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[2018] ZAWCHC 111
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Hermanus Beach Club Homeowners' Association and Others v Hermanus Beach Club Homeowners' Association and Others (12508/2015) [2018] ZAWCHC 111 (3 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
number: 12508/2015
In
the matter between:
HERMANUS
BEACH CLUB HOMEOWNERS’ ASSOCIATION
First
Applicant
JAN
NICO MAREE
Second Applicant
MARTHINUS
JACOBUS STRUWIG
Third Applicant
v
HERMANUS
BEACH CLUB HOMEOWNERS’ ASSOCIATION
(Association
incorporated under s 21) (Reg no 97/17908/NPC)
First
Respondent
OVERSTRAND
MUNICIPALITY
Second
Respondent
THE
PROVINCIAL MINISTER OF LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFAIRS AND DEVELOPMENT PLANNING
Third Respondent
THE
PREMIER OF THE WESTERN CAPE
Fourth Respondent
THE
REPUBLIC OF SOUTH AFRICA
Fifth Respondent
HERMANUS
BEACH CLUB ERF 1187 BODY CORPORATE
Sixth
Respondent
HERMANUS
BEACH CLUB ERF 1188 BODY CORPORATE
Seventh Respondent
HERMANUS
BEACH CLUB ERF 1189 BODY CORPORATE
Eighth Respondent
HERMANUS
BEACH CLUB ERF 1190 BODY CORPORATE
Ninth Respondent
HERMANUS
BEACH CLUB ERF 11892 BODY CORPORATE
Tenth Respondent
HERMANUS
BEACH CLUB ERF 1194 BODY CORPORATE
Eleventh Respondent
HERMANUS
BEACH CLUB ERF 1196 BODY CORPORATE
Twelfth Respondent
MARY-ANNE
CRONJE
Thirteenth Respondent
PHILIPPUS
CRONJE
Fourteenth Respondent
17th FLOOR
NO. 13 CC
Fifteenth Respondent
HERMANUS
BEACH CLUB HOMEOWNERS ASSOCIATION
NPC:
REG NO. 1997/013952/08
Sixteenth Respondent
Coram
:
Justice J Cloete
Heard
:
21 June 2018
Delivered
:
3 September 2018
JUDGMENT
CLOETE
J
:
Introduction
[1]
This application pertains to a dispute between property owners in a
seaside
development known as the Hermanus Beach Club. It is a
residential development which includes 300 sectional title units (in
7 body
corporate schemes) as well as 24 seafront freehold erven (“the
beach houses”). The development has common property,
facilities
and services.
[2]
More particularly, the first applicant (“HOA”) is the
homeowners
association which was formally established in June 2011
for the beach house owners of which 22 such owners are its members,
including
the second applicant (“Maree”) who owns House
12 and the third applicant (“Struwig”) who owns House 15
through the vehicle of the Phoenix Trust.
[3]
The applicants are at loggerheads with the first respondent (“MHOA”)
which was established in 1997. The applicants contend that they are
not, and cannot be compelled to become, members of the MHOA
and that
therefore the MHOA has no authority to object to or veto plans for
alterations and/or extensions to their properties.
The MHOA maintains
that they are, and that it thus has every right to do so.
[4]
This application was launched 3 years ago in July 2015 at a time when
more extensive relief was sought. Over the subsequent period much of
what the parties agree to be ‘
planning chaos’
in
relation to the development has been put in order and most of the
factual and legal issues have been resolved.
[5]
The only
remaining sticking point for purposes of the current application is
whether or not the applicants are obliged to be members
of the MHOA.
This forms the crux of the relief contained in Part C of the amended
notice of motion
[1]
as well as
the counter-application. The parties agree that Parts A and B of the
amended notice of motion should be granted by consent.
Factual
matrix
[6]
The facts relevant to the issue in dispute, which are now largely
common
cause, are as follows.
[7]
In the early 1990s Stocks and Stocks Ltd (“the developer”)
commenced with the Hermanus Beach Club development. It engaged Macro
Plan Town and Regional Planners (Macro Plan) and the first
layout
plan was approved on 13 March 1995 for the proposed development of
150 single residential units.
[8]
In April 1995 Macro Plan submitted an amended layout plan which
provided
for the development of more affordable units with an
increased density. Due to the increase in density Macro Plan
motivated a ‘
different ownership principle…for
example sectional title or separate title with a homeowners
association’.
