Brief Summary

Body Corporate — Access to common property — Application for access to conduct leak detection test — Body corporate seeking access to unit for inspection due to ongoing damp issues — Second respondent initially refusing access but later permitting inspection — Legal standing of body corporate to institute application questioned — Court finds that resolutions authorizing application were valid and properly ratified — Application granted, with costs awarded to the applicant.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an application brought in the High Court by a body corporate of a sectional title scheme seeking coercive relief in the form of a mandamus to compel access to a unit within the scheme for purposes of leak detection and inspection. The matter was initially enrolled and pursued as an urgent application, but ultimately only the question of costs remained for determination after the substantive relief became moot.

The applicant was The Body Corporate of the Sorronto Sectional Title Scheme, Parow (Scheme No: 377/1997). The respondents were Leozette Koordom (first respondent) and Wilfred Booysen (second respondent), who were associated with Unit 101 in the scheme. The dispute arