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[2018] ZAWCHC 54
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Trustees for the Time Being of the Avenues Body Corporate v Shmaryahu and Another (A31/2018) [2018] ZAWCHC 54; 2018 (4) SA 566 (WCC) (10 May 2018)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A31/2018
Before: Mr Justice Binns-Ward
Mr
Acting Justice Langa
Hearing: 4 May 2018
Judgment:
10 May 2018
In
the matter between:
TRUSTEES
FOR THE TIME BEING OF
THE
AVENUES BODY
CORPORATE
Appellants
and
ALAIN
SHMARYAHU
First
Respondent
COMMUNITY
SCHEMES OMBUD
SERVICE
Second
Respondent
JUDGMENT
BINNS-WARD
J (LANGA AJ concurring)
:
[1]
In these proceedings the court is seized of
a statutory appeal against an order made by a part-time adjudicator
in a matter submitted
by the first respondent for determination in
terms of the Community Schemes Ombud Service Act 9 of 2011 (‘the
Act’).
Section 57(1) of the Act provides that ‘[a]n
applicant, the association
[
[1]
]
or any affected person who is dissatisfied by an adjudicator’s
order, may appeal to the High Court, but only on a question
of law’.
[2]
The object of the Act (which was assented
to and brought into operation on the same dates, respectively, as the
Sectional Titles
Schemes Management Act 8 of 2011
[2]
)
is to provide a service and the mechanisms for the expeditious,
informal and cost-effective resolution of disputes ‘in
community schemes’.
[3]
‘
Community schemes
’
are, by definition, ‘any scheme or arrangement in terms of
which there is shared use of and responsibility for parts
of land and
buildings, including but not limited to a sectional titles
development scheme, a share block company, a home or property
owner’s
association, however constituted, established to administer a
property development, a housing scheme for retired
persons, and a
housing co-operative as contemplated in the South African
Co-operatives Act, 2005 (Act No. 14 of 2005)’.
[4]
[3]
The appellants are the trustees for the
time being of The Avenues Body Corporate. The Avenues is a
sectional title development
scheme, and therefore a ‘community
scheme’ within the meaning of the Act. The trustees,
collectively, as the
persons responsible for administering the
functions and powers of the body corporate,
[5]
are an ‘association’ within the meaning of the Act.
[4]
The first respondent (who was the applicant
in the matter determined by the adjudicator) was between August 2013
and November 2016
the registered owner of a unit in the sectional
title development scheme. In February 2017, more than two
months after he
had ceased to be a member of the body corporate
having sold his unit, the first respondent caused his attorneys to
write to the
managing agents of the scheme and the trustees advising
that he had come to realise that the levies that he had paid during
the
time he had owned a unit in the scheme had been premised on the
application by the managing agent and the trustees of ‘an
irregular levy formula’. He demanded that certain
information be provided to him to enable him ‘to investigate
the formula used … in respect of the monthly levies paid and
whether they were in accordance with the Sectional Titles Act
[95 of
1986], and within the confines of the law’. He intimated
that should his demand not be acceded to he would approach
‘an
appropriate forum’ to compel the managing agent and the body
corporate to grant him access to the information that
he required.
[5]
Section
38(1) of the Act provides ‘[a]ny person may make an application
[for dispute resolution] if such person is a party
to or affected
materially by a
dispute
’.
Section 38(2)(a) provides that such an application falls to be ‘made
in the
prescribed
manner and as may be required by practice directive’. (My
italicisation.) Those provisions fall to be construed
with
regard to the specially defined meanings of the words ‘dispute’
and ‘prescribe’. ‘Dispute’
is defined
in s 1 to mean ‘
a dispute in
regard to the administration of a community scheme
between
persons who have a material interest in that scheme
,
of which one of the parties is the association, occupier or owner,
acting individually or jointly
’
and ‘prescribe’ is defined to mean ‘
prescribe
by regulation made under this
Act
’. (Underlining
supplied for emphasis.)
It is only in
respect of ‘disputes’, as defined, that the Ombud Service
may entertain applications.