The development comprised of common amenities
and services and common property which were to be the responsibility
of the ‘
body corporate’
.
[9]
It was also proposed that the beach house erven would constitute a
‘
group housing scheme where development guidelines will have
to be approved for the units prior to the approval of any building
plans
by the local council… and will thus have to be
represented by a homeowners association which will form part,
together with
all other body corporates, of the larger body corporate
responsible for the entire development’.
Put differently,
the idea was that the body corporates of the various sectional title
schemes, together with the beach house homeowners
association, would
be represented on the umbrella ‘
body corporate’
which the parties accept to have been the conceptual predecessor to
the MHOA.
[10]
After various other steps were taken the local authority approved
building plans and building
commenced. It is now common cause that,
despite the approval of building plans, no site development plan was
ever approved for
the development, including the beach houses, and
that the establishment of a home owners association for the beach
houses was also
not imposed by the local authority as a planning
condition.
[11]
The majority of the beach houses were sold between February 1996 and
April 1997. The inaugural
meeting of the MHOA was held on 24 May
1997. On 22 August 1997 a beach house homeowners association, a
section 21 company which
is cited as the 16th respondent was
registered, but none of the beach house owners ever became members
and it existed on the
side-lines, as it were, without ever being
active. The only minute which the MHOA was able to find of a
purported meeting of this
association is unsigned.
[12]
The MHOA was incorporated, also as a section 21 company, on 23
October 1997. As appears
from its memorandum and articles of
association, its main business is typical of master homeowner’s
associations in developments
and includes aspects such as provision
of security, recreational facilities, general maintenance and upkeep.
[13]
Its main business also includes, in respect of Hermanus Beach Club:
‘
2.1
To act as the supreme authority managing and controlling all
residential housing developments…
2.5
To control, promote and maintain architectural, aesthetical, and
environmental standards…’
[14]
The membership clause in its articles of association provides that
each of the body corporates
and the ‘
Cluster Association’
shall be members of the MHOA. The Cluster Association is defined as
‘
the Home Owners Association established or to be
established in respect of the Cluster Portions’.
Those
portions are the beach houses. The Cluster Association, once
established, was entitled to nominate two directors to serve
on the
board of the MHOA, as was each body corporate.
[15]
The same clause provides that cluster owners shall be members of the
MHOA until such time
as the Cluster Association is established and
admitted as a member of the MHOA.
[16]
The articles also authorise the MHOA to exercise certain powers in
the furtherance of its
business to control, promote and maintain
architectural, aesthetic and environmental standards. Its directors
are permitted to
‘
make rules providing guidelines’
for architectural design, subject to the memorandum and articles and
any restriction imposed or direction given at a general meeting.
If
such rules are made at a general meeting, or by the directors and
thereafter ratified at the next general meeting, they become
binding
on all members and are thus enforceable.
[17]
Some of the beach houses have, over the years, been severely damaged
by sea or storm surges.
Six are double-storey and 18 are
single-storey. Another surge occurred in 2008 which caused extensive
damage mostly to single-storey
houses and jeopardised the safety of
their residents who could not take refuge on an upper level.
[18]
Up until the end of 2008 building plans were approved for the
enclosure of balconies in
sectional title units, extensions on ground
floor level for single-storey beach houses, and extensions on
first-storey level for
two of the double-storey beach houses. These
were permitted with the approval of the MHOA as well as the local
authority.
[19]
During 2009 a dispute arose when some owners of single-storey beach
houses wished to raise
their homes by adding a first floor, amongst
others for safety purposes. Some property owners to their rear
claimed that the ‘
development rights prohibited first storey
extensions’
. The local authority was approached and it
advised the MHOA to prepare and submit architectural guidelines to
‘
address development rights to control development and
architectural style within the complex’.
These were to
include guidelines for the entire development and not only the beach
houses.
[20]
Mr Andrew Greeff, an architect, was appointed for this purpose. He
compiled a first set
of development rules for the MHOA dated 1 March
2010 which in essence permit no external extensions including that
‘
existing roof height is maximum height’.
The
applicants regard this set of rules as oppressive and selfish,
claiming that it effectively condemns the beach houses to the
mercy
of storm surges. Greeff thereafter compiled a second set of
development rules for the HOA which, it contends, are far more
reasonable, but were not acceptable to certain other property owners
in the development. On 18 October 2011 the local authority’s
Portfolio Committee: Infrastructure and Planning, concluded that:
‘
There is a
major debate within the complex about the legality of the
[MHOA].
Various opinions have been provided to the Municipality in this
regard by some freehold erven owners and also the
[MHOA].
This
issue can be debated, but finality can only be reached if the issue
is resolved in-house or by a decision of Court. If the
Municipality
supports the viewpoint of one group in the debate, it will be
foreseen to choose such group’s “legal opinion”.
In
the interest of all property owners within the complex it is
therefore the opinion that the in-house problems and functions
of the
[MHOA]
and other proposed home owners associations must be
resolved before any applications for additional rights can be
considered.’
[21]
As I understand it, since then the local authority has not been
prepared to consider any
plans submitted by owners until there is a
single, agreed development plan for the entire Hermanus Beach Club in
place. Maree has
been trying to get the MHOA to agree to his proposed
extensions and alterations since 2009, and Struwig since 2013.
[22]
In terms of clause 3.2.3 of the MHOA’s memorandum the beach
house owners cumulatively
constitute one member for voting purposes
or put differently, each owner has a 1/24th share of the
membership of one member
of the MHOA. This is irrespective of whether
they belong to a homeowners association or not.
[23]
Each of the 7 body corporates which represent the sectional title
holders are members in
their own right. On each occasion when the
beach house owners put their proposals for extension and/or
alteration on the table
they are outvoted.
[24]
Moreover the MHOA has refused to accept the constitution of the HOA
since it was established
in June 2011, as a consequence of which it
has not become a member of the MHOA.
Further
consequences of planning chaos
[25]
For purposes of this application the parties accept that the deeds of
sale for the initial
purchasers of the beach houses all contained a
clause 28 in which the purchaser agreed that he would automatically
become a member
of the MHOA (still to be established) upon
registration of the property into his name; that this condition would
be registered
against the title deed so as to bind him and his
successors in title; and that he would not, without first obtaining
the written
consent of the MHOA, effect any exterior alterations or
extensions to the house or other buildings erected on the property.
[26]
One of the first beach house owners was a Mrs Elizabeth Oelofse who
sold to Maree in 2008.
Maree’s deed of sale did not contain a
clause 28 or its equivalent and there is no condition imposed in
respect thereof in
his title deed.
[27]
Maree provided a copy of the title deed of House 2, owned by the
Lavaline Trust, which
contains notarial deed of servitude no
K1014/97. The servitutal condition is peculiarly worded. It reads as
follows:
‘
The property
shall not be transferred into the name of any person, close
corporation, company or trust, unless it is proved to the
Registrar
of Deeds having jurisdiction in respect of the property, by way of a
clearance certificate issued by the Hermanus Beach
Club Home Owner’s
Association that:
(a)
The transferee of the property has bound himself to the terms and
conditions that will apply to the membership of the Hermanus Beach
Club Home Owner’s Association.
(b)
The Transferee is a member of the Hermanus Beach Club Home Owners
Association or will on registration of transfer of the property
become member of the Home Owner’s Association.
(c)
That all money due by the transferor to the Home Owner’s
Association and Hermanus Beach Club Master’s Home Owner’s
Association has been paid and all obligations and rules and
regulations of the Hermanus Beach Club Master’s Home Owner’s
Association has been observed.’
[28]
Maree also
provided a schedule
[2]
setting
out that of the 24 beach houses, 12 owners are bound by the same
servitude as the Lavaline Trust and the other 12 are not
bound by any
servitude at all.
[29]
Minutes
of meetings produced by the MHOA reflect that from 1997 up until the
15th annual general meeting of the MHOA
held on 29 October 2011
(i.e. some 24 years),
[3]
owners
of the beach houses were elected to the board of the MHOA in their
‘
representative
capacities’
of a homeowners association or the beach houses, and participated on
the board on that basis. Furthermore, various owners of the
beach
houses also sat on the MHOA’s building committee and, save for
a brief period, the beach house owners paid, and continue
to pay,
levies to the MHOA.
[30]
After
the HOA was established in 2011 the beach house owners did not stop
their participation in the MHOA.
[4]
They did so as individuals and/or representatives of ‘
the
HOA’
or ‘
beach
houses’
.
It was only after this application was launched in 2015 that the
owners ceased attending annual general meetings of the MHOA and
participating in its board meetings (save for a Mrs Cronje, a
co-owner of House 18, who attended the 2016 annual general meeting).
[31]
The crux of the applicants’ complaint is set out in the
founding affidavit
of Ms Caron Perkins, the chairperson of the HOA,
as follows:
‘
43.
Many of the owners of beach front properties bought their properties
well before the
[MHOA]
came into being. It is true that we all
realised that we were buying into a complex which had security and
was maintained by a central
organisation. We realised that there
would be levies to be paid for such services, but we never intended
to subject ourselves to
an unreasonable “supreme authority”
which could dictate fundamental and very important issues to us
against our will.
This was not part of the bargain we made…’
[32]
Perkins is
one of the beach house owners (House 4) who is not bound by the
servitude. As previously stated, nor is Maree, and neither
is
Struwig.
[5]
Discussion
[33]
It is convenient to first deal with the argument advanced on behalf
of the MHOA.
[34]
The latter acknowledges that the wording of the registered servitudes
does not ‘
neatly accord’
with the development
scheme and structure of the MHOA as it was established and developed.
It is argued however that a tacit contract
exists in terms of which
the beach house owners agreed to become members of the MHOA because
of the following.
[35]
First, it was implicit in the initial approvals granted by the local
authority that the
development would necessarily require a body such
as the MHOA to govern and regulate common property, even though this
was not
imposed as a planning condition, and nor was compulsory
membership thereof by owners, whether individually or as represented.
[36]
Second, the initial purchasers all accepted, in concluding their
deeds of sale, that they
would automatically become members of the
MHOA once it was established. It was part of their bargain,
irrespective of whether or
not the envisaged servitudes were
subsequently ‘
imperfectly registered’
or not
registered at all. Subsequent purchasers, even absent a clause 28 or
its equivalent, could have been under no illusion about
what they
were buying into, given the physical layout of the development in
terms of common property and common facilities, in
respect of which
there would logically be both rights and obligations.
[37]
Third, the wording of the servitudes, properly construed, can only
mean that the owners
concerned are bound to be members of the MHOA.
Although it is conceded that there is no express contractual link
contained therein,
it is submitted that the link is established
between the owners and the MHOA because the servitude provides that:
(a) the owners
must become members of the homeowners association; (b)
for transfer to a successor in title, the homeowners association must
certify
that the transferor’s levies are up to date and that he
has observed the obligations, rules and regulations of the MHOA; and
(c) the articles of the MHOA pertaining to membership support such an
interpretation.
[38]
Fourth, the ongoing participation, for the most part, of beach house
owners in the MHOA,
including payment of levies, can only be
described as assent by conduct or inferred consent. Moreover they
must have been aware
of their obligation because that is the nature
of the investment that they made.
[39]
In short therefore the MHOA argues that the conclusion of the alleged
tacit contract must
be inferred. This means that its terms are also
subject to the same process of reasoning. I have fundamental
difficulty with this
approach for the following reasons.
[40]
The argument of the MHOA of necessity means that each and every
current beach house owner
tacitly contracted on exactly the same
terms, despite differing: (a) deeds of sale; (b) title deeds; and (c)
subsequent patterns
of conduct. While the argument is based on four
broad “legs” it is not possible to discern what precisely
those terms
are alleged to have been. Although the contention is that
the original purchasers of the beach houses contracted with the
developer,
the MHOA does not explain who subsequent owners, such as
Maree and Struwig, contracted with.
[41]
Christie’s
Law
of Contract in South Africa
sets out the requirements for a finding that there is a tacit
contract as follows:
[6]
‘
No
similar reservation need be expressed about the requirements laid
down in Wessels, which have frequently been quoted with approval.
“
Before a Court
can find that there has been a tacit contract, it must be satisfied
that the following requisites are present:
(1)
The person whom it is proposed to fix with a tacit contract must
be fully aware of all the circumstances connected with the
transaction.
(2)
The act must be unequivocal.
(3)
The tacit contract must not extend to more than the parties
contemplated.
(4)
A tacit contract will be interpreted strictly not extensively,
because a contract must be interpreted in favour of the person on
whom it is sought to lay an obligation.” ’
[42]
The trite
test for inferential reasoning set out in
R
v Blom
[7]
is that: (a) the inference sought to be drawn must be consistent with
all the proven facts, and if it is not the inference cannot
be drawn;
and (b) the proven facts should be such that they exclude every
reasonable inference from them save the one sought to
be drawn.
[43]
There is no persuasive evidence that the initial homeowners
association (the 16th respondent)
represented the beach house
owners on the MHOA (the latter does not refute the allegation that
none of the owners were ever members).
It may be that some beach
house owners were under the mistaken impression that they represented
other beach house owners in the
business of the MHOA because they
purported to act on behalf of the 16th respondent, but this does
not assist the MHOA.
[44]
The MHOA has not accepted the HOA as a member. The default position
contained in the MHOA’s
articles is that all 24 beach house
owners cumulatively constitute one member. While there may be some
argument to be made that
the initial beach house purchasers were
contractually bound, in terms of their deeds of sale, to become MHOA
members and thus observe
its rules, those deeds of sale were
concluded between them and the developers and not the MHOA. Moreover,
that contractual term
was never carried over into these purchasers’
title deeds.
[45]
It is common cause that the majority of the beach house properties
were initially sold
in 1996 and 1997. The schedule produced by Maree
reflects that of the current 24 owners at least 5, including Maree
and Struwig,
appear to be second purchasers. Of these only one, a Dr
Shah, who is the owner of House 6, has a servitude registered against
the
title deed to his property. Yet the MHOA contends for identical –
but not clearly identified – tacit contractual terms
for all 24
beach house owners, and in effect asks for an order that all of them
are therefore members of the MHOA.
[46]
Moreover none of the servitudes that were registered reflect that
those owners would automatically
become members of the MHOA. They
were only obliged to become members of a homeowners association which
in turn would represent
them on the MHOA. That never happened. I
cannot see how, in these circumstances, subsequent conduct of one or
other beach house
owner in relation to the MHOA can be said to
indicate implied consent on the part of any other. To my mind, each
owner’s
conduct has to be considered separately in order to
determine whether that owner’s conduct is indicative or
persuasive of
implied consent. The MHOA has fallen short of producing
enough evidence in this regard.
[47]
The fact that levies have been paid by the beach house owners over
the years is not, of
its own, sufficient to prove an unequivocal
intention on the part of each beach house owner that he considered
himself to be a
member of the MHOA and bound by its rules. Of course
the MHOA is correct in asserting that anyone driving into the
development
must have understood that there was some sort of control.
But that takes it no further.
[48]
Maree and
Struwig assert that there are no restrictive title deed conditions,
registered servitutal rights or a homeowners association
with a
constitution which regulates height, nor a site development plan,
which limit their rights. In this regard they rely on
the full bench
decision in
Gerstle
v City of Cape Town
[8]
where it was held that:
‘
[29]
Furthermore, as Mr
Rosenberg
, who appeared together with Ms
O’Sullivan
on behalf of the first respondent, observed,
while the appellants sought to rely on “two sacrosanct”
principles which
they contended informed the basis of the
development, namely access to light and view as well to the beach,
the developers had
not imposed any legal limitations on the future
development of the property in relation to the height of the
first-row houses.
Had the developers wished to restrict the building
which could be undertaken in respect of the front row in order to
protect the
light and the view of the back row, there were a number
of legal options open to them, including the imposition of a
servitude,
restrictions on the title deeds, a specific site
development plan (of which there was none) which could have imposed a
land use
condition in terms of s 42 of LUPO, or the developers could
have registered a homeowners association. Whatever intentions the
developers
might have professed, these were never translated into
legal obligations.’
[49]
When the factual context is taken into account, it is my view that
their reliance is well
placed. Insofar as the HOA is concerned, part
of the relief sought in the counter-application is that the HOA is
obliged to become
a member of the MHOA ‘
on such terms as
comply with the memorandum of incorporation and articles of
association’
of the MHOA. To my mind, however, this is
effectively asking the court to make a contract for the parties which
is, of course,
impermissible.
[50]
In any event, when the MHOA was incorporated, the Companies Act 61 of
1973 was in force.
Section 103 thereof provides as follows:
‘
103
Who are members of a company
(1)
The subscribers of the memorandum of a company shall be deemed to
have agreed to become members of a company upon its incorporation,
and shall forthwith be entered as members in its register of members.
(2)
Every other person who agrees to become a member of a company and
whose name is entered in its register of members, shall be a member
of the company.’
[51]
Maree and Struwig maintain that their names were never entered in the
MHOA’s register
of members. It would have been a simple matter
for the MHOA to produce its register to refute this allegation. This
was not done.
[52]
As far as the new
Companies Act 71 of 2008
is concerned, the
applicants point out that the MHOA’s memorandum of association
is incompatible therewith and that no steps
have been taken by the
MHOA to render itself compliant. As previously stated, the current
voting regime of the MHOA provides that
all of the beach house
owners, cumulatively, only have one vote, whereas
s 1(7)
of Schedule
1 of the 2008 Act stipulates that ‘
each voting member of a
non-profit company has at least one vote’.
In addition, the
articles of the MHOA demand compulsory membership, while s 4(2)(b) of
the same Schedule stipulates that the memorandum
of incorporation of
a non-profit company providing for membership ‘
must not
presume the membership of any person, regard a person to be a member,
or provide for the automatic or ex officio membership
of any person’
on any basis other than lifetime membership awarded to a person on
certain conditions. Although the MHOA argues that no reliance
is
placed on compulsory membership, given my findings, to my mind the
effect of the orders which it seeks amounts to this. Section
4(2) of
Schedule 5 of the 2008 Act gave non-profit companies such as the MHOA
two years to file an amendment to its memorandum
of incorporation to
bring it in harmony with the Act. The MHOA does not dispute that this
has not occurred.
[53]
In
Walele
v City of Cape Town and Others
[9]
the Constitutional Court held, in the context of a review
application, that a neighbour has no legitimate expectation to be
heard
prior to the approval of building plans. O’Regan ADCJ
stated:
‘
[31] The
purpose of zoning schemes and the Building Standards Act was aptly
described by Lewis AJ in
Odendaal v Eastern Metropolitan Local
Council:
(B)oth the Act and the
[town-planning] Scheme are legislative instruments for ensuring the
harmonious, safe and efficient development
of urban areas. …Local
authorities are given considerable powers under both Act and Scheme.
Onerous duties are imposed on
them by both instruments. The essential
purpose of the powers afforded and the duties imposed is to ensure
that the objectives
of the legislative instruments are achieved; that
there is a balance of interests within a geographical community. The
local authorities
are in effect the guardians of the community
interest. They are entrusted with ensuring that areas are developed
in as efficient,
safe and aesthetically pleasing a way as possible.
They are required to safeguard the interests of property owners in
the areas
of their jurisdiction. That is why the powers and rights of
owners of immovable property are restricted. Power over one’s
property has never, under our legal system, been unfettered. The
rights of an owner of land have always been limited by the common
law
in the interests of neighbours. But the rapid urbanization of
countries worldwide and the inevitable need for regulation that
has
accompanied it has had the effect of restricting full dominium even
further than the common law ever did.’
[54]
Having regard to my findings as well as what was held in
Walele
I am persuaded that the relief sought by Maree and Struwig is
competent.
Costs
[55]
Given the history of this litigation and the planning chaos of the
development, it is my
view that the appropriate costs order is the
one that follows.
[56]
In the result the following order is made:
1.
It is declared that the Overstrand Scheme Regulations
promulgated in the Province of the Western Cape, Provincial Gazette
Extraordinary
number 7203 on 29 November 2013 which came into effect
on 1 January 2014, apply to the development in the Overstrand
Municipality
known as Hermanus Beach Club;
2.
It is declared that there is no legally binding site
development plan applicable to the properties owned by the second and
third
applicants in the development known as Hermanus Beach Club;
3.
It is declared that the first respondent has no right to
object to, or veto, the building plans of the second and third
applicants
prior to the submission of such plans to the second
respondent;
4.
The first respondent’s counter-application is dismissed;
5.
The first respondent shall pay the costs incurred by the
first, second and third applicants in respect of the drafting,
service
and filing of heads of argument, preparation for the hearing
(including the hearing of the counter-application) as well as the
costs incurred in the hearing of both the main and
counter-applications, on the scale as between party and party, and
including
the costs of two counsel; and
6.
Save as aforesaid, there shall be no order as to costs.
J
I CLOETE
[1]
It is dated 6 September 2017 and was further amended during argument
by the insertion of ‘
or
veto
’
after the words ‘
object
to
’
in prayer 3.
[2]
This
must be read together with paras 14 and 19 of Maree’s
affidavit and para 213 of the answering affidavit of Mr
Victor
Faria, the chairperson of the MHOA.
[3]
No minute was produced for 2001.
[4]
The details are set out at paras 110 to 113 of Faria’s
affidavit i.e. the answering affidavit of the MHOA.
[5]
According to Maree’s schedule.
[6]
7th Ed, p102 and the authorities referred to at fn 616.
[7]
1939 AD 188.
[8]
2017
(1) SA 11 (WCC).
[9]
[2008] ZACC 11
;
2008 (6) SA 129
(CC).