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[2021] ZAWCHC 274
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Greef v Body Corporate Merriman Court and Others (12716/2020) [2021] ZAWCHC 274 (15 September 2021)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
no: 12716/2020
In
the matter between:
JOHANNES
WESSEL GREEF
Applicant
and
BODY
CORPORATE MERRIMAN COURT
First Respondent
CLAIRE
ELIZABETH
BLAHA
Second Respondent
ANTONIO
ROSARIO SCALABRINO
Third Respondent
CHARLES
ERIC LEONG SON
Fourth Respondent
WENDY-LEE
DE
GOEDE
Fifth Respondent
ISTVAN
GYONGY
Sixth Respondent
Delivered
electronically this 15th day of September 2021 by email to the
parties.
JUDGMENT
NDITA;
J
Introduction
[1]
In this application, the applicant seeks an order:
(a)
directing the respondents to consider his request for approval of his
plans for construction by way
of the extension of section 1 of the
Merriman Court Sectional Title Scheme.
(b)
declaring that he is in any event permitted to implement his plans
for construction by way of extension
of section1 of the scheme.
(c)
directing that the first, second, fourth, fifth and sixth respondents
shall be jointly and severally
liable for the costs of this
application, the one paying the other to be absolved, save that
insofar as the costs arising from
the opposition are met or incurred
by the first respondent, such costs shall not be recoverable from the
applicant and the third
respondent.
The
parties
[2]
The applicant is an adult male, residing at section1 Merriman Court,
Merriman Road,
Green Point.
[3]
The first respondent is The Body Corporate of Merriman Court (“the
body corporate”)
with sectional plan No SS87/1986, established
in terms of the Sectional Titles Act 66 of 1971 (Sectional Titles
Act’) and
is responsible in terms of the Sectional Titles
Schemes Management Act 8 of 2011 (“The Schemes Management Act”)
for
the enforcement of rules relating to the control, administration
and management of Merriman Court Sectional Title Scheme (“Scheme”).
[4]
The second respondent, Claire Elizabeth Blaha, is an owner of section
3 and 6, Merriman
Court, Green Point. The third respondent is Antonio
Rosario Scalabrino, the owner of section 7 and 10, Merriman Court. He
resides
at 27B, Merriman Road, Green Point. Charles Eric Leong Son is
the fourth respondent. He owns section 9, Merriman Court and is a
trustee of the Scheme, care of L N Property Management, 91 Kildare
Road, Newlands.
[5]
The fifth respondent is Wendy-Lee De Goede. She is a trustee of the
body corporate
of Merriman Court. Istvan Gyongy is the sixth
respondent. He is the second respondent’s husband and also a
trustee of the
body corporate of Merriman Court.
Factual
Background
[6]
The factual background underpinning this application as gleaned from
the founding
affidavit deposed to by the applicant, Johannes Wessel
Greef, may be summarised thus: Merriman Court is a small block of
flats
situated on Merriman Road, Green Point Merriman Road runs above
Ocean View Drive of the slopes of signal hill, close to the City
of
Cape Town. The applicant explains that Merriman Court was built by
the father of the third respondent in 1950 and entails two
buildings.
The first building comprises of a six single level apartment block
built on four storeys. A separate building comprises
of one garage
for three cars, domestic worker’s quarters and two store rooms.
It is common cause that the third respondent
inherited the block of
flats from his father, and in 1986, he converted Merriman Court into
a sectional title scheme. The applicant
further states that over
time, different owners of sections in the block expanded their
sections into the common property. Upper
sections expanded into the
roof, other sections expanded to incorporate common-property lobbies
or adjacent voids beneath the building.
The applicant is the owner of
section 1 in the sectional title scheme pursuant to him purchasing it
on 4 September 2006. He states
that one of the reasons for which he
purchased the section is that it enjoyed exclusive use of the garden
area, and there was a
possibility to expand the section into the
garden area. His unit is the only unit on the lowest storey.
[7]
According to the applicant, at a meeting held in 2007, he applied to
the body corporate
to build a garage and permission was granted. At a
subsequent meeting held by the body corporate on 19 February 2013,
which was
attended by his wife, he, through her, requested that they
be granted the right to extend section 1 into the garden area to
build
a second bedroom and bathroom, and make changes to their
kitchen. He further states that his wife also indicated at that
meeting
that they intended, at a later stage to extend the section on
both the garden area into the eastern and western side. According
to
the applicant, the body corporate unanimously approved the request,
subject to the approval of the building plans. In addition,
it placed
no limit on the extension permitted to section 1. The applicant avers
that over time, various extensions and changes
were also effected by
various owners of other sections.
[8]
The applicant avers that following a meeting held during February
2013, the third
respondent consulted with Paddocks Sectional Title
Consultants seeking advice on how to regularise the remaining
approved extensions
and additions to the various sections which had
not been registered. According to the applicant at that meeting, the
third respondent
confirmed that all sections had been extended and
changed, albeit not registered. The applicant further avers that at
an annual
general meeting held on 23 April 2014, the third respondent
presented a proposal prepared by Paddocks Sectional Title
Consultants.
The body corporate resolved to approve and accept the
proposal. According to the applicant, at the 2014 annual general
meeting,
the body corporate again confirmed his right to extend
section 1 into the garden area and erect a garage as per previous
resolutions.
The applicant emphasises that at the 2013 annual general
meeting, his request for extensions was unanimously approved. The
minutes
of the annual general meeting held on 23 April 2014, reflect
that the minutes of the annual general meeting held on 19 February
2013, were accepted and adopted.
[9]
The applicant explains that in 2014 the scheme was resurveyed by
Stern & Ekermans
Land Surveyors. They prepared the diagrams
necessary to regularise the remaining extensions and additions to the
various sections,
so as to facilitate registration in the deeds
office. On 24 June 2016 STBB Attorneys duly registered the extensions
in the Deeds
Office.
The 2017 plans
[10]
The record reflects that on 26 April 2017 the applicant submitted
plans to the body corporate
for the extension of section 1 into the
garden area. He states that he did so in the exercise of his rights
first granted in 2013.
On 27 April 2017 the body corporate met and
considered the plans. All of the members of the body corporate
attended the meeting.
The minutes thereof record that:
“
Johan circulated
architectural drawings outlining extensions to Unit1. Body Corporate
formally accepts plan.”
They also reflect that
the body corporate resolved that the third respondent, “
as
the chairman, will sign any documentation necessary”
to
give effect to the accepted plan. The recordal of the minutes also
shows that they were recorded as being minutes of an “
informal
meeting held due to the immediate resignation of the Managing Agent”
the previous evening at 22:00. The applicant explains that the reason
for the abrupt resignation was that the managing agent fell
out with
the fourth respondent. According to the applicant, all members of the
body corporate however, attended the meeting and
no member objected
to any procedure, and the decisions made in the meeting are binding.
Furthermore, because the scheme comprises
of only six owners, all
owners were trustees and conducted the scheme upon the basis that all
owners would be actively involved
in management and decisions
concerning the scheme. He states that sometimes matters were
informally attended to, and regularised
later. But all owners were
kept informed and usually attended meetings.
The
2019 PLANS
[11]
It is not in dispute that notwithstanding the fact that the
applicant’s plans, according
to his versions, had been approved
in 2017, he did not implement them. Instead, he instructed an
architect to prepare revised plans
in 2019 because of the imminent
birth of his son. He states that his intention was for the revised
plans not to impose any greater
burdens upon the scheme, but to be
more aesthetically pleasing, and better cater for his family’s
requirements. According
to the applicant, he did not anticipate that
the body corporate could or would object to the revised plans as the
revisions are
mainly internal and do not affect members of the body
corporate and as such, should not overly concern them. The revised
plans
were prepared for presentation to the 2019 annual general
meeting AGM, which was to be held on 5 July 2019.
[12]
In response to the request that the 2019 annual general meeting to
consider his revised plans,
the applicant avers that the fourth
respondent, asked that the meeting consider his plans be separated
from the AGM, and he agreed.
The managing agents therefore prepared a
notice to convene a Special General Meeting on 26 July 2019 at 14:00
to consider the revised
plans. The applicant avers that after the
managing agents had circulated the notice, in order to try facilitate
the meeting on
26 July 2019, he and his architect answered enquiries
from the fourth and fifth respondents. He says that he made
arrangements
for his architect to be present at the meeting so that
he could respond to any concerns that might be raised. According to
the
applicant, the fourth and fifth respondents adopted the position
that his request was irregular and could not be granted because
section 1 sought to exercise greater rights of extension than
had been exercised by other sections. To this end, the fifth
respondent wrote thus:
“
I reject your
application. It is illegal. I will not vote on something illegal. In
addition to my flight and accommodation costs,
you will need to
consider my per hour costs. I am happy to meet at your cost to tell
you what I am telling you now. Your choice.”
[13]
This was followed by an acrimonious exchange of correspondence
between the applicant and the
fourth and fifth respondents. The
applicant states that he placed on record that the meeting had been
correctly called and would
proceed - and should there not be a
quorum, it would stand over to the following week, as is procedure in
terms of the Schemes
Management Act and rules. In response to the
claims of illegality of his plans, the applicant avers that he
explained to the fourth
and fifth respondents that the City would not
consider granting plan approval unless the plan first is approved by
the body corporate.
For this reason, so contends the applicant, the
body corporate cannot refuse to approve a plan because it has not
been approved
by the City, let alone because a plan may not be
approved by the City. This, according to the applicant is so because
the body
corporate approval is a first step.
[14]
On 25 July 2019 the third respondent sent an email to the managing
agents wherein he set out
the history of the expansions in the block
for new owners. It reads thus:
“
Dear Justine
According to the flood of
emails going hither and thither there seems to be much confusion as
to the status of Merriman Court
Perhaps, the historical
elucidation might be of some value.
The block was built in
the mid 50’ s by my father who incidentally motivated the
construction of Merriman Road, Sectional
Titled the building in the
mid 80’s. The main building was divided into six sections.
The out-building,
containing 3 garages and rooms below, was designated exclusive common
property.
The only other exclusive
use common property was the front garden area assigned to Section 1.
I sold Sections 1, 3, 4,
5, 6 and exclusive use right of 2 garages.
In the mid 90’s M D
du Plessis the owner of section 5 applied for and was given
permission to extend his unit into the roof
space above,
In circa 97 he applied
for and was given permission to build a garage on common property
adjacent to the garage block.
This is also involved
changing the entrance stairway.
In 2007, the owner of
Section 1 was given the right to build the garage in the remaining
street frontage.
This was recorded in the
minutes of 10/19/ 2007 and subsequently mentioned in the minute of
24
th
March 2009 and 23
rd
April 2014 (attached).
In 2007, the owner of
Section 2 applied for and was given permission to renovate Section 2
and the rooms under the garage block.
In 2013, the owner of
Sections 4 & 5 was given permission to consolidate the 2 sections
and subsequently renovate them.
He was also given
permission to incorporate the escape stair to Section 6, to join the
2 sections on the condition that he would
provide an alternate.
By this stage all the
sections with the exception of section 1 incorporated pieces of
common property.
It was decided that the
block should be surveyed. I consulted Paddocks Attorneys who
specialise in Sectional Title.
And on their advice,
produced a proposal, which was accepted by the body corporate on the
meeting of 23
rd
April 2014.
Also at that meeting, the
owner of Section 1 was given the right to extend his section on the
exclusive use of common property designate
to his section.
The legal work was done
by Peter Arnot of STBB and the survey by Stern & Ekermans,
Special resolutions were done for sections
with the exception of
Section 1 as survey could only be done once they had completed the
building work.
All the building work and
renovations were approved by the City Council.
Hopefully this may shed
some light on the present situation.”
The
managing agents circulated the above email to all members of the body
corporate on the morning of 26 July 2019.
Meetings of 26 JULY
2019 and 2 August 2019
[15]
The applicant states that the Special General Meeting which was
convened on 26 July 2019, was
attended only by himself and the third
respondent. It was inquorate, and therefore stood over by one week.
On 29 July 2019, the
managing agents sent a further notice
reconvening the Special General Meeting on 2 August 2019. In
attendance, were, once again,
the applicant, the third respondent,
and the applicant’s architect. A representative of the managing
agent chaired the meeting.
The third respondent signed off the plans
upon the following basis:
“
1. That there will
be no substantial difference between these plans and the Council
Submission Drawings
2. That the Council
Submission Drawings will be approved by City of Cape Town Building
Plans Dept.
3. That an adequate
temporary Access Entrance Stairway be provided during construction
4. That the temporary
stairway will also provide access tothe bin storage area;
5. That the headroom
between the stairs and the soffit of the garage slab be acceptable;
6. That the dimension of
the stair risers and treads be acceptable, which acceptance may not
be unreasonably be withheld;
7. That the colour of the
roofs of Section 1 extension be acceptable to the owners of Section 3
& Section 9 which acceptance
may not be unreasonably be withheld.
On this point a further discussion ensued and the owner will look for
alternative roof options,
i.e. roof with a rockery and garden which
will be aesthetically pleasing.
8. That the roof concrete
slab on the western side, will be available to the owner of Section 3
in order for her to extend her garden.
The owner of Section 1
confirmed that the owner of Section three will be receiving
approximately
16 square meters to use for her garden area.”
Events subsequent to
the meeting of 2 August 2019.
[16]
The applicant states that the second, fourth and fifth respondents
objected to the postponed
meeting and resolution taken. On 30 August
2019 he received a copy of a letter written to the body corporate by
attorneys STBB,
acting on behalf of the second and fourth
respondents. The letter states that the resolution taken on 2 August
2019 was invalid
and must be reconsidered through a special general
meeting. The relevant portion reads as follows:
“
It is apparent
that this meeting was inquorate and as such did not proceed.
Whereafter I am instructed that the owners, whom I represent,
were
belatedly informed of certain amended building plans which were now
being proffered by the Applicant, Mr Greef. As a result,
thereof,
communications were exchanged between the parties including the
management agent in terms whereof the representation was
made that a
further meeting would be called on 30-days notice in order to permit
the appropriate considerations of the proposed
plans (as instead of
the 2
nd
August). In the
circumstances, my clients were not aware, or privy to, the fact that
it was intended that the special general meeting
which had ostensibly
been declared inquorate would in fact continue on 2
nd
August 2019 some days on
from the previous meeting.
Unbeknownst to our
clients, the special meeting in fact proceeded, a fact that they only
became aware of on the 23
rd
August 2019 when the managing
agent provided our client with Minutes of the Meeting.
As such, our clients deny
that the body corporate was in a position to appropriately hold the
special general meeting on 2
nd
August 2019. Moreover, and
insofar as the meeting was properly convened (which is denied) then
the purported Resolution adopted
is irregular and falls to be set
aside.”
[17]
According to the applicant, although he disagreed with contents of
the above letter, he, on 2
October 2019 offered to convene another
Special General Meeting – even though he, according to his
version, had obtained
valid approval for his 2019 plans, and enjoyed
rights in terms of the approved 2017 plans. He states that he also
suggested that
all the parties have their architects and/or
professionals present at the meeting. On 14 October 2019 the managing
agent circulated
a notice for a new Special General Meeting, to be
held on 19 October 2019. On 17 October 2019 Minnie & Du Preez
Inc, attorneys
for the second and fourth respondents wrote a letter
wherein they advised that they would be attending the Special General
Meeting
and requested copies of the relevant resolutions as well as
sectional title plans. On 18 October 2019, the applicant’s
attorneys
responded to the letter and set out the history of his (the
applicant’s) rights and the correct position. Members of the
Body Corporate permitted their legal representatives to attend the
meeting.
Meeting of 19 October
2019
[18]
It is common cause that the Special General Meeting was preceded by
the annual general meeting.
The applicant explains that since 1986
the affairs of the Body Corporate had been conducted upon the basis
that all owners are
trustees and participate in its affairs.
According to the applicant, at the Special General Meeting, the
fourth respondent, the
fifth respondent (representing one of the
second respondent’s units) and the sixth respondent
(representing the second respondent’s
units) insisted that only
three trustees be elected. The applicant and the third respondent
were nominated as trustees, but the
fourth, fifth and sixth
respondents vote against them and instead, voted themselves in as
trustees.
[19]
The Special General Meeting commenced with the third respondent
briefing all the members about
the history of the scheme. The
applicant states that this was followed by an extensive discussion
which ultimately led to the fourth
and fifth respondents refusing to
permit a vote on his plans that he had requested. Ultimately, the
meeting was adjourned without
any decision on the applicant’s
plans.
[20]
The applicant avers that on 28 October 2019, he received a copy of a
document which purported
to be minutes of the Special General
Meeting. According to him, the document was inaccurate in that it
showed that a vote was taken,
whereas that was not the case as the
fourth and fifth respondents had not permitted it. The minutes of the
aforesaid meeting reflect
that:
“
70.17 percent of
members present at the meeting objected to the plans for the
extension to be done on the exclusive use area as
well as the plan
for the erection of the said garage.”
[21]
The applicant says that this prompted him on 12 February 2020, to
write to the trustees of the
body corporate requesting an amendment
of the minutes, in line with the notes recorded by his attorney
during the meeting. The
recording he relies upon reads as follows:
“
Mr Lombaard said
that the parties need to understand that there is a difference in
that previous owners received common property
from the body corporate
as opposed to in the current instance Mr Greeff is extending on to
exclusive use area which has already
been allocated to him and
therein lies the difference.
Mr Greeff went into the
history of how he obtained the right to extend the garage regarding
contributing towards the cost of the
new security gate and the body
corporate agreed that he can accordingly build a garage in due
course.
Mr Lombard said that
clearly there will be no agreement and that there should simply a
vote.
Legal representative for
units 3 and 6 said that they refused to vote on anything.
No vote was taken despite
request.”
[22]
The trustees did not respond to his request. In the absence of a
response, the applicant’s
attorneys on 12 February 2020
demanded that the Body Corporate sign off his 2017 plans and provide
comments with regard to his
garage. The lack of response led to the
present application.
The
relief sought by the applicant
[23]
The relief sought by the applicant is that the respondents be
directed to consider his request
for approval of plans for
construction by way of extension of Section 1 of the Merriman Court
Title Scheme. According to the applicant,
the extension of a section
requires a special resolution by the body corporate. Once passed, the
special resolution discloses an
obligatory agreement in terms of
which the owner can implement her/his right to extension. The
applicant relies on section 24 of
the Sectional Titles Act, which
provides that:
“
(3)
If an owner of a section proposes to extend the boundary or floor
area of his or her section, he or she shall with
the approval of the
body corporate, authorised by a special resolution of its members,
cause the land surveyor and architect concerned
to submit a draft
sectional plan of the extension to the surveyor general for
approval.”
Section
5(1) (h) of the Schemes Management Act in turn reads:
“
In addition to the
body corporate’s main functions under section 3 and 4, the body
corporate must on application by an owner
and upon special resolution
by the owners, approve the extension of boundaries of floor area of a
section in terms of the Sectional
Titles Act.”
[21]
Against this backdrop, the applicant alleges that he is entitled to
the relief he seeks. In summary,
insofar as the garage extension is
concerned, he claims that at the general meeting of 10 September
2007, the body corporate unanimously
resolved that:
“
Approved - In
principle, additions for the new garage and stair way for Johan
Greeff”
According
to his evidence, the approval was confirmed in subsequent annual
general meetings. In particular, at the annual general
meeting of 23
April 2014 it was agreed that;
“
(a)ll units were
extended and changed except section 1, who still has this right to do
so, as well as building a garage as per previous
resolutions at
meetings.”
[22]
The applicant discloses that the second respondent in 2020 advised
that she was not aware of
the right granted to him to erect a garage
at the general meeting of 10 September 2007 where she gave her proxy
to him. The applicant
contends that the second respondent was present
at most of the subsequent annual general meetings where his right was
confirmed,
in particular the meeting of 23 April 2014. According to
the applicant, if the second respondent genuinely disputed his right,
she would have raised her dispute long ago and cannot now do so.
[
23]
Regarding the extension of his section to garden area, the applicant
avers that at the annual
general meeting of 19 February 2013, the
body corporate unanimously resolved that he could extend his section:
“
1.1 K Jackson,
proxy for J Greeff, requested permission from the meeting for the
later extension of their second bedroom plus a
bathroom, even changes
to the kitchen. This were unanimously approved, subject to plan
approval by body corporate and the local
authority. Approved”
[24]
The applicant further avers that at the special general meeting of 23
April 2014 his right was
confirmed. In addition, his 2017 plans were
duly submitted and considered by the body corporate at the 2017
annual general meeting
in the presence of all the owners. To support
this contention, the applicant states that after the meeting the
fifth respondent
even sent an email to his wife, which confirms his
rights and approval of plans. It reads:
“
How are you
progressing on getting your construction plan approved? Do you have a
date in mind as yet when you intend to “break
grounds”
for your expansion plans?”
[25]
Regarding the 2019 plans, the applicant is adamant that the body
corporate is obliged to consider
his 2019 plans in good faith, and to
grant or refuse its approval of them upon reasonable grounds. He
avers that the fourth and
fifth respondents have unreasonably refused
to do so. He says that he has spent R135 000,00 for preparing
his 2019 plans based
on the granted rights to extend his section. For
all these reasons, the applicant prays for an order in terms of the
notice of
motion. He further requests that the respondents, other
than the third respondent be directed to pay costs of bringing this
application
upon the basis that those costs be borne by the second,
fourth, fifth and sixth respondents jointly and severally, and,
insofar
as any costs are paid or incurred by the body corporate in
defending this application they should not be recoverable from him or
the third respondent.
The respondents’
answering affidavit
[26]
In an affidavit deposed to by the fourth respondent, the first,
second, fourth, fifth and sixth
respondents oppose the relief sought
by the applicant. The trustees for the time being of the first
respondent, being the fourth,
fifth and sixth respondents, duly
resolved that the first respondent must oppose this application and
authorised the fourth respondent
to depose to the opposing affidavit
and instruct the legal representatives of the respondents. For ease
of reference the first,
second, fourth, fifth and sixth respondents
are referred to as respondents.
[27]
The respondents raise four preliminary points, being firstly, that
the founding papers were not
lawfully served on the fourth, the fifth
respondent and the sixth respondent. Secondly, the applicant should
not have joined, the
second, third, fourth, fifth and sixth
respondents to this application. Thirdly, the applicant is not
entitled to the relief sought
as,
inter alia
, his unit in the
Merriman Court sectional title scheme was never lawfully extended,
nor did the first respondent ever lawfully
or validly consent or
agree to such an extension. Fourthly, the second, third, fourth,
fifth and sixth respondents should not have
been joined in these
proceedings. In addition, the applicant is not entitled to perform
any construction on the common property
of the Scheme, whether in
terms of approved building plans or not.
No
service on fourth to sixth respondents
[28]
The respondents allege that the applicant attempted to serve the
founding papers in this application
on the fourth, fifth and sixth
respondents by instructing the sheriff to deliver same to the office
of the current managing agent
of the first respondent. According to
the respondents, Rule 4(5) of the Management Rules of the first
respondent, as prescribed
by section 10(2)(a) of the
Schemes
Management Act 8 of 2011,
provides
that the service address for any legal process or delivery of any
other document to a member of a body corporate, is the
address of the
primary section registered in that member’s name, provided that
a member is entitled by written notice to
the body corporate to
change that address.
The
fourth respondent states that he is a member of the first respondent
and because he never appointed an alternative service address,
the
founding papers in the application had to be served on the primary
section of the Scheme registered in his name, being section
9.
However, the fifth and sixth respondents are not members of the first
respondent, and the fifth respondent does not even reside
at Merriman
Court but in Johannesburg. According to the fourth respondent,
neither of them ever appointed the first respondent’s
managing
agent
to accept service of any process on
their behalf, in writing or otherwise. As such, the application was
never served on them and
these proceedings are void as far as we are
concerned.
[29]
The respondents nonetheless concede that the trustees were notified
of the application, received
the founding papers and are opposing the
application.
Joinder
of second and third respondents
[30]
According to the respondents,
the
first respondent is a juristic person created by statute, in
particular the Sectional Titles Act. It has legal personality,
can
acquire rights and liabilities and own assets apart from its members,
has perpetual succession and can sue and be sued in its
own name as
far as allowed by statute.
In
the result the relief sought by the applicant in his Notice of Motion
can only be sought from and granted against the first respondent.
The
second and third respondents are only members, not even trustees for
the time being, of the first respondent. As such, no relief
can
competently be granted against them and they should never have been
joined to this matter. For this reason, the application
should thus
be dismissed as against the second and third respondents on this
ground alone.
Joinder
of the fourth to sixth respondents
[31]
The respondents further aver that the applicant joined the fourth,
fifth, and sixth respondents
to this application in their personal
capacities whereas the fifth and sixth respondents are not members of
the first respondent.
They say that the fourth to sixth respondents
,
in terms of section 7 of the Management Act, in their capacities as
the trustees for the time being of the first respondent, perform
and
exercise the functions and powers of the first respondent, subject to
the provisions of the applicable legislation, the Management
and
Conduct Rules of the Scheme and any restriction imposed or direction
given at a general meeting of the members of the first
respondent.
The respondents contend that a
s
the relief sought by the applicant in his Notice of Motion can only
be sought from and granted against the first respondent, the
fourth
to sixth respondents should never have been joined to this
application, either in their capacities as trustees, or in their
personal capacities. For this reason, the application should thus be
dismissed against them.
The
merits
[32]
As to the merits of this application, the respondents aver that the
fact that the applicant,
as owner of Section 1, had the exclusive
use, occupation and enjoyment of the garden area did not entitle him
to extend or expand
his section into such area as of right,
especially as it includes a staircase/fire escape and covers more
than half of the entire
property on which the Scheme is situated,
being Erf 1306, Green Point, Cape Town. They deny that the applicant
could or did regard
such a possible extension as a factor that
influenced his decision to acquire Section 1. According to the
respondents’ version,
the applicant never made a formal
application to construct a garage in 2007, nor did he give any notice
to the first respondent
or its members that he intended to raise such
an issue at the annual general meeting of the first respondent held
on 10 September
2007. The respondents state that the applicant simply
raised the possibility of constructing a garage at such meeting which
possibility
was, according to the minutes thereof, approved in
principle only. The respondents further aver that the second
respondent did
not attend such meeting. She gave a proxy to the
applicant to attend the meeting and vote on her behalf as she was
informed that
her votes (for Sections 3 and 6) were required to
change the then managing agent of the first respondent. According to
the respondents,
the applicant never informed her that he intended to
request that he be allowed to construct a garage, and that he would
use the
proxy she gave to him to vote in support of such a request.
According to the respondents, the second respondent was very upset
when she established that he did so. On 1 July 2020, the second
respondent informed the applicant, by way of a WhatsApp message,
of
her dissatisfaction with his conduct. It reads thus:
“
Johan
I need to make it clear
to you and your lawyers and the judge that at that time i was not at
the meeting,
and that a Mr Du Plessis
asked me to give my
two
proxies to you for only one reason, and that was to have a management
change.
From Mr Scalabrino to
Wilma Meyer, no mention was made of me handing my proxies to you for
you to vote yourself a garage.
I am prepared to testify
in court to that effect.
Claire Blaha.”
The
respondents further contend that if the applicant had wished to
extend his section in terms of section 24 of the Sectional Titles
Act, by constructing such a garage, any such extension must be
approved through a majority vote at a special general meeting
.
In seeking the
approval, the applicant not only had to give timeous notice of his
intention to seek such a resolution at the annual
general meeting
held on 10 September 2007, and that he complied with all the
prescribed formalities, the agenda of such meeting
also had to
contain a description of the general nature of all business and a
description of the matters that would be voted on
at such meeting,
including the proposed wording of any special or unanimous
resolution.
According to the
respondents, the applicant did not comply with any of these
requirements
prior
to, or at the annual general meeting held on 10 September 2007
.
As such, so allege the respondents, the alleged decision of the first
respondent relied upon by the applicant to claim that he
is entitled
to construct a garage, is void.
[33]
The respondents further aver that even if such approval or decision
is not void, any alleged
right of the applicant in this regard
constituted a “
debt
”
in terms of the
Prescription Act 68 of 1969
. As
more than three years have elapsed after the “
debt
”
arose, any right or claim of the applicant in this
regard has prescribed. According to the respondents, it is clear from
the minutes
of the meeting, that, on the applicant’s own
version, he simply sought and obtained permission to extend his
section. The
respondents further aver that no indication is given as
to where, when or to what approximate extent the section would be
extended,
as such, any alleged approval in this regard was nothing
more than an indication that any such proposed extension would be
considered
once detailed and proper plans had been submitted.
According to the respondents, because this could only be done in
terms of section
24 of the Act, the applicant
not
only had to give the requisite notice of his intention to seek a
special resolution to extend his section at the annual general
meeting held on 19 February 2013, the agenda of such meeting also had
to contain a description of the general nature of all business
and a
description of the matters that would be voted on at the meeting,
including the proposed wording of the required special
resolution.
The respondents state that the applicant did not
comply with any of these requirements
prior to, or at such
meeting
. As such, the alleged
decision of the first respondent relied upon by the applicant to
claim that he is entitled to extend his
section into the garden area,
is void.
[34]
The respondents concede that the affairs of the first respondent had
been conducted quite informally,
and without always complying with
the formalities and procedures prescribed by the applicable
legislation and the Management Rules
of the first respondent. They
confirm that at the annual general meeting held on 29 June 2011,
because of a motion brought by the
applicant, the first respondent
resolved to have the Scheme re-surveyed with the intention of
regularising the position by amending
the sectional plans of the
Scheme to reflect the actual size and locality of the sections in the
Scheme. As part of this process,
during or about 2012, the sectional
plans of the Scheme were duly amended and registered to provide,
inter alia
, for the extension of Section 2 and the subdivision
thereof into Sections 7 and 8. The respondents further state that
during or
about 2013, the sectional plans of the Scheme were again
amended and registered to provide,
inter alia
, for the
extension of Sections 4 and 5, as well as the consolidation thereof
to form Section 9.
[35]
It is the respondents’ version that the extensions to the
sections in the Scheme and issues
that arose as a result thereof,
were again discussed at the annual general meeting held on 19
February 2013. Subsequent thereto,
the third respondent approached
Paddocks Attorneys for advice. Having done so, the third respondent
prepared a proposal that was
submitted to and accepted by the first
respondent at its annual general meeting held on 23 April 2014. The
respondents point out
that the draft plans annexed to such proposal
showed that sections 3 and 6 of the Scheme would be extended by,
inter alia
, incorporating two garages in “Building 2”
in such sections, whilst Section 9 would also be extended by the
incorporation
of a garage constructed adjacent to “Building 2”.
The respondents contend that the proposal also clearly recorded that
no changes would or had to be effected to Section 1, being the
applicant’s section. They aver that the aforesaid proposal
was
then adopted at the annual general meeting whereupon the amended
sectional plans were duly registered.
[36]
It will be recalled that the applicant in his founding affidavit
averred that in April 2017 he
submitted plans to the body corporate
for the extension of section 1 into the garden area, thereby
exercising his rights first
granted in 2013. In response thereto, the
respondents deny that the applicant had, or has, any right to extend
Section 1 either
by extending it into the garden area or by erecting
a garage on the common property. Furthermore, so goes the averment,
the plans
that the applicant refers to, are mere architectural
sketches with very little detail and do not constitute proper
building plans.
In addition, they do not contain any plans or
sketches relating to the construction of any garage by the applicant,
nor do they
indicate the extent to which the proposed construction of
the applicant’s section would encroach upon the garden area or
any other common property of the Scheme. The respondents consider the
applicant’s purported plans to be mere drawings.
[37]
The respondents admit that the drawings were circulated to the
members of the first respondent
at the meeting held on 28 April 2017.
They were discussed and were regarded as little more than an
indication of the possible intentions
of the applicant once he should
decide to proceed with the renovations to his section. The fourth
respondent states that according
to his own understanding, the
applicant would, in due course, prepare and submit proper and
detailed building plans to the first
respondent and its members so
that the proposed construction could be properly considered.
[38]
Regarding the applicant’s revision of the 2017 plans in 2019,
the respondents aver that,
notwithstanding the fact that the
applicant did not have any right to effect renovations or
construction in terms of the drawings,
by revising the plans in 2019,
he clearly waived any rights he may have obtained in 2017.
Furthermore, so aver the respondents,
the revised plans not only
differed materially from the drawings in that they,
inter alia
,
provide for the construction of a garage that would severely affect
the privacy and natural light of Section 6. Furthermore, the
implementation thereof would have a massive impact on the first
respondent and its members.
[39]
As to the special general meeting of 26 July 2019, which was attended
by the applicant and the
third respondent only, the respondents aver
that the notice of the meeting, was only emailed to the second
respondent and the fourth
respondent. As such, it was never delivered
to them by hand or by registered post, as required by section 6(3) of
the Schemes Management
Act and Rule 15(6) of the Management Rules.
Nonetheless, the respondents acknowledge that although the email does
not specify what
building plans the applicant referred to, it meant
the plans that were attached to the notice. It also appears from the
other emails
annexed to the founding affidavit that the fourth and
fifth respondent had numerous difficulties with the plans. The
respondents
state that the notification of the meeting was received
by the fourth and fifth respondents from Justine Lotz, who
represented
Sandak Lewin, the managing agent of the first respondent
at that time. According to the respondents, the fourth and fifth
respondents
were astounded by this attitude as they had raised
numerous lawful and valid concerns regarding the plans which had not
been addressed
despite the applicant acknowledging the validity
thereof. The respondents lament the fact that the applicant furnished
them with
further information and changes to the plans as late as 24
and 25 July 2019, whilst the meeting was on the 26 July 2019. They
state
that that they needed time to consider the plans and obtain an
architect’s advice. The respondents deny that they told the
applicant that the first respondent would only approve the plans once
same had been approved by the local authority. Besides, so
continues
the averment, the applicant confirmed that all he sought at the
meeting was the preliminary approval of the plans, and
no more.
[40]
It will be recalled that the applicant stated that in the morning of
26 July 2019, the third
respondent circulated an email detailing the
historical context of how the applicant had acquired the right to
effect extensions
in his Section. The respondents deny that the
applicant ever acquired the rights, or still has the rights to extend
Section 1,
either by way of construction in the garden area or by the
construction of a garage. The respondents further deny that the
failure
of the second, fifth or sixth respondents to attend the
meeting was because they were being obstructive. They state that they
simply
required more time to consider the further information and
drawings received from the applicant on 24 and 25 July 2019. As far
as they were concerned, the applicant was acting very unreasonably in
refusing to postpone the meeting. Furthermore, so contend
the
respondents, it is clear from the emails of the fourth and fifth
respondents that the queries and concerns they raised were
not in the
least “
obstructive
”. The respondents allege that
on the contrary, their concerns were relevant and material.
[41]
With regard to the meeting of 2 August 2019, the respondents aver
that they still had not had
the opportunity to properly consider the
further plans and drawings furnished to them on 24 and 25 July 2019.
This, according to
them is so because the fourth and fifth
respondents intended to consult with their architect regarding the
new and additional plans
prior to the meeting but it was not possible
to do so. Thus, the fifth respondent informed Sandak Lewin through an
email on 31
July 2019, that it would not be possible to consider the
additional and/or new plans prior to the further meeting on 2 August
2019.
It reads as follows:
“
Hi
Justine
These drawings are new
and we have not had sight of them before. It is completely
unreasonable to request a meeting with ne wdoings
[sic] in 2 days
that leaves us no opportunity to review and respond critically.
Can we please agree that
the meeting be postponed until we have had a chance to engage expects
to evaluate the proposal. We will
not be able to make an informed
decision on this on Friday.
Please can you advise
alternative dates in the future that we can all agree is convenient
and please ca it be on a Sunday morning
so this does not affect
business.”
Sandak
Lewin reverted to the fourth and fifth respondents later that day by
return of email wherein she informed them that:
“
We
will have to recall the meeting with the 30 day notice unless all
owners agree to a shorter notice period. Alternatively the
reconvened
meeting proceeds”.
The
second respondent and the fifth respondent, with the knowledge and
consent of the fourth respondent, notified Sandak Lewin on
31 July
2019, that they agreed that the further meeting be postponed for 30
days. The respondents further aver that neither of
them received a
response to this email, and as such, they accepted that the further
meeting would be, postponed for 30 days. They
only became aware that
the further meeting proceeded on 2 August 2019 when Sandak Lewin
furnished them with the minutes on 23 August
2019.
[42]
The respondents dispute that the applicant’s plans were
approved at the meeting on certain
conditions as alleged by the third
respondent. According to the respondents the minutes of the further
meeting in annexure “
JWG21”
show that what was approved at that meeting was
the extension of section 1 by 97 m² by extending it into the
exclusive use
area allocated to such section, being the garden area,
as well as by a further 26 m² for the erection of a garage. In
any
event, so counter the respondents, any decision in this regard is
clearly invalid or void as no notice was given that any special
resolution would be sought. According to the respondents, not only
was the Notice never properly served or delivered,
it did not advise
that such a matter would be voted on at the meeting, nor did it
contain the proposed wording of any special or
unanimous resolution.
This, according to the respondents, does not even take account of the
fact that the applicant repeatedly
confirmed that all he sought at
the meeting and the further meeting was the provisional or
preliminary approval of the plans especially
as he clearly believed
that he already obtained the rights to extend Section 1.
Moreover, aver the respondents, it is clear from
the email of the fifth respondent dated 25 July 2019 that any formal
resolution
to extend Section 1 would have been vehemently opposed.
[43]
Insofar as the applicant’s allegation to the effect that
notwithstanding prior approval
of his plans, on 2 October 2019, he
convened a special meeting which was held on 19 October 2019, the
respondents emphasise that
the notice of that special general meeting
was only emailed to the second, fourth and the fifth respondents. As
such, it was never
delivered to them by hand or by registered post,
as required by section 6(3) of the Schemes Management Act and Rule
15(6) of the
Management Rules prescribed in terms of such act. In
addition,
it did not
contain the wording of the proposed special resolution, as required
in terms of prescribed Management Rule 17(7). However,
regardless of
the short notice, the second, fifth and sixth respondents state that
they attended the meeting.
[44]
It is common cause that before the annual general meeting of 19
October 2019, a special meeting
was held wherein trustees of the body
corporate were nominated. The respondents however, flatly deny the
applicant’s allegations
to the effect that the fourth and the
fifth respondents captured the first respondent. According to the
respondents, the absurdity
of this allegation is clearly demonstrated
by the fact that they immediately agreed to impose a maximum spending
limit of R15 000.00
on the trustees which could only be exceeded
if approved in the prescribed manner.
[45]
The fourth and fifth respondent do not dispute that at the meeting
they refused to permit a vote,
even though the applicant had
requested it, and that the meeting was accordingly adjourned without
any decision upon the applicant’s
plans. However, the
respondents explain that although they were perfectly entitled to
refuse to entertain the special resolution
on the basis that it did
not comply with 6(3) of the Management Act and Rule 15(6) of the
Management Rules. Furthermore, the real
reason why they did not vote
and rejected the plans is because they required further information
in the hope of finding some middle
ground, in the light of the fact
that the applicant refused to concede that any decision taken at the
further meeting was null
and void. Furthermore, at that stage,
neither the second respondent, the fourth respondent , fifth
respondent, nor the sixth respondent,
had thoroughly or properly
investigated the background to the applicant’s claims, namely,
that he has the right to extend
his section by constructing a garage
or utilising the garden area or the legal requirements in this
regard. It was only later that
they were advised by STBB Attorneys,
which advice was subsequently confirmed by their current legal
representatives that the applicant
did not have any valid or lawful
right to extend his section. In addition, the respondents state that
it is unclear why the applicant
alleges that the minutes of the
October meeting are not accurate as no mention of a vote being
conducted is made; the recording
is that “
70.17% of members
present at the meeting objected to the plans for the extension to be
done on the exclusive use areas as well as
the plans and erection of
the said garage
”. The respondents deny that the minutes of
the meeting drafted by Justine Lotz of Sandak Lewin, were incorrect
and that the
minutes recorded by the applicant’s attorney
correctly reflected what transpired at such meeting.
[46]
With regard to the applicant’s assertion that his plans were
considered and approved at
the 2017 annual general meeting, and that
pursuant thereto, the fourth respondent sent an email to the
applicant’s wife enquiring
about the progress on getting the
construction plans approved and when the applicant intended to “
break
grounds
”, the fourth respondent admits sending the email.
However, he explains that his true motivation for sending it to was
to
establish whether the applicant had already submitted building
plans to the relevant local authority. The fourth respondent further
explains that he also wanted to establish whether the so-called 2017
plans, which in his opinion were in fact drawings, were the
same as
those submitted by the applicant to the local authority.
[47]
The respondents aver that by asking this court to compel the first
respondent to consider his
“2019 plans”, as being the
plans, the applicant clearly acknowledges that such plans were not
lawfully and validly
approved at the further meeting. This averment
is, according to the respondents, confirmed by the applicant’s
allegations
to the effect that the plans “
have been left in
limbo
”. Furthermore, so goes the averment, according to the
minutes of the further meeting, the plans considered and ostensibly
approved at that meeting, were contained in the applicant’s
architect’s proposal. The revised plans are clearly not
the
same as the original plans. According to the respondents, the
applicant, nonetheless does not have any right to compel the
first
respondent to consider the plans (or even the revised plans) as his
section has not been extended and as he does not have
the right to
extend his section.
[48]
The respondents ask the court to dismiss the applicant’s
application with costs. As to the costs
order sought by the
applicant, the respondents dispute his entitlement thereto.
The
replying affidavit
[49]
The applicant retorts to the respondents’ objection to the
effect that this application
was not lawfully served on them by
stating that this ground of opposition is bad, firstly, because the
respondents have all received
notice of the application, secondly,
because the managing agent advised his attorneys that that the body
corporate’s new
domicilium citandi et executandi
was c/o
LN Property Management of 91 Kildare Road, Newlands, Cape Town.
According to the applicant, Neville Minnie, (an attorney
who had been
involved with the fourth and fifth respondents), in response to the
applicant’s attorney query regarding addresses
of the trustees,
advised on 21 July 2020 that the trustees had no obligation to
provide their addresses to the applicant. He specifically
advised
that “
all Trustees have elected our office [in Gauteng!] for
service of any formal process, alternatively the offices of the newly
appointed
managing agent”.
[50]
The applicant emphatically denies that his unit was never lawfully
extended, and the body corporate
did not ever lawfully or validly
consent or agree to such an extension as alleged by the respondents.
[51]
Regarding the limit on the powers of the trustees not to take any
decision which entails expenditure
of more than R15 000, the
applicant states that the decision to oppose this application was a
decision to spend more than
R15 000. According to the applicant,
this contention is fortified by the resolution of the trustees passed
on 4 November 2020
which discloses that the trustees purported to
have incurred costs of R84 527,50 to oppose the litigation,
including a deposit
of R42 775 – which the trustees
already purport to have bound the body corporate to have loaned from
the second respondent.
This is also apparent from the invoice of Van
der Walt attorneys’ invoice dated 30 October 2020. Accordingly,
so contends
the applicant, there is no lawful opposition to his
application by the first respondent as the trustees could not
resolve, and
have not lawfully resolved, to oppose this application
or appoint J van der Walt attorneys. Nor can J van der Walt attorneys
accept
any funds or instruction from the trustees or the body
corporate or continue to act.
[52]
According to the applicant, on 25 November 2020, his attorneys
delivered a notice in terms of
Rule 7 to J van der Walt attorneys. In
response thereto, J van der Walt attorneys referred the applicant’s
attorneys to the
resolution annexed to the founding affidavit as
“
MC1”
and wrote:
“
(i)t is clear that
I am authorised to act on behalf of [the body corporate] and that the
[body corporate] is authorised to oppose
your client’s
application”.
The
applicant contends that the second, third and fourth respondents
could not, by their ostensible resolution as apparent trustees
lawfully instruct J van der Walt attorneys to oppose this application
for the body corporate, or indeed resolve to oppose this
application
for the body corporate. This is so because other members of the body
corporate were not consulted when the resolution
to spend more than
R15 000.00 was made. In addition, so avers the applicant, J van der
Walt attorneys may not recover their fees
and disbursements in
purporting to represent the body corporate to oppose this application
from the body corporate or members of
the body corporate as such.
[53]
On 25 November 2020 the managing agent provided an email from J van
der Walt attorneys wherein
the latter proffered the following advice
to the trustees:
“
If the trustees of
the body corporate agree to appoint me on behalf of the body
corporate, to investigate all the problems facing
Merriman Court and
to investigate all the recent transactions regarding the changes to
the sections and whether the correct procedures
were followed, then
they will be acting within their powers to do so. Does the body
corporate already have an attorney representing
it in litigation? I
am concerned about the possibility that the body corporate might have
two attorneys but the trustees must motivate
their decision to
appoint me, in the resolution appointing me. I suggest that all the
trustees sign the resolution appointing me.
Once the resolution has
been signed, I suggest that the trustees notify all the members of
the body corporate of my appointment.
Please note that my rate
is R 2 200.00 per hour or part thereof.”
The
applicant avers that the advice provided by J van der Walt attorneys
is incorrect, in that it failed to appreciate that the
trustees were
not empowered to incur costs in excess of R15 000, as the
appointment undoubtedly would entail.
[54]
Insofar as the assailed joinder of the second and third respondents,
the applicant explains that
they have been cited because of their
interest in the application, and – in the case of second
respondent – because
a costs order is sought which affects her
as a member of the body corporate. The fourth, fifth and sixth
respondents are, according
to the applicant cited because of their
interest in the application, because they purport to have voted
themselves to be trustees,
and because the applicant requests a costs
order which affects them. The applicant says that the fourth
respondent is also cited
because of his interest as a member of the
body corporate.
[55]
The applicant, in reply to the respondents’ contention to the
effect that the exclusive
use, occupation and enjoyment of the garden
area did not entitle the owner of section 1 to extend his section
into such an area
as of right includes as it includes a
staircase/fire escape, states that this allegation is not relevant to
his right to extend
his section onto the common property. He explains
that the reason for this is that his section is the lowest section in
the block
(on the ground floor). Furthermore, no occupant of the
block is required to traverse his section in order to gain access to
or
from his/her section ordinarily, or in the course of a fire.
He/she need only to be able to access the two fire escape routes and
the access route, as he shall be able to do upon extension of his
section in accordance with his plans. The applicant further avers
that his attorney has confirmed this with the local fire safety
authority.
[56]
Regarding the applicant’s alleged misuse of the proxy of the
second respondent to exercise
her vote to vote in favour of his
constructing a garage in 2007, the applicant avers that the issue is
irrelevant because what
was required, at that stage, was a special
resolution – being a resolution passed by a majority of
three-fourths of the votes
(reckoned in value) and not less than
three-fourths of the votes (reckoned in number) of members of the
body corporate who are
present or represented by proxy. According to
the applicant, the second respondent’s failure to attend,
failure to vote,
or even notional vote against the resolution would
not have and does not defeat it. The applicant reiterates that on 24
March 2009
and 23 April 2014 there were meetings which the second
respondent attended, and at which his right to construct a garage was
referred
to and confirmed. The applicant states that at not even one
of these meetings did the second respondent express any disquiet
concerning
his right to construct a garage. Nor did she do so upon
receipt of the minutes of those meetings. According to the applicant,
in
the circumstances, there was a duty on the second respondent to
have spoken up if she disputed his right to construct a garage,
she
never did so. By failing to do so, so contends the applicant, the
second respondent represented that she did not dispute his
exercise
of her proxy in 2007, or indeed that he had acquired the right to
extend his section by constructing a garage, and he
has relied on
that representation by acting as he has to implement the permission
granted to him. The applicant avers that the
second respondent and
the respondents are estopped now from denying the truth of that
representation.
[57]
One of the allegations made by the respondents is that the garage
extension and other resolutions
and meetings failed to comply with
formal notice requirements. The applicant denies this and further
explains that the records
disclosing such notice can no longer be
found. According to the applicant, members of the body corporate did
not require formal
notice. On the contrary, they considered the
resolution and dealt with it, thereby waiving their rights to formal
notice. Besides,
continues the applicant, it is common cause, as
conceded by the respondents that the affairs of the body corporate
were conducted
in an informal manner. When other members were
afforded the rights to extend their sections, they were afforded such
rights without
formal notice as the fourth respondent alleges now is
required.
[58]
It will be recalled that the respondents allege that the notice of
the meeting to be held on
19 October 2019 “
did not contain
the wording of the proposed special resolution, as required in terms
of prescribed Management Rule 17(7)”
. The applicant states
that he inadvertently attached the incorrect notice to the founding
affidavit. The applicant further states
that on 14 October 2019 the
managing agents sent a notice containing the wording of the proposed
special resolution. It reads thus:
‘
RESOLUTON TO
APPROVE THE PLANS TO EXTEND SECTION 1 IN TERMS OF THE SECTIONAL
TITLES SCHEMES MANAGEMNET ACT, 2011 (Act No 8 of 2011)
AND SECTIONAL
TITLES ACT, 1986 (Act.95 of 1986) OF THE MERRIMAN BODY CORPORATE
SCHEME NO, SS97/1986
Whereas the members of
the Merriman Court Scheme No SS97/1986, previously unanimously
approved the extension of Section 1 and the
erection of a garage,
subject to the approval of building plans by the Body Corporate and
the City of Cape Town. The members subject
to the suspensive
condition set out below, hereby approve the attached draft plans
reflecting the areas to be added to section
1inclusive of the
erection of a garage. The general scope of the works is shown on the
attached document. The owner of section
1 (“the owner”)
is authorized to extend the owner’s section in accordance with
the draft plans attached to tis
resolution, in terms of the
provisions of the Sectional Titles Schemes Management Act, 2011 (Act
No 8 of 2011) and Sectional Titles
Act, 1986 (Act No1986).
A.
The owner of section 1 shall be liable for all costs associated with
the extension of section 1,
including but not limited to building
costs, approval and registration of amending sectional plans of
extension and repairs to
the common property arising from the
building works.
B.
From the dates of when beneficial occupation of the extended area is
possible, the owner of section
1 wil be liable for levies on the full
floor area of the section as if the amending sectional plans of
extension have been registered
in the Cape Town Deeds Registry.
C.
The owner of section 1 shall not be entitled to receive levy
clearance in terms of the provisions
of Section 15 B3(1)(a) of the
Sectional Titles Act until
such time as the amending sectional plans
of extension have been registered in the Cape Town Deeds Registry”
[59]
The applicant in reply bemoans the fact that although the fourth
respondent would have received
a copy of the correct notice, he
failed to disclose this fact in his answering affidavit. Instead, he
(the fourth respondent),
made allegations at odds with the correct
factual position of which he was aware, and sought – on that
basis - to exploit
the incorrect attachment to the founding
affidavit.
[60]
The applicant denies the respondents’ allegation to the effect
that his right to extend
his section comprises a debt which has
prescribed. With regard to the respondents’ characterisation of
the approved plans
as drawings, the applicant states that the
approved plans contained sufficient detail for the body corporate to
grant its approval,
and it was satisfied that it could do so, and
indeed it did so. The applicant reiterates that plans were approved
upon the basis
that the third respondent was authorised to sign any
documentation necessary – which would include any further plans
required
for submission to the local authority.
[61]
The applicant assails the fourth respondent’s assertion that he
understood that the applicant
would – in due course –
“
prepare and submit proper and detailed building plans to
the [body corporate] and its members so that the proposed
construction
could properly be considered”
. According to
the applicant, such an understanding is at odds with the minutes
which disclose that the body corporate characterised
what the
applicant had provided to it as “
plans”
. The
minutes specifically record that the body corporate “
formally
accepts the plans”
. The minutes further expressly record
that what was required to be circulated going forward was not any
further plans, but only
“
(c)ivil engineer and city council
approval”
.
[62]
Likewise, according to the applicant, the fourth respondent’s
apparent understanding is
at odds with the emails he sent on 7 August
2017 in which he enquired as to how the applicant and his wife were
progressing in
getting our plans approved by the City, and his
comment to the effect that he did not know that it could take so long
to get approval
of plans.
[63]
The applicant denies the respondent’s assertion to the effect
that the decision made at
the body corporate meeting in 2017 was not
binding and explains that the minutes expressly record that the body
corporate “
formally accepted”
his plans. According
to the applicant, the use of those words shows that members intended
their decision in this regard to be binding.
Furthermore, so contends
the applicant, the minutes of the meeting of 7 December 2017 support
his case (that the decision at the
April 2017 meeting was binding),
and contradicts the respondent’s allegations (that the decision
at the April 2017 meeting
was not binding). This, according to the
applicant is particularly so because on the first page of the minutes
(annexure
MC7
), next to the heading “APPROVAL OF
PREVIOUS MINUTES” it is recorded that at the meeting of 7
December 2017, the minutes
of the meeting held on 28 April 2017 were
taken as read and adopted thus:
“
(t)he minutes of
the Annual General Meeting of the body corporate held on 28
th
April 2017 having been
circulated with the notice of the meeting were taken as read and
adopted by the meeting”).
The
body corporate expressed no disquiet or difficulty with the decision
taken on 27 April 2017.
[64]
The applicant contends that there was a duty upon its members to
express any disquiet or difficulty
with the decision taken on 27
April 2017, when the body corporate met for the first time after its
meeting of 27 April 2017 and
on 7 December 2017, when the body
corporate considered the minutes of the meeting of 27 April 2017
which recorded the grant of
formal approval. No member of the body
corporate did so. The applicant further contends that in this way,
the body corporate represented
that his plans were lawfully approved.
He states that he had acted upon this representation by seeking to
implement the approval.
In the circumstances the body corporate is,
according to the applicant estopped from denying that he was granted
formal approval
lawfully to extend my section on 27 April 2017.
[65]
The applicant alleges that he learned for the first time that the
body corporate has only four
members after the fourth respondent had
deposed to the answering affidavit, the result being that all four
members, were the trustees
of the body corporate. According to the
applicant, it therefore was not lawful for the fifth and sixth
respondents, who are not
members of the body corporate to purport, on
19 October 2019, to exercise a vote as proxy for the same member, the
second respondent,
to stipulate only three trustees. Let alone that
two of the three trustees would be themselves. He further disputes
that the fifth
and sixth respondents were lawfully appointed as
proxies by the second respondent. The applicant states that he and
the third respondent
in an email dated 21 November 2020 and 25
November 2020, respectively, expressed consternation to the fourth
respondent’s,
(a tenant) appropriation for herself the role of
chair of the apparent three-trustee one-member board of trustees of
the body corporate,
by loaning it money which it must pay with
interest and purporting to have instructed attorneys on its behalf.
In response to those
emails, the fifth respondent accused the
applicant and the third respondent of sabotaging the management of
the body corporate
and being obstructionist.
[66]
The applicant denies that he waived his rights to implement the old
plans by preparing new plans
as alleged by the respondents. He states
that he prepared the new plans to reconfigure the internal layout of
the apartment to
accommodate his family. He says that he did not, by
preparing the new plans, waive his rights. Regarding the respondents’
assertion that the revised plans adversely affected other sections,
the applicants avers that such comments are irrelevant for
the
purpose of this application and fall to be made upon consideration of
the revised plans. Thus, so continues the averment, he,
in this
application requests that the revised plans be considered.
[67]
The respondents in the answering affidavit allege that the real
reason why the fourth and fifth
respondents did not vote and reject
the plans in the meeting of 19 October 2019 is because they required
further information in
the hope of finding some middle ground and as
the applicant refused to concede that any decision taken at the
further meeting was
null and void. In response thereto, the applicant
avers that the meeting of 19 October 2019 was convened at the fourth
and fifth
respondents’ request to reconsider the decision made
at the reconvened meeting held on 2 August 2019. The fourth and fifth
respondent, according to the applicant made that request on 30 August
2019. The applicant further contends that they could not
have
requested a decision be reconsidered, and then refuse to make a
decision because by requesting reconsideration of the decision,
they
disclosed that they were ready to do so. Besides, so contends the
applicant, in the course of August 2019 the fourth and fifth
respondents had taken advice from attorneys about the decision and
plans, and by 19 October 2019, they had had at least two months
to
obtain all the information they required in order to deal with the
issue substantively as they indicated they would, on 19 October
2019.
The applicant bemoans the fact that on 19 October 2019, instead of
reconsidering the decision made on 2 August 2019
in good faith
as was incumbent upon them to do, they simply refused to make a
decision.
[68]
As to the respondent’s assertion to the effect that they were
not certain why the applicant
alleges that the minutes of the
reconvened special general meeting of 19 October 2019 are inaccurate,
the applicant replies by
stating that the minutes inaccurate because
they fail to show that the fourth and the fifth respondents refused
to vote as alleged
in the founding affidavit. In addition, points out
the applicant, the respondents’ failure to answer to this
averment discloses
an admission that his allegation is correct.
Furthermore, contends the applicant further, the respondents fail to
disclose any
particular respect in which they are incorrect.
According to the applicant, the minutes based on his attorney’s
notes are
a recording of the meeting and accurately reflect what
transpired and as confirmed by his attorney.
[69]
The applicant denies the respondents’ averment to the effect
that he does not have any
right to compel the body corporate to
consider the plans. He states that he is a member of the body
corporate and the meeting of
19 October 2019, was convened at the
request of members of the body corporate to reconsider the resolution
approving the plans,
taken at the meeting held on 2 August 2020. In
the circumstances the members of the body corporate are, according to
the applicant
subject to a duty to consider his 2019 plans. Moreover,
the members of the body corporate could not call the meeting of
19 October
2019 to reconsider the resolution approving the plans
and then fail to do so. In general, and in any event, the members of
the
body corporate are subject to a duty to consider his request, and
as his neighbours, they must act fairly, in good faith.
[70]
The respondents in the answering affidavit allege that the applicant
merely sought “
preliminary
approval”
of
the plans. The applicant in reply explains that what he conveyed by
this was that he sought the body corporate to approve his
plans as a
first step, so that he could proceed to obtain local authority
approval and then implement them – in accordance
with the
modus
operandi
followed
by all other owners who had extended sections in the scheme. He
further states that other members of the body corporate
will have
understood what he conveyed, because he acted in a manner consistent
with the historical
modus
operandi
,
and because of the historical context of how the body corporate
conducted its affairs as explained by the third respondent to
them.
In fact, so reiterates the applicant, the fourth respondent’s
email to his wife enquiring about the progress of having
the plans
approved by the city council and when they intended to “
break
grounds”
plans
is consistent with the understanding that the body corporate had
granted the applicant approval as required. Furthermore,
so contends
the applicant, the fourth respondent’s averment in the
answering affidavit to the effect that his motivation
for sending the
email was “
to
establish whether [I] has already submitted building plans to the
relevant local authority, If [I] had submitted such plans”
then,
alleges Leong Son, he “
also
wanted to establish whether the so-called 2017 plans, being the
Drawings, were the same as any plans submitted to the local
authority”
is
at odds with what he wrote in two emails he sent on 7 August 2017 –
for in neither of those emails did he ask to see the
plans submitted
to the City. More importantly, contends the applicant, even if the
third respondent’s motivation was as he
has alleged, that
motivation does not change what his email reveals: which is that he
understood that the applicant’s plans
were already approved by
the body corporate.
Issues
for determination
[71]
It will be recalled that the relief sought by the applicant in the
notice of motion is an order
that the respondent must consider his
request for the approval of his 2019 building plans. In addition, he
seeks a declaratory
order that he is in any event permitted or
entitled to implement his 2017 building plans. The respondents
initially opposed the
matter on the grounds that the application was
never properly served on the fourth respondent to sixth respondents,
and that the
second to sixth respondents should not have been joined
in this application. During argument they indicated that they no
longer
persisted with the two issues, and that the matter should be
determined on the merits. However, they emphasise that the issues
were in any event properly and correctly raised. Against this
backdrop, the issues for determination may be summarised thus:
71.1 Did the first
respondent authorise the construction of a garage on
section 1
at its
annual general meeting held on 10 September 2007?
71.2 Did the first
respondent authorise and approve the extension of the applicant’s
unit into the garden area allocated
to him as his exclusive area at
its annual general meeting held on 19 February 2013.
71.3 Was the
special general meeting convened on 2 August 2019 properly convened?
Were the resolutions taken thereat valid?
71.4 Has the
applicant’s purported right to extend his unit in the sectional
title scheme prescribed?
The
applicable legal principles
[72]
The applicant seeks final relief, therefore the evidence in the
affidavits must be evaluated
by applying the rule in
Plascon Evans
Paints Ltd v Van Riebieck Paints (Pty) Ltd
1984(3) SA 623 (A),
which states that the application falls to be resolved on the
respondent’s version – unless that
version discloses
“
bald or uncreditworthy denials, raise(s) fictitious
disputes of fact, is palpably implausible, far-fetched or so clearly
untenable
that the court is justified in rejecting [the respondent’s
evidence] merely on the papers.”
[73]
Rule 30
(g) of the standard Management Rules prescribed in terms of
section of the Schemes Management Act provides that a member of the
body corporate shall not construct, or place any structure or
building improvement on an exclusive area which in practice
constitutes
a section or an extension of the boundaries or floor area
of a section without complying with the requirements of the Scheme
Management
Act and the
Sectional Titles Act. Section
5(1) of the
Schemes Management provides that the body corporate must “
on
application by an owner and upon special resolution by the owners,
approve the extension of the boundaries of floor area of a
section in
terms of the Sectional Title Schemes Act.”
Section 5(1) (h)
therefore requires an application by the owner to extend, and a
special resolution by all owners.
Section 1
of the
Sectional Titles
Act provides
that a special resolution can be obtained in one of two
ways,
viz,
when passed by 75 percent votes, calculated both in
value, and in number of the votes of the members of the body
corporate who
are represented at a general meeting, or when agreed to
in writing by members of body corporate. A member of the body
corporate
desirous of constructing or placing any structure or
building improvement on an exclusive use area must seek and obtain an
extension
of his section in terms of
section 24
of the STA.
Section
24
(3) of the
Sectional Titles Act further
provides that if
authorised in terms of section 5(1)(h) of the Schemes Management Act,
an owner who proposes to extend the boundaries
of the floor area of
his/her section must submit a draft sectional plan of the extension
to the Surveyor-General for approval.
[74]
In a nutshell, in terms of the Schemes Management Act, and
Sectional
Titles Act, where
an owner of a section in the body corporate wishes
to extend, her/his section the following steps must be taken:
74.1 She/he must
apply to the body corporate:
74.2 The body
corporate must consider and vote in the application;
74.3 If the body
corporate votes by special resolution to extend the section, the
presentation of a sectional plan of the
section, the preparation of
sectional plan of the extension for presentation to the
Surveyor-General must follow;
74.4 The
Surveyor-General must consider the application and approve or reject
it.
At
this stage, no consent is required from the municipality.
[75]
Regarding the special resolution to be taken by the body corporate,
it is required that the notice
of the aforesaid meeting must contain
the agenda of the meeting, specifying the proposed wording of the
resolution. Section 6 (2)
of the Schemes Management Act provides that
at least 30 days written notice of the meeting, in which the proposed
resolution is
specified, must be given to all members of the scheme
and such a notice must be delivered by hand to a member, dispatched
to by
prepaid registered post to the address of the member’s
section in the relevant scheme, or sent by prepaid registered post
to
a physical address in the Republic of South Africa that a member has
chosen in writing for the purpose of such notice. Both
the Schemes
Management Act and the STA provide in addition thereto, that any
notice may be sent to a member by fax or email.
[76]
In terms of
section 6(5)
to
7
of the
Sectional Titles Act, a
member
may be represented by proxy at such a meeting and where votes are
being calculated in value, each member’s vote is
calculated
either (a) as the total of the quotas allocated to the sections
registered in that member’s name, or (b) in accordance
with a
rule made in terms of
section 10
(2), whichever is applicable.
Evaluation
[77]
In evaluating the first two issues for determination, namely, whether
the first respondent authorised
the construction of a garage on
section 1
at its annual general meeting held on 10 September 2007,
and approved the extension of the applicant’s unit into the
garden
area allocated to him as his exclusive area at its annual
general meeting held on 19 February 2013, it is necessary to revert
to
the factual matrix as borne out in the affidavits. It was
contended on behalf of the applicant that the facts establish that
the
second respondent authorised and approved the extensions proposed
by the applicant. Counsel for the respondents on the other hand
argued that the extensions sought by the applicant could only be
approved by way of a special resolution, and the applicant in
seeking
them did not comply with the prescribed procedure in that he did not
give any notice, whether in writing or otherwise indicating
that he
would seek an extension of his unit. More specifically in relation to
the 2007 application to construct a garage, the respondents
contend
the applicant never made a formal application and the approval
granted by the body corporate was only in principle. The
respondents
also suggest that the applicant in any event obtained the approval by
unlawfully using the proxy of the second respondent.
[78]
Insofar as the 2007 application by the applicant to construct a
garage, it is not in dispute
that he was granted the requisite
approval by the body corporate. The papers do not show that there was
any dissensus amongst the
members of the body corporate with regard
to the manner in which they were served and received the applicant’s
application.
It is not difficult to understand why this was the case
because the evidence of the third respondent to the effect that the
scheme
rules were not particularly enforced, and the issues of
extensions were dealt with on an informal basis is uncontroverted. In
addition,
the applicant’s approval to construct a garage was
reaffirmed in the subsequent annual general meeting of 23 April 2014.
I consider it quite disingenuous of the fourth respondent to raise
the issue of notices when the minutes of subsequent meetings
do not
reflect that it was ever his, or any of the respondents’
concern that the applicant’s notices were defective.
This is
the case even at the stage the applicant’s alleged right to
construct the garage was confirmed after the body corporate
resolved
at the 2011 annual general meeting to have the scheme resurveyed in
order to regularise the position relating to extensions
by section
owners. One understands that at that stage the fourth respondent was
not a member of the body corporate as he subsequently
became a member
on 12 February 2014. However, he deposed to the answering affidavit
on behalf of the other respondents who were
present and did not rise
an ire with regard to the applicant’s defective notice, on the
basis of which he was granted approval
to construct a new garage in
2007. But at the annual general meeting on 23 April 2014, the issue
of the approval of the adding
of a new garage by the applicant was
once again affirmed, albeit in principle. None of the respondents
protested that the very
premise on which the approval was granted was
defective.
[79]
One of the issues raised by the respondents is that the applicant
obtained the approval of his
plans for the construction of a garage
in 2007 by stealth in that he unlawfully used the proxy of the second
respondent. The applicant
in reply claims that the second respondent
is estopped from raising the complaint because he was present at
subsequent meetings
where his right was confirmed. I find it striking
that the respondents in the answering affidavit do not specifically
explain when
the second obtained knowledge that her proxy was used by
the applicant to achieve his ends. This I say because once again
there
is no indication that the second respondent took any steps to
nullify a decision based on a vote that was obtained by less than
worthy ways. It seems to me that she acquiesced to the illegality up
to the point where she wanted to use it as a weapon to discredit
the
applicant’s acquisition of the approval. I say this because the
applicant’s assertion to the effect that the second
respondent
was present at the subsequent meeting is uncontroverted. In my view,
it would have been important for the second respondent
to state
categorically that when she attended the annual general meeting,
wherein the applicant’s right to construct a garage
was
confirmed, that she was not aware of the fact that the applicant had
misused her vote without her consent. Nowhere in these
papers do the
respondents make a full disclosure of when the second respondent
obtained this information and what she did about
it. In the result, I
find this contention equally unmeritorious.
[80]
I now turn to consider the second issue for determination, namely,
whether first respondent authorised
and approved the extension of the
applicant’s unit into the garden area allocated to him as his
exclusive use area at its
annual general meeting held on 19 February
2013.
[81]
According to the applicant, at the annual general meeting held in
2013, he, through his wife,
sought approval to extend his section
into the garden area to build a second bedroom, bathroom, and make
changes to his section’s
kitchen. The minutes of the meeting
reflect that these changes were unanimously approved subject to
planning approval by the body
corporate and the local authority. The
respondents deny that the aforesaid approval by the body corporate
has any significant meaning.
According to their version the approval
was “
nothing more than an indication that any such proposed
extension would be considered once detailed proper plans [had] been
submitted”
, and that could only be done in terms of
section
24
, and that the applicant failed to comply with the requisite
formalities. The issue then turns to the interpretation of the
recorded
approval.
[82]
At the annual general meeting of 23 April 2014 the applicant’s
right to extend
section 1
and build a garage was unequivocally
acknowledged and endorsed as follows:
“
3.3
All units extended and changed except
section 1
, who still has the
right to do so, as well as building a garage as per previous
resolutions.”
It
must be mentioned that in the same meeting, the minutes reflect that
additions for a new garage and stairway for the applicant
was
approved in principle. In line with the understanding of the
respondents, the applicant during April 2017 provided the plans
to
the body corporate for the extension of
section 1
garden area. In the
same meeting, additions for a new garage and stairway for the
applicant was approved in principle. The minutes
reflect of the
informal meeting of 28 April 2017 show that the applicant circulated
architectural drawing outlining the extensions
to his unit. It is
plain from the evidence that the body corporate accepted the
applicant’s architectural plans notwithstanding
the fact that
the meeting at which they were presented became informal when the
managing agent resigned. The difficulty I have
with the fourth
respondent’s denial that the applicant’s plans were
approved on an informal basis and that decisions
taken at that
meeting were non-binding, is that shortly thereafter, the fourth
respondent made utterances to the applicant’s
wife which
demonstrate that his understanding to be at odds to what he has
attested to in the answering affidavit. In an email
to Ms Jackson
(the applicant’s wife), he said the following:
“
How are you
progressing on getting your construction plan approved? Do you have a
date in mind as yet when you intend to “break
grounds”
for your extension plans?”
The
aforegoing, even when interpreted restrictively, leaves no doubt that
the fourth respondent knew that the applicant was getting
construction plans, which he could not apply for without first
obtaining the approval of the body corporate. Put differently, it
is
difficult to comprehend why the fourth respondent would contemplate
the applicant’s “breaking of ground”,
if, as he
alleges, there never was a formal approval of the extensions by the
body corporate. As correctly contended by counsel
for the applicant,
a conclusion that the fourth respondent understood that the body
corporate had granted its approval, even if
informally, and that the
next step was naturally the approval by the local council and,
thereafter construction, is inescapable.
Furthermore, it is in my
view, disingenuous of the fourth respondent to now claim that the
decisions of the informal meeting were
not binding, because at a
formal annual general meeting on 7 December 2017, and in his
presence, minutes of the informal meeting
of 28 April 2017 were
formally approved and adopted.
[83]
I now turn to consider whether the meeting of 2 August 2019 was
validly convened and its resolutions
binding.
[84]
It was contended on behalf of the respondents that the applicant is
not entitled to the relief
that he seeks because he did not comply
with the necessary procedures and requirements prescribed by the
Schemes Management Act
and Management Rules of the first respondent
in seeking approval of the 2019 plans at the special general meeting
which was to
be held on 26 July 2019, but was reconvened for 2 August
2019. According to the respondents, this is so because the notice of
such
meeting did not stipulate the wording of any special resolution
proposed to be adopted at such meeting. Therefore, so goes the
contention, such meeting was not properly convened, and any alleged
resolutions taken thereat, purporting to grant the applicant
the
right to extend his unit in accordance with the 2019 plans, is void.
The applicant in his replying affidavit averred that,
he mistakenly
attached to his founding affidavit the wrong resolution. In his
replying affidavit, he attached what he claims is
the correct
resolution stipulating that he was seeking approval of his 2019
plans. By attaching the resolution to his replying
affidavit, the
applicant effectively introduced new evidence.
[85]
It is trite that all necessary allegations upon which the applicant
relies must appear in his
founding affidavit, as he generally will
not be allowed to supplement the affidavit by adducing supporting
facts in a replying
affidavit. In
Mostert and Others v FirstRand
Bank Ltd t/a RMB Private Bank and Another
2018 (4) SA 443
SCA,
the court restated the principles as follows:
“
[13] It is
trite that in motion proceedings affidavits constitute both the
pleadings and evidence. As a respondent has a right
to know what case
he or she has to meet to respond thereto, the general rule is that an
applicant will not permitted to supplement
his or her case in the
replying affidavit. This, however, is not an absolute rule. A court
may in the exercise of its discretion
in exceptional cases allow new
matter in a replying affidavit.
. . .
In the exercise of this
discretion a court should in particular have regard to (i) whether
all the facts necessary to determine
the new matter raised in the
replying affidavit were placed before the court (ii) whether the
determination of the new matter raised
in the replying affidavit will
prejudice the respondent in a manner that could not be put right by
orders in respect of postponement
and costs; (iii) whether the new
matter was known to the applicant when the application was
launched;(iv) whether the disallowance
of the new matter will result
in unnecessary waste of costs.”
[86]
In the matter at hand, all the applicant seeks is to introduce the
correct resolution, having
made the averments concerning it in the
founding affidavit. I do not envisage any prejudice to the
respondents if the introduction
of the resolution is allowed because
it does not purport to introduce new matter, nor does it amount to an
abandonment of the original
claim, thereby introducing a new cause of
action. After all, the respondents were, according to the applicant,
served with the
correct resolution, and it therefore cannot be said
that they have been caught unawares. I therefore hold that the
applicant is
permitted to introduce the aforesaid resolution. That
said, the permission granted to the applicant renders the
respondents’
contention that the notice of the meeting is void
because no resolution was attached nugatory.
[87]
The respondents have also raised the defence of waiver. They state
that even if it is accepted
the first respondent had granted the
applicant approval in 2017, he (the applicant) had “
abandoned
he Drawings [i.e the 2017 plans and replaced same with revised plans
in 2019”
, thereby waiving the rights he obtained in 2017.
What the respondents are suggesting is that this court should draw an
inference
that by ‘
abandoning’
the 2017 plans, the
applicant had waived his right to whatever approval he may have been
granted.
[88]
In assessing this contention, I find necessary to recapture the
factual matrix. It is common
cause that the applicant did not
implement the 2017 plans. The undisputed evidence establishes that in
anticipation of the birth
of their child, the applicant and his wife
in 2018 reconfigured the 2017 plans in order to change the internal
arrangement of the
extended apartment, and on 10 June 2019, he
presented them to the managing agent. The second and fourth
respondents objected to
the plans but as the evidence reveals, on 2
August 2019, the special general meeting was reconvened but was
attended by the applicant,
his architect, and the third respondent
only. The plans were signed off by the third respondent and the
minutes emailed to the
respondents. The reconvened meeting was held
on 19 October 2019 and it was adjourned without a decision or a vote
on the applicant’s
plans. Thus, the present application.
[89]
The principle of inferred waiver is explained in Christie,
The Law
of Contract
at page 511as follows:
“
Having gone to the
trouble to acquire all the contractual rights, people are, in
general, unlikely to give them up. There is therefore
a presumption,
even a strong one against waiver. That means not only that the onus
is on the party asserting the waiver to prove
it, but that although,
as in all civil cases, the onus may be discharged on balance of
probabilities. It is not easily discharged.
In
Hepner
v Roodeport-Maraisburg
Town
Council, Steyn CJ, said:
There is authority for
the view in the case of waiver by conduct, the conduct must leave no
reasonable doubt as to the intention
of surrendering the right in
issue (
Smith v Momberg
(1895) 12 SC at p 304;
Victoria
Falls and Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd
1915 AD 1
, at p 62) but in
Martin v Kock
1946 (2) SA 719
(AD)
at p 733 this court indicated that that view may possibly require
consideration. It sets, I think, a higher standard than
that adopted
in Laws v Rutherford 1924 AD at p 263, where Innes CJ says:
“
The
onus
is strictly on the
appellant. He must show that the respondent, with full knowledge of
her right, decided to abandon it, whether
expressly or by conduct
plainly inconsistent with an intention to enforce it.”
(footnotes omitted)
[90]
In
Road Accident Fund v Mothupi
2000 (4) SA 38
(SCA), Nienaber
JA, reviewing the requirements of inferred waiver, stated that:
“
[16] The
test to determine intention to waive has been said to be objective.
That means, first, that intention to waive, like
intention generally
is adjudged by its outward manifestations, secondly, that mental
reservations not communicated, are of no legal
consequence and,
thirdly. That the outward manifestations of intention are adjudged
from the perspective of the other party concerned.”
(authorities omitted)
[91]
In the instant case, it is difficult to infer that the applicant had
waived his right to rely
on the 2017 plans when regard is had to the
facts of this matter, namely, that the configuration of the extended
apartment was
only internal. Furthermore, on 10 June 2019, the
applicant presented them to the managing agent. There is no evidence
to suggest
that what was configured had an impact on the external
outlook of the plans, and that in my view infers that the original
plans
or intention remains intact. I am not persuaded that the
applicant’s conduct of presenting the revised plans is
inconsistent
with waiver.
[92]
The second and fourth respondents objected to the plans but as the
evidence reveals, on 2 August
2019, the special general meeting was
reconvened, but was attended by the applicant, his architect, and the
third respondent only.
The plans were signed off by the third
respondent and the minutes reflecting same, emailed to the
respondents. The reconvened meeting
was held on 19 October 2019 and
it was adjourned without a decision or a vote on the applicant’s
plans. Thus, the present
application.
[93]
The respondents contend that the applicant’s right to extend
his unit in the sectional
title scheme prescribed because on his own
version, the aforesaid right arose on 10 September 2007. According to
the respondents,
all the applicant’s rights to extend his
section, if any, have long prescribed, even it may be argued that the
first respondents
acknowledgement or admission of such alleged rights
at the annual general meeting held on 23 April 2014 interrupted the
running
of prescription in terms of section 14 of the Prescription
Act 68 of 1969 (“
Prescription Act&rdquo
;). Furthermore, so goes
the argument, even if the first respondent had approved the plans at
a meeting on 28 April 2017, thereby
interrupting the running of
prescription, it (prescription) had already been completed by that
time.
[94]
The applicant counters this contention by stating that the body
corporate granted its approval
at the December 2017 annual general
meeting, and the notice of motion was issued in September 2020,
within three years.
[95]
What must first be determined is whether the right to act upon an
approval to extend a unit in
a sectional title is a debt within the
meaning of
Prescription Act to
which a prescriptive period of three
years applies. In
Makate v Vodacom Ltd
2016(4) SA 121 (CC) at
paragraph 92, the court held that ‘debt’ in the
Prescription Act means
‘
an obligation to pay money, deliver
goods, or render services’
and that a debt does not extend
to a general “
obligation to do something or refrain from
something’
. I am not convinced that the rights conferred on
the applicant by the approval of his plans, by their nature, were
debts, which
prescribed. This I say because the granting of approval
to extend a section does not create an obligation on the applicant to
do
so.
[96]
Even if I may be wrong in finding that the approval of the
applicant’s plans to extend
his unit does not constitute debt
as envisaged in the
Prescription Act, on
the factual level, as
correctly contended by counsel for the applicant, the approval has
not prescribed. This then turns into a
factual enquiry of precisely
when can it be said that the approval was granted by the first
respondent. The contention proffered
by the respondents is that it
was granted on 28 April 2017, which means that by the time this
application was moved in September
2020, a period of three years had
lapsed. However, the fourth respondent earlier on in the answering
affidavit bemoaned the fact
that the plans approval the meeting
whereat the plans were approved was an informal meeting due to the
abrupt resignation of the
managing agent, and as such “
members
did not intend any binding decision to be taken
”.
Therefore, according to their version, the decision taken at the
informal meeting has no force and effect. It is undisputed
that the
minutes of the informal were approved and adopted in the annual
general meeting of 7 December 2017. Flowing therefrom,
it is plain
that the formal approval was given when the minutes of the informal
meeting were approved and adopted. The respondents
cannot approbate
and reprobate. On the one hand, they state that the decisions taken
in the formal meeting were not intended to
bind members of the body
corporate, but when pleading prescription, they recognise them as
binding. It is my judgment that at the
time when the notice of motion
was issued, the running of prescription had not commenced and would
only do so on 7 December 2020.
The
Rule 7(1)
application
[97]
The applicant seeks costs of suit against the respondents, jointly
and severally, save that insofar
as the costs arising from opposition
or incurred by the body corporate, such costs should not be
recoverable from the applicant
and the third respondent. In
considering the question of costs against all the respondents, I must
first determine whether the
first respondent is properly before
court. As earlier alluded to, in the summary of the parties’
affidavits, the applicant
on 27 November 2020, filed a notice in
terms of
Rule 7(1)
disputing the authority of J C Van der Walt
attorneys to act on behalf of the first respondent, and the authority
of the first
respondent to oppose this application. The applicant
alleges that the respondents, by appointing J C van der Walt
attorneys acted
ultra vires
as the costs incurred would exceed
the amount of R15 000, which is the limit of the amount the trustees
are permitted to incur.
Furthermore, because the body corporate has
not lawfully resolved to oppose the application, no costs order may
be made against
it.
[98]
The respondents do not dispute that the trustee’s powers are
limited in that they may not
take any decision that may entail
incurring an expenditure of more than R15 000.00. It is also
undisputed that J C Van der Walt
attorneys’ disbursements total
an amount of R84 527.50. It will also be recalled that the fourth
respondent deposed to the
answering affidavit on behalf of all the
respondents.
[99]
In response to the
Rule 7
(1) notice, the respondents attached a
resolution signed by the fourth, fifth and sixth respondents. It
reads thus:
MERRIMAN COURT BODY
CORPORATE
TRUSTEE RESOLUTION
4 November 2020
In term of the Prescribed
Management Rules of the Sectional Titles Act, 1986 (Act 95 of 1986),
per PMR 31(4), we, the trustees are
raising a special levy upon the
owners of the Merriman Court Body Corporate to pay for legal fees,
which were not included in the
current budget. The body corporate is
being sued in the High Court, & has a fiduciary responsibility to
defend itself, hence
the special levy.
The amount of R84,527.50
is to be paid by participation quota (PQ) per the attached schedule.
The special levy will be
charged in the December 2020 levy statements, & the owners have
been requested to make the payment
immediately.
The initial deposit of
R42,775 – which was paid out of funds due Wendy de Goede for
various payments made on behalf of the
body corporate. This amounts
needs to be recouped to ensure full payment is made per her
accountant’s schedule.
The initial payment of
R42, 752.50 needs to be re-couped to ensure the body corporate has
thus far funds to pay regular expenses.’
[100]
Rule 7 provides that where the authority of anyone acting on behalf
of a party is disputed,
such person may no longer act unless he
satisfies the court that he is authorised to act. In
Erasmus
Superior Court Practice
at B1-59, the following remarks are made:
“
The type of
authority contemplated by this rule means that the special type of
power which is given by a client to his or her attorney
to authorise
him or her to institute or defend legal proceedings on the client’s
behalf; it does not contemplate a general
authority by one person to
another to represent him or her in legal proceedings. If an attorney
acting for a party is authorised
to act, there is no need for ny
other person, whether he or she be a witness or someone who becomes
involved, to become additionally
authorised.”
[101]
It is common cause in these proceedings that it is a substantive
requirement of the body corporate that the powers
of the trustees be
limited to incur expenses of R15 000.00. This is, especially so, as
was held in
North Global Properties (Pty) Ltd) v Body Corporate of
the Sunrise Beach Scheme
(12465/2011) ZAKZD47 (17 August 2012) at
paragraph 12, because “
it impacts substantively on the
pockets of all members of the body corporate”.
It also is
undisputed that the decision to oppose the present application was a
decision to incur costs in excess of the previously
mentioned amount
as is evident from the invoice of J C Van Der Walt attorneys. The
fact that the trustee resolution of 4 November
2020 was not supported
by all members of the body corporate, is likewise uncontroverted.
Furthermore, the terms of restrictions
imposed on the trustees
specifically outline that it was not a decision which the trustees
could make, unless they had afforded
a notice to all owners advising
of the need to exceed the restriction and, in the event of
objections, holding a special general
meeting about the decision. In
this matter, it is not alleged that the trustees afforded a notice to
all owners advising them of
the need to exceed the restriction. It
follows that the decision to incur expenditure in excess of the
amount of R15 000.00 is
therefore
ultra vires
. (See
Steyn v
Blockpave
2011 (3) SA 528
at 533 paragraph 24). Likewise, the
arbitrary decision by the three trustees, fourth, fifth and sixth
respondents to accept payment
by the fifth respondent of the initial
deposit of R42,775 – on behalf of the body corporate is equally
ultra vires
to the extent that it does not enjoy the support
of members of the body corporate.
[102]
It therefore is plain form the aforegoing that the instructions to J
C Van Der Walt attorneys was irregular. The
corollary of these
findings is that the first respondent is not properly before court
and therefore may not be mulcted with costs
of this application.
Neither can it recover costs it incurs from the applicant and the
third respondent in relation to this application.
Conclusion
[103]
In this application, the applicant seeks an order compelling the
respondents to consider his requests for approval
of his 2019 plans
for construction. In addition, he seeks a declaratory order to the
effect that he is permitted to implement his
plans allegedly approved
in 2017 for the extension of his unit, section 1 of the scheme. I
have in this judgment held that in 2017
the body corporate approved
the applicant’s plans by adopting the minutes of the resolution
in terms of section 5(1) of the
Schemes Management Act, approving
same in April 2017. The inevitably result of this finding is that the
applicant has established
his right to an order entitling him to
implement the 2017 plans. Insofar as the 2019 plans are concerned, I
have found that the
plans constitute an internal configuration of the
extended apartment and that such configuration does not amount to the
waiver
of the applicant’s approval obtained in 2017. As to the
respondents’ claim of prescription, I have found that both on
the facts and on the law, the approval of the plans has not
prescribed. Finally, I have held that the first respondent is not
properly before court as the resolution which purports to extend the
restriction of the amount of R15 000.00 on the costs incurred
is
ultra vires
as members of the body corporate were not
consulted. In similar vein, I have held the appointment of J C Van
Der Walt attorneys
to be irregular. It follows that in the light of
the success of the applicant’s application, the costs should be
borne by
the second, the fourth, the fifth and the sixth respondents
jointly and severally, the one paying, the other to be absolved.
Order
[104]
In the circumstances, the following order is issued.
104.1
The respondents are directed to consider the applicant’s
request for approval of his plans for construction by way of the
extension of section 1 of the Merriman Court Sectional Title Scheme
attached to annexure JWG 15 of the founding affidavit.
104.2
It is declared that the applicant is permitted to implement
his 2917
plans for construction by way of the extension of section 1 of the
Merriman Court Sectional Title Scheme, which are attached
as annexure
JWG13 to the founding affidavit.
104.3 The second, fourth,
fifth and sixth respondents shall be jointly and severally liable for
the costs of this application, the
one paying, the other to be
absolved.
NDITA;
J
JUDGE
: NDITA, J
JUGDMENT
DELIVERED BY
: NDITA, J
FOR
APPLICANT
: Adv. R G
PATRICK
FOR
RESPONDENT
: Adv. D VAN
DER MERWE
DATE
OF HEARING
: 21 April 2021
DATE
OF JUDGMENT (Reasons)
:
15 SEPTEMBER 2021