[6]
Not satisfied with the response that he
received, the first respondent submitted an application for dispute
resolution to the Western
Cape office of the Community Schemes Ombud.
Regulation 19 of the Regulations on the Community Schemes Ombud
Service, 2016
[6]
prescribes that ‘[a]n application referred to in section 38(1)
of the Act must be made by submission of an application by
physical
delivery or electronically, in accordance with the practice directive
issued by the chief ombud’.
[7]
I have not been able to find a relevant
practice directive by the Chief Ombud, who is invested by s 36
with the authority to
‘issue practice directives with regard to
any matter pertaining to the operation of the Service’. A
four-stage
dispute resolution procedure, evidently framed with
reference to the provisions of the Act, has however been published on
the Service’s
website. The webpage explains that the
process commences with the submission of a duly completed pro forma
application for
dispute resolution form, a copy of which can be
downloaded from the site. The first respondent submitted his
application
using the pro forma document. Whether the
publication on the Service’s website properly complies with the
requirements
of s 38(2)(a) or the aforementioned regulation 19
is questionable, but as no point was taken about the validity of the
institution
of the proceedings, and as we have concluded that the
adjudicator’s order should in any event be set aside, we have
been
prepared for present purposes to assume that the first
respondent’s application was effectively submitted to the
ombud.
[8]
In
his application for dispute resolution the first respondent
articulated his complaint as follows in the section of the form
headed ‘
Details of application/
alleged breach
’:
Failure to provide us with information regarding the
sectional title levy calculations. We have established
discrepancies
with other owners having extending (sic) their units
without the required municipality approval. Therefore paying
less rates
and levies. Garages also being converted into living
spaces.
In the section of the form headed ‘
Relief sought: What
remedy are you requesting? How do you want the problem to be
solved?
’, the first respondent stated:
Want all the units to be remeasured by a land surveyor
(independent). To determine correct amounts payable (i.e.
levies).
Only then we will know if a refund is due.
(It will be noted that the relief sought in the application differed
somewhat from that demanded in the preceding correspondence,
but
nothing turns on that.)
[9]
It was clear enough from the first
respondent’s application to the Ombud Service that he
considered that in the context of
various unspecified extensions to
and conversions of some of the sections in the sectional title
development a re-measurement was
required to achieve a fair and
legally compliant determination of the levies payable by the
individual members of the body corporate.
[7]
He apparently wanted the need for a re-measurement to be confirmed
and, if it was, to be reimbursed in the sum of the difference
between
the contributions he had actually paid and the amount for which he
would have been liable had those contributions been
calculated with
regard to the aforementioned extensions and conversions.
[10]
The validity of the first respondent’s
claim fell to be determined with regard to the relevant provisions of
the regulating
legislation.
[11]
During all but the last few weeks of the
period of the first respondent’s ownership of a unit in the
sectional title development
[8]
his liability to contribute by way of payment of levies to a fund
sufficient for the repair, upkeep, control, management and
administration
of the common property, and for the payment of rates
and taxes and any other local authority charges for the supply of
utilities
and services to the building(s) or land, as well as any
insurance premiums which were applicable thereto, was regulated in
terms
of the
Sectional Titles Act 95 of 1986
. Subject to
certain exceptions,
[9]
none of which was alleged by any party to be applicable in the
current case, the extent of his liability in this respect,
proportionate
to that of the other members of the body corporate, was
statutorily determined by the ‘
participation
quota
’ pertaining to his
section.
[10]
[12]
In terms of
s 32(1)
of the
Sectional
Titles Act ‘the
participation quota of a section shall be a
percentage expressed to four decimal places, and arrived at by
dividing the floor area,
correct to the nearest square metre, of the
section by the floor area, correct to the nearest square metre, of
all the sections
in the building or buildings comprised in the
scheme’. The relevant floor areas are indicated on the
sectional plan
[11]
prepared by a qualified architect or land surveyor in terms of
s 5
of the
Sectional Titles Act, and
the corresponding participation
quotas are required to be indicated on a schedule annexed to the
plan.
[12]
After being approved by the surveyor general,
[13]
sectional plans are registered by the registrar of deeds when the
sectional title register is opened.
[14]
A sectional title unit owner’s real rights of ownership
are vested by registration in the sectional title register.
The
participation quota attached to the first respondent’s section,
and indeed also those attaching to each of the other
sections in the
scheme, were a matter of public record and he would not have been
reliant on information obtained from the appellants
to verify them.
If the registered participation quotas in respect of The Avenues
Sectional Title Development Scheme required
adjustment because of the
subsequent extension of some of the sections, new measurements and
the registration of amended plans
known as ‘sectional plans of
extension’ would have to be undertaken to achieve that.
[15]
Any consequential adjustment to the originally determined
participation quotas would become effective only upon registration
of
the sectional plans of extension.
[13]
The
appellants referred the first respondent’s application to their
attorneys, who wrote to the Ombud Service by letter dated
1 June
2017 raising the following legal points:
1.
That
the first respondent was not an owner or occupier in the sectional
title scheme, nor did he have a
material
interest
in the scheme, with the result
that the application did not raise a
dispute
as defined in the Act. Accordingly, so it was contended, the
Ombud Service lacked jurisdiction to entertain the application.
2.
That,
having regard to s 11 of the Sectional Titles Management Act
(which for all relevant purposes has, with effect from 7
October
2016, substituted
s 32(3)
of the
Sectional Titles Act) and
to
s 24(8)
of the
Sectional Titles Act, the
levies payable by the
first respondent were determined by his
registered
participation quota, and that any adjustments thereto effected
consequent upon any extensions to any sections in the scheme would
come into effect only
prospectively with
effect from the date of registration
of
the pertinent sectional plans of extension.
[14]
The appellants’ attorneys also
advised that their instructions were that a handful of owners in the
scheme may indeed have
extended their sections without the requisite
approval and that an investigation was underway in this regard.
They reported
that the appellants had appointed a land surveyor for
the purposes of ascertaining whether or not extensions had been
effected,
and if necessary, re-measuring the effected units. It
was pointed out that should any extensions be verified appropriate
steps would be taken, and ‘the relevant extensions registered
with the deeds office’. It follows from the relevant
working of the
Sectional Titles Act summarised
earlier that the
registration of the extension of any of existing sections in the
scheme would result in a proportionate reduction
of the respective
participation quotas of the unaltered sections and a related increase
in those of the extended sections.
The changes would bring
about a commensurate adjustment in the level of the contribution
levies payable by the unit owners; the
owners of the extended units
would thereupon have to contribute relatively more and the owners of
the unaltered units relatively
less.
[15]
The first respondent’s attorneys, to
whom a copy of the appellants’ attorneys’ aforementioned
letter to the Ombud
Service had been provided, addressed a response
to it to the Service. They contended that the Service had
jurisdiction because
the first respondent
was
a person with a material interest in the scheme. No particulars
were given of the grounds upon which the contention was founded.
The attorneys reiterated that the first respondent’s request
for information from the appellants was ‘in order to make
an
assessment, based on the reasons provided in the application [as to
which see para. [8]
above], to
determine if the applicant has a financial claim against the
association’.
[16]
The Service convened a conciliation hearing
on 28 June 2017,
[16]
and when that proved fruitless, referred the matter for
adjudication.
[17]
(It may be inferred that the ombud must have considered that the
matter constituted a ‘dispute’ as defined in
s 1 of
the Act,
[18]
for had she not done so she should have rejected the application for
want of jurisdiction, in terms of s 42 of the Act.)
[17]
The
adjudicator was empowered to dismiss the application,
[19]
or to make an order ‘granting or refusing each part of the
relief sought by the applicant’.
[20]
The character of the various types of substantive relief that an
adjudicator is empowered to grant in terms of the Act appears
from
the provisions of s 39.
[21]
The section has a bearing on what might constitute a ‘material
interest’ in a scheme for the purposes of the
Act, a question
to which I shall have to return presently in relation to the
appellants’ jurisdictional challenge.
It is therefore
useful to dwell for a bit on its provisions.
[18]
It provides for the possibility of a number
of different types of order being made in respect of seven expressly
specified categories
of ‘issues’; viz. (i) ‘financial
issues’,
[22]
(ii) ‘behavioural issues’,
[23]
(iii) ‘scheme governance issues’,
[24]
(iv) issues ‘in respect of meetings’,
[25]
(v) ‘in respect of management services’,
[26]
(vi) ‘in respect of works pertaining to private areas and
common areas’
[27]
and (vii) ‘in respect of general and other issues’.
[28]
It is evident from the character of each of the categories of issues
that they pertain primarily to matters germane to the
community
schemes, and only incidentally to related personal or individual
interests or rights. That much may be illustrated
with regard
to the detailed provisions in regard to just one of the specified
categories, ‘financial issues’.
The orders that may
be sought in relation to that category are –
(
a
) an order requiring the association
to take out insurance or to increase the amount of insurance;
(
b
) an order requiring the association
to take action under an insurance policy to recover an amount;
(
c
) an order declaring that a
contribution levied on owners or occupiers, or the way it is to be
paid, is incorrectly determined or
unreasonable, and an order for the
adjustment of the contribution to a correct or reasonable amount or
an order for its payment
in a different way;
(
d
) an order requiring the association
to have its accounts, or accounts for a specified period, audited by
an auditor specified in
the order;
(
e
) an order for the payment or
re-payment of a contribution or any other amount; or
(
f
) an order requiring a specified
tenant in a community scheme to pay to the association and not to his
or her landlord, all or part
of the rentals payable under a lease
agreement, from a specified date and until a specified amount due by
the landlord to the association
has been paid: Provided that in terms
of such an order—
(i)
the tenant must make the payments specified and may not rely on any
right of deduction, set-off or counterclaim that he or she
has
against the landlord to reduce the amount to be paid to the
association;
(ii)
payments made by the tenant to the association discharge the tenant’s
liability to the landlord in terms of the lease;
and
(iii)
the association must credit amounts received from the tenant to the
account of the landlord.
It is clear from the context in my view that all of the available
remedies bear on the community, and only incidentally on their
effect
on an individual member. Inasmuch as it could be argued that
paras (c) and (e) above might apply to the first respondent’s
claim, the argument is only superficially attractive. The
‘contribution’ referred to in these paragraphs is a
contribution that would have been levied on the community, not a
charge levied on an individual - other than as part of such
individual’s
proportionate share of a charge on the community
as a whole. This follows from the use in para (c) of the phrase
‘a
contribution levied on owner
s
or ‘occupier
s
’
instead of ‘a contribution levied on an owner or occupier’.
There is no reason to understand that the
legislature intended that a
different meaning should be attached to ‘contribution’ in
para (e) to that which it bears
in para (c).
[19]
An individual’s right to claim relief
in terms of the Act is dependant on his or her being materially
affected by one or other
of these community scheme related matters.
Even then the individual’s right to avail of the special
statutory dispute
resolution mechanism is also dependent on him or
her having ‘a material interest
in
the scheme
’. Both
requirements must be satisfied for standing as an applicant in terms
of s 38 to be established.
[20]
An applicant for relief in terms of the Act
is required to identify in its application which of the orders
particularised in s 39
it seeks. In the current matter the
first respondent did not expressly do that, but his attorneys
subsequently stated (in
their response to the appellants’
attorneys’ aforementioned letter of 1 June 2017
[29]
)
that his claim was for orders in terms of –
(a) s 39(1)(d) of the Act; viz. ‘an order requiring the
association to have its accounts, or accounts for a specified
period,
audited by an auditor specified in the order’;
(b) s 39(1)(e) of the Act; viz. ‘an order for the payment
or re-payment of a contribution or any other amount’;
(c) s 39(7)(a) of the Act; viz. ‘an order declaring that
the applicant has been wrongfully denied access to information
or
documents, and requiring the association to make such information or
documents available within a specified time’; and
(d) s 39(7)(b) of the Act; viz. ‘any other order proposed
by the chief ombud’.
[21]
It should have been readily apparent on the
facts of the case that only the order described in item (b) of the
preceding paragraph
might arise for consideration; and then only if
making it would result in the determination of a ‘dispute’
as defined,
and would give rise to an obligation on the respondent
that was not inconsistent with the legislation regulating the type of
scheme
that was involved. There was no complaint about the
scheme’s books of account and there was nothing an auditor
could
contribute to altering the registered participation quotas that
governed the calculation of members’ financial contributions.
It should also have been clear on the facts that all of the
information or documentation that the first respondent required in
order to determine the extent of his proportionate liability to
contribute financially to the scheme was a matter of public record.
He had no need of information from the trustees. There was,
moreover, nothing to indicate that an order of the character
contemplated in s 37(7)(b) had been proposed.
[30]
The first respondent’s attorney’s invocation of the
provision in the abstract was therefore conspicuously meaningless.
[22]
Proceedings before an adjudicator in terms
of the Act are conducted informally. The procedure is
inquisitorial
[31]
and legal representation is not permitted, unless the adjudicator and
the parties otherwise agree, or after considering - (i) the
nature of the questions of law raised by the dispute; (ii) the
relative complexity and importance of the dispute; and (iii) the
comparative ability of the parties to represent themselves in the
adjudication, the adjudicator concludes that it would be unreasonable
to expect a party to deal with the adjudication without legal
representation.
[32]
There is no indication that a record was kept of the hearing
before the adjudicator in the current matter, and all we have
of
relevance, apart from a copy of the first respondent’s
application and the abovementioned correspondence, is his summary
of
the parties’ submissions in his statement of reasons.
[33]
It does not appear from that that there was any factual dispute
between the parties. It appears to have been common
ground that
there had been unauthorised extensions to certain sections in the
scheme. In that regard it was recorded by the
adjudicator that
the affected owners had been required by the appellants to submit
detailed plans in respect of the extensions
to the appointed land
surveyors (Stern and Ekermans)
[34]
by the end of November 2017, obviously for the purpose of enabling
extension sectional plans to be registered.
[23]
The adjudicator made the following order:
In terms of Section 54(4) of the CSOS Act the following
order is hereby made by the Adjudicator and such Order shall be
complied
with on or before 31 January 2018 by the Respondent
[i.e. the appellants], subject to the conditions below:
7.1 To partially grant the Applicant’s prayers for
relief sought under paragraph 4 and to order the Respondent to
calculate
the levies paid by the Applicant by determining the
participation quota of the Applicant in relation to the participation
quota
as established in terms of the new registered sectional title
scheme based on the revised participation quotas, subject to –
The draft sectional plan of consolidation to be
submitted to the Surveyor-General on or before 31 January 2018
to be accompanied
by a certificate by the local authority approving
the consolidation and a schedule specifying, in the manner
prescribed, the participation
quota of the new section created, being
the aggregate of the quotas of the sections that are to be
consolidated.
The
nature of the order granted, and which the first respondent appeared
in person at the hearing of the appeal to defend, confirms
that the
essence of the first respondent’s complaint, and the object of
his application, were that his levy contributions
should be adjusted
ex post facto
in accordance with the recalculated participation quota in respect of
his unit as reflected on the schedules to the draft sectional
plans
of extension
[35]
that it was plainly intended should be submitted
[36]
in order to regularise the changes some of the members of the body
corporate had effected to their sections.
[24]
The appellants, who were dissatisfied with
the order, exercised their right of appeal in terms of s 57 of
the Act by filing
with the registrar of the court a ‘notice of
appeal in terms of section 57 of the Community Schemes Ombud Service
Act No.
9 of 2011’. A copy of the notice was served by
the appellants or their attorneys on the first respondent’s
attorneys
and on the Service’s Cape Town offices. The
notice incorporated four ‘grounds for [the] appeal’.
Annexed to the notice were copies of the adjudicator’s order
endorsed by the clerk of the magistrates’ court, Cape Town
and
of the adjudicator’s statement of reasons. A volume
entitled ‘Record on Appeal’, consisting of a collation
of
documents related to the proceedings in terms of the Act was filed
separately, and some time later, under cover of a filing
sheet
evidencing service on the first respondent’s attorneys and the
Service’s office in the same manner as the ‘Notice
of
Appeal’. We raised with the appellant’s counsel
whether the ad hoc procedure adopted by the appellants to
initiate
these proceedings had been proper or appropriate.
[25]
The appeal is not one for which provision
is made in terms of the rules of court, and no procedure has been
prescribed for it in
terms of the Act or the regulations made
thereunder. It is well recognised that the word ‘appeal’
is capable
of carrying various and quite differing connotations.
One therefore has to look at the language and context of the
statutory
provision in terms of which a right of appeal is bestowed
in a given case to ascertain the juridical character of the remedy
afforded
thereby. An appeal in terms of s 57 is not a
‘civil appeal’ within the meaning of the
Superior Courts
Act 10 of 2013
.
[37]
What may be sought in terms of
s 57
is an order from this court
setting aside a decision by a statutory functionary on the narrow
ground that it was founded on an
error of law. The relief
available in terms of
s 57
is closely analogous to that which
might be sought on judicial review. The appeal is accordingly
one that is most comfortably
niched within the third category of
appeals identified in
Tikly v Johannes
1963 (2) SA 588 (T),
[38]
at 590-591.
[26]
The proper manner in which such an appeal
should be brought in the circumstances is upon notice of motion
supported by affidavit(s),
which should be served on the respondent
parties by the sheriff. It would also have been indicated for
the adjudicator, and
not just the Service, to have been cited as a
respondent. Whilst the adjudicator might be expected in the
ordinary course
to abide the judgment of the court, there will be
cases in which the adjudicator might nevertheless consider that it
might be helpful
to file a report for the court in respect of any
aspect of fact or law not dealt with in his or her statement of
reasons that might
have assumed significance in the context of the
nature of a particular challenge advanced on appeal. It is also
desirable
that when, as happened in the current matter, the
adjudicator’s order has been registered as an order of court in
terms of
s 56 of the Act, notice of the proceedings also be
given to the registrar or clerk of the court concerned; for the
setting
aside of the order should as a matter of good order result in
the registrar or clerk concerned expunging the registration of it
from the court’s records. However, as no-one objected to
the procedure used by the appellants, and as effective notice
of the
appeal appeared to have been achieved,
[39]
we agreed to entertain the appeal notwithstanding the procedurally
irregular manner in which it had been brought. (Litigants
should not be misled by this into assuming that similar indulgence
will be afforded in like matters in the future.)
[27]
As mentioned, the appellants stated four
grounds for their appeal. In view of the restricted basis for
appeal permitted in
terms of s 57 of the Act it would have been
preferable if they had stated the points of law in respect of which
they contended
that adjudicator had erred. In my assessment the
stated grounds of appeal nevertheless sufficiently clearly advanced
the
contention that the adjudicator had erred in law in the following
respects:
1.
By
failing to uphold the appellant’s objection to her jurisdiction
to deal with the application; and
2.
By
making an order that purported to fix the appellants with a liability
that was incompatible or inconsistent with the pertinent
provisions
of the governing legislation, be it the
Sectional Titles Act and/or
the Sectional Titles Schemes Management Act.
[28]
In my judgment both points of law taken by
the appellants are sound.
[29]
No longer being a member of the body
corporate, the first respondent’s only interest in the
re-measurement and possible consequential
readjustment of levies was
a purely financial one. Indeed, he expressly confirmed that his
purpose was to ascertain whether
he might have a claim for a refund.
His interest at the time he made his application was wholly personal,
and not
in the community scheme
.
The first respondent’s application therefore did not concern a
dispute between persons with a material interest in
the scheme.
