
”
[34]
The wording
of rule 52, coupled with the specific reference to annexure C to in
the Shoreham management rules, and the wording of
annexure C recorded
above, make it clear that there has to be a written deed of cession
in order for the cession to be valid.  This
accords with the
principle that, while no formalities are in general prescribed for
the act of cession, or the antecedent obligationary
agreement, formal
requirements may be imposed on the validity thereof, for example by
either by agreement
[14]
or by
law.
[35]
Whether the
nature of the management rules of a sectional scheme are defined as
being contractual, have the character of delegated
legislation, or
flow from the legislative power of an autonomous sectional title
community
[15]
, they are
binding on the body corporate, the owners of units, and the occupiers
of units
[16]
.
[36]
In respect
of the remaining opposing respondents the procedure envisaged by rule
52 was not followed, and no formal written deeds
of cession were
concluded.
[37]
The deeds
of sale annexed to the opposing papers contain the antecedent
obligationary agreements in respect of the transfer of the
exclusive
use rights in question. On a reading of these agreements none of
them, in themselves, however constitute real cession
agreements
whereby rights are ceded
[17]
.
[38]
While the
opposing respondents’ contentions regarding the production of
the certificates are valid in respect the fourth,
seventh,
fourteenth, eighteenth, and nineteenth respondents, on the case the
applicants presented, the same does not hold true
for the remaining
opposing respondents.  The remaining opposing respondents
clearly were not issued with certificates confirming
their rights of
exclusive use, with the result that the applicants would succeed in
their opposition to the counterapplication
in respect of the
remaining opposing respondents if it appears that these respondents
are not the holders of exclusive use rights
in respect of the parking
bays allocated to them.
[39]
Insofar as
agreements, not recorded in the Shoreham Management Rules could have
existed while the 1971 Act was still in force, which
on the papers
appear not to have been the case, the such an agreements would have
been between the developer and the original owners
of the units,
which agreements would have been superseded by the Shoreham
Management Rules; especially where the remaining opposing
respondents
are concerned, none of whom are original owners, and all of whom
acquired their units after the 1986 Act came into
operation, and
after the certificates were issued to the owners in 1989.
[40]
From the
analysis in respect of the remaining opposing respondents it follows
that these rights were not transferred to them; with
the result that
they are not the holders of the relevant rights and not entitled to
be issued with certificates confirming their
rights of exclusive use.
The
Effect of the Rights not having been Transferred to the Remaining
Opposing Respondents
[41]
Having
established that the remaining opposing respondents are not the
holders of the exclusive use rights in respect of the parking
bays
allocated to them, it needs to be established where such rights
currently reside.
[42]
Section
27(4)(b) of the 1986 Act provides as follows:
“
If an owner ceases to
be a member of the body corporate in terms of
section 2(3)
of the
Sectional Titles Schemes Management Act, any
right to an exclusive
use area still registered in his or her name vests in the body
corporate free from any mortgage bond.”
[43]
Section
2(3) of the Sectional Titles Management Act states that:
“
Any other member of
the body corporate ceases to be a member thereof when such member
ceases to be the owner of a unit in the scheme
in question
.”
“
Any
other member” refers to any member other than the developer.
[44]
Applied to
the predecessors in title of the remaining respondents, none of the
remaining opposing respondents’ predecessors
in title have
remained members of the first respondent.
[45]
As set out
in
McKersie
v SDD Developments
[18]
the result is that, in terms of section 27(4)(b) of the 1986 Act, the
exclusive use rights of the remaining opposing respondents
vest in
the first respondent, free from any mortgage obligation.
[46]
Considering
the provisions of section 27(4)(c)(i) (which provides that if a right
of exclusive vests in the body corporate in terms
of subsection
27(4)(b) the body corporate shall, in the prescribed form apply to
the registrar for the issuing of a certificate
or certificates of
real rights of exclusive use in its favour), the application of
section 27(4)(b) does not mean that the right
of exclusive use loses
its character as such.
[47]
In respect
of the obligations resting on the first respondent once vested with
the rights of exclusive use in terms of section 27(4)(b)
of the 1986
Act, although I express no final view on this, three possibilities
appear to present themselves.
[48]
Prof CG van
der Merwe
[19]
argues that,
once the body corporate becomes vested with the exclusive use right
in terms of section 27(4)(b) of the 1986 Act,
it is obliged to deal
therewith in accordance with the provisions of section 27(3) of the
same Act in the manner in which the body
corporate is obliged to deal
with a right of exclusive use created in terms of section 27(2).
[49]
However,
the structure of the relevant provisions of the 1986 Act, read with
the relevant provisions of the Sectional Titles Management
Act, seems
to militate against this argument, by virtue of the following:
a.
Section
27(3) of the 1986 Act provides that:
“
A right to the
exclusive use of a part or parts of the common property delineated on
the sectional plan in terms of subsection (2)
shall be transferred to
the owner or owners on whom such right has been conferred by the body
corporate by the registration of
a notarial deed entered into by the
parties and in which the body corporate shall represent the owners of
all the sections as transferor.”
b.