Accordingly the
dispute
did not conform to the defined meaning of the term in s 1 of the
Act, and in the result it was not cognisable by the Ombud
Service.
The objection to the Service’s jurisdiction should have been
upheld by the ombud, or failing that, by the
adjudicator.
[30]
But even if the Service had enjoyed
jurisdiction, the order made by the adjudicator was beyond his
powers, and legally incompetent.
It purported to oblige the
appellants to adjust the first respondent’s liability in
respect of contributions during the period
of his membership of the
body corporate in accordance with an amended participation quota for
the section he had owned that was
to be registered only long after
the first respondent had disposed of his unit. As should be
evident from the description
of the relevant provisions of the
governing legislation given earlier in this judgment, a unit owner’s
proportionate liability
to pay contributions is statutorily
determined with reference to the
registered
participation quota in respect of the section concerned.
Furthermore, any amendments to the participation quotas consequent
upon the approval and registration of sectional plans of extension in
a scheme become effective only upon the registration of the
plans of
extension, and then only prospectively from the date of
registration. Quite apart from the fact that the order granted
did not comfortably match any of the remedies that the adjudicator
was empowered to grant in terms of s 39,
[40]
it was quite obviously not within his competence to make an order
that would have an effect in conflict with the provisions of
the
legislation governing the community scheme in question.
[31]
In the result the following order is made:
1.
The
appeal in terms of s 57 of the Community Schemes Ombud Act 9 of
2011 is upheld with costs;
2.
The
order made by the adjudicator in terms of s 54 of the said Act
is set aside.
____________________
A.G. BINNS-WARD
Judge of the High Court
____________________
M.B. LANGA
Acting
Judge of the High Court
APPEARANCES
Applicant’s (appellant’s) counsel:
R.D.E. Gordon
Applicant’s (appellant’s) attorneys:
Edward Nathan Sonnenbergs
Cape Town
First Respondent:
In person
Second Respondent:
No appearance
[1]
In terms of s 1 of the Act,
‘
‘‘
association’’
means
any structure that is responsible for the administration of a
community scheme’.
[2]
11 June 2011 and 7 October 2016,
respectively.
[3]
See the long title and section 2.
[4]
Section 1; s.v. ‘
community
scheme
’.
[5]
In terms of s 8 of the
Sectional Titles
Schemes Management Act 8 of 2011.
[6]
Published under GN R1233 in GG 40335
of 7 October 2016.
[7]
It appears that the ‘extensions’
involved the owners of some units in the scheme increasing the
physical dimensions
of their sections and the ‘conversions’
concerned some owners converting the garage space in their units
(which was
levied differently to dwelling space) into dwelling
space.
[8]
That is until the commencement of
the
Sectional Titles
Schemes Management Act 8 of 2011 on 7 October 2016.
[9]
See
s 32(4)
of the
Sectional Titles
Act (the
subsection has since been repealed by
s 20
of Act 8 of
2011).
[10]
Section 32(3) of the Sectional
Titles Act (now
substituted
by s 20 of Act 8 of 2011); see s 11 of
Sectional
Titles Schemes Management Act for the currently applicable
provision. ‘
Participation
quota
’
is defined in
s 1
of the
Sectional Titles Act as
‘
in
relation to a section or the owner of a section, means the
percentage determined in accordance with the provisions of
section
32
(1) or (2) in respect of that section for the purposes referred
to in
section 32
(3), and shown on a sectional plan in accordance
with the provisions of
section 5(3)(g)
’.
An identical definition of the term is given in s 1 of the
Sectional Titles Schemes Management Act.
[11]
‘
Sectional plan
’
is defined in
s 1
of the
Sectional Titles Act as
‘
in
relation to a scheme, means a plan approved by the Surveyor-General—
(a)
which is described as a sectional plan;
(b)
which shows the building or buildings and the land comprised in the
scheme, as divided into two or more sections and common
property;
and
(c)
which complies with the requirements of
section 5
,
and
includes a sectional plan of subdivision, consolidation or extension
as provided for in this Act
’
.
[12]
In terms of
s 5(3)(g)
of the
Sectional Titles Act.
[13
]
In terms of
s 7
of the
Sectional
Titles Act.
[14
]
In terms of
s 12
of the
Sectional Titles Act.
[15
]
See
s 24
of the
Sectional
Titles Act.
>
[16]
In terms of s 47 of the Act.
[17]
In terms of s 48 of the Act.
[18]
See para. [5]
above.
[19]
In terms of s 53 of the Act
.
Despite the fact that the ombud is meant to confirm that the Service
has jurisdiction before a matter is referred to an
adjudicator, it
cannot have been the legislative intention that an adjudicator to
whom an application was referred would be required
to proceed to
make an order in favour of an applicant in the face of a challenge
by the respondent to the adjudicator’s
jurisdiction that the
adjudicator considered to be well-founded.
[20]
In terms of s 54(a) of the Act.
[21]
When s 38(3)(a), s 39
and s 54(1)(a) of the Act are read together, it is clear that
an adjudicator’s power
to grant an applicant positive relief
is limited to the granting of one or more of the orders
particularised in s 39.
[22]
Section 39(1).
[23]
Section 39(2).
[24]
Section 39(3).
[25]
Section 39(4).
[26]
Section 39(5).
[27]
Section 39(6).
[28]
Section 39(7).
[29]
See para. [13]
above.
[30]
Section 39(7)(b) provides:
An
application made in terms of section 38 must include one
or more of the following orders:
…
(7)
In respect of general and other issues—
(b)
any other order proposed by the chief ombud.
[31]
In terms of s 50 of the Act.
[32]
In terms of s 52 of the Act.
[33]
The appellants’ counsel stated
in his heads of argument that the adjudicator had undertaken to
reconstruct a record from
his notes, but that nothing had come of
the undertaking. The first respondent on the other hand stated
that the proceedings
had been recorded and that he had expected that
a transcription would have formed part of the papers before us.
Whatever
the correct factual position, in the absence of a
transcript of the proceedings did not seem to us to be material as
there were
no disputes of fact and the parties’ respective
legal contentions were sufficiently evident from the material that
had
been placed before us.
[34]
Incorrectly described as ‘quantity
surveyors’ in the adjudicator’s statement of reasons.
[35]
The adjudicator’s mention in
the order of a ‘draft sectional plan of consolidation’
appears, in the context
of the discernible facts, to have been an
intended reference to the draft sectional plans of extension that
would be required
to regularise the sectional title development
scheme’s sectional plan and participation quotas.
[36]
In terms of
s 24
of the
Sectional Titles Act.
[37]
The reference to a ‘civil
appeal’ in
s 14
of the
Superior Courts Act is
to an
appeal to the High Court from the judgment or order of a lower
court; not to an appeal of the third type mentioned in
Tikly
v Johannes
1963
(2) SA 588
(T) at the place mentioned later in this paragraph.
The fact that an adjudicator’s order may be registered as an
order of court for enforcement purposes in terms of s 56 of the
Act does not make it an order of such court for the purposes
of an
appeal. The registrar or clerk of court who registers such an
order in terms of s 56 does so on the basis that
the
adjudicator’s order is valid unless and until it is set aside,
and does not signify by its registration that the court
endorses its
correctness. Its registration is an administrative, not a
judicial act. Any scope for doubt in this
regard is excluded
by the language of s 56, which provides for the enforcement of
an adjudicator’s order ‘
as
if it were
’
an order of a court of competent jurisdiction. If the
adjudicator’s order is to be challenged that must be
done in
terms of s 57. Section 57 (which, as mentioned, gives
rise to a different type of appeal to that from the
judgment of a
court) applies irrespective of whether the impugned order has been
registered by a clerk of court or registrar.
[38]
Also reported at [1963] 3 All SA 91
(T).
[39]
We were assured by the appellant’s
counsel from the bar that the adjudicator was aware of the appeal
and that he had advised
the appellant’s legal representatives
that he abided the judgment of the court.
[40]
See note 21
above.