Section
27(2) of the 1986 Act states that:
“
A body corporate may,
subject to the provisions of section 5 (1) of this Act and
section 5
(1)(d) of the
Sectional Titles Schemes Management Act, request
an
architect or land surveyor to apply to the Surveyor-General for the
delineation on a sectional plan in the manner prescribed
of a part or
parts of the common property in terms of
section 5
(3)(f) for the
exclusive use by the owner or owners of one or more sections:
Provided that no such delineation shall be made on
the sectional plan
in terms of this subsection if such delineation will encroach upon a
prior delineation on the sectional plan
of a part of the common
property for the exclusive use by one or more of the owners.
”
c.
Section
5(1)(e)
of the
Sectional Titles Schemes Management Act states
that a
body corporate:
“
may, upon unanimous
resolution by the owners, request the delineation and cession of
exclusive use rights to particular owners in
terms of section 27 (2)
of the Sectional Titles Act;”
In
my view, therefore, it would appear that section 27(3) of the 1986
Act applies to exclusive use areas delineated in terms of
section
27(2) of the 1986 Act, and not to exclusive use rights acquired in
terms of section 27(4)(b).
[50]
The second
possibility is that, as postulated by Rogers AJ (as he then was) at
paragraph [41] of
McKersie
,
in
respect of rights acquired in terms of section 27(1)(c) of the 1986
Act
[20]
, that the rights may
have vested in the first respondent subject to the personal
obligation owed to the opposing respondent’s
predecessors in
title to have transferred the rights of exclusive use to the new
owners of the units acquired, who would then ultimately
be obliged to
transfer the said rights to the remaining opposing respondents.
Support for this approach may further be found
in Shoreham management
rule 52.5.2 in terms of which an owner of a unit is “
obliged
to dispose of his rights in and to his parking bay to the transferee
of his section
”
.
[51]
The third
possibility is that a purposive interpretation of Shoreham management
rule 52.3 will vest the first respondent with the
right to lease the
relevant parking bays to its members or alternatively dispose of
them.
[52]
In light of
the fact that the exclusive use rights that vest in a body corporate
in terms of section 27(4)(b) of the 1986 Act do
not become common
property for use in the manner contemplated by the application, the
application must also fail to the extent
that the applicants seek
that it be declared that the parking bays allocated to the further
opposing respondents form part of the
common property vesting in the
first respondent for the use and benefit of all the unit owners
[21]
.
COSTS
Main
Application
[53]
The
ordinary rule in respect of costs is that costs follow the result.
In light of the findings above, the applicants have
failed to obtain
the relief sought in the main application; with the result that they
ought to pay the respondents costs in respect
of the main
application.
The
Counterapplication.
[54]
The fourth,
seventh, fourteenth and eighteenth respondents have succeeded in
obtaining the relief sought in terms of the counterapplication.

In the result, applying the ordinary rule in relation to costs, they
are entitled to their costs in respect of the counterapplication.
[55]
By the same
token the third, fifth, sixth, and ninth to seventeenth respondents
were unsuccessful in respect of the counterapplication;
with the
result that the applicants ought to be entitled to their costs in
relation to their opposition of the counterapplication
insofar as it
relates to these respondents. In awarding these costs I find that the
matter is of sufficient complexity to have
warranted the employment
of two counsel. The costs awarded to the applicants are, therefore,
to include the costs occasioned by
the employment of two counsel.
Urgent
Application
[56]
The urgent
application brought under case number 15382/16 culminated in an order
by Henney J on 8 October 2016 in terms of which
it was ordered that:
“
1. The Applicants are
directed to commence appropriate High Court proceedings within 30
days of the grant of this order declaring
that parking bay numbers
1,2,3,4,6,7,8,9,10,11,12,13,14,and15 (“the parking bays”)
are declared to be common property
owned by the owners of sections
jointly in undivided shares proportionate to the quotas of their
respective sections as specified
in the sectional plan (“the
declaratory proceedings”)
2. Pending the determination
of the declaratory proceedings:
2.1.
the First Respondent is interdicted and Restrained from taking any
steps to formally register the parking bays as exclusive
use areas in
the Deeds Office;
2.2.
the status quo regarding the current use of the parking bays shall
remain;
3 The first respondent
shall make a contribution toward the legal costs of the applicants.
”
[57]
From the
founding affidavit it appears that this order was granted pursuant to
discussions held between the representatives of the
first respondent
and those of the applicant.
[58]
The relief
envisaged by the above order of Henney J differs markedly from the
relief envisaged by the order granted by Desai J on
30 August 2016.
In terms of this order a
rule
nisi
was issued in terms of which the first respondent was called to show
cause why it should not be interdicted and restrained from
taking any
steps to formally register the parking bays as exclusive use areas
pending either an arbitration review proceedings
in terms of which
the applicants would seek:
a.
an order
setting aside a decision taken by the first respondent on or about 16
August 2016, that all parking bays currently used
by certain unit
owners would be formally registered as an exclusive use area with the
second respondent;
b.
directory
relief in relation to the amendment in respect of the rules and
management of the Shoreham body corporate in terms of
section 35(5)
of the 1986 Act;
c.
that the
first respondent obtain a layout plan in terms of section 27A of the
1986 Act which was to be attached to the amended rules
and filed with
the second respondent;
d.
that the
relevant parking bays be allocated in terms of the amended rules.
[59]
In light of
the findings in this application in relation to the declaratory
relief the applicant sought, seen against the background
of the
nature of the relief envisaged by the order granted by Henney J,
which in turn is to be compared to the relief initially
sought as
contained in the order of Desai J, the applicants, in my view, are to
pay the costs of the urgent application.
This finding is not to
impact on existing costs orders granted, and specifically not on the
order contained in paragraph 3 of the
order granted by Henney J, as
referred to above, which costs orders (for the sake of clarity) any
award of costs in respect of
the urgent application will exclude.
ORDER
[60]
In the
premises I make the following order:
a.
The
application is dismissed, with costs.
b.
The fourth,
seventh, fourteenth and eighteenth respondents are declared to be the
holders of rights of exclusive use to the parking
bays allocated to
them.
c.
The
fourteenth respondent is declared to be the holder of a valid
certificate recording his rights of exclusive use of the parking
bay
allocated to him, being parking bay number 6.
d.
The first
respondent is directed to issue replacement certificates to the
fourth, seventh, and eighteenth respondents indicating
their rights
of exclusive use of the parking bays allocated to them.
e.
The
counterapplication in respect of the relief sought by the third,
fifth, sixth, and ninth to seventeenth respondents, is dismissed.
f.
The
applicants shall pay the costs of the counterapplication in respect
of the fourth, seventh, fourteenth and eighteenth respondents.
g.
The third,
fifth, sixth, and ninth to seventeenth respondents shall pay the
applicants’ costs in respect of the opposition
to the
counterapplication insofar as it relates to the relief sought by
these respondents, such costs to include the costs occasioned
by the
employment of two counsel.
h.
The
applicants are ordered pay the costs of the urgent application
brought under case number 15382/2016.
__________________________
JH
LOOTS
Acting
Judge of the High Court
For
the Applicants:
Adv GW
Woodland SC, with him Adv AA Brink (instructed by Frank Biccari
Attorneys)
For
the Defendant:
Adv J Butler SC (instructed by Maurice Phillips Wisenberg)
[1]
The fourteenth respondent has since passed away.  However,
inasmuch as the relief may impact his estate, the counterapplication

in respect of the fourteenth respondent will still be considered.
[2]
While there is a dispute as to the exact nature of this transfer the
dispute is not of much moment for the purpose of deciding
the case.
[3]
Under Case Number 15382/16.
[4]
Act 95 of 1986.
[5]
See the definition of common property in both section 1 of the 1971
Act and section 1 of the 1986 Act. Although not relevant
to the
present dispute the definition in the 1986 Act includes land
acquired in terms of section 26 of that Act.
[6]
2010 (6) SA 599
(KZD) at paragraphs  [12] to [18].
[7]
Until 1 June 1988.
[8]
The remaining opposing respondents filed confirmatory affidavits to
the affidavits deposed to by the fourth respondent.
[9]
In paragraphs 50 to 56 of the Answering Affidavit and Affidavit in
Relation to Counter Application, however the case is made
out that
the seventh respondent would have been issued with a certificate on
the same basis as
inter alia
the fourteenth and eighteenth
respondents.
[10]
This includes those persons who I was satisfied would have been
issued with the relevant certificate as set out in the section
of
the judgment dealing with the position of the fourth, seventh,
fourteenth, eighteenth and nineteenth respondents.
[11]
Section 27.
[12]
Section 35.
[13]
Section 10.
[14]
Brayton Carlswald (Pty) Ltd and Another v Brews
2017 (5)
SA 498
(SCA) at par [9], where it is reaffirmed that the parties may
agree that a written deed of cession is a requirement for its
validity.
[15]
See Van de Merwe,
Sectional Titles, Share Blocks and Time
Sharing
, Vol.1, par 13 11, regarding the nature of the rules.
[16]
Currently in terms of Section 10(4) of Act 8 of 2011.
Previously in terms of section 35(4) of the 1986 Act and section

27(5) of the 1971 Act.
[17]
Brayton Carlswald –
supra at par [15].  The
underlying obligationary agreement and the real agreement of cession
are separate juristic acts,
which may or may not be embodied in the
same document.
[18]
2013 (5) SA 471
(WCC) at par [18].
[19]
Sectional Titles, Share Blocks and Time Sharing
, Vol.1, at
par 10.5.3.2.
[20]
Which may be directly applicable depending on a final finding in
respect of the nature of the transfer to the initial eight trusts

referred to in paragraph [4] above.
[21]
In this regard cognisance must also be taken of the application
paragraph 1 of the order by Henney J on 8 October 2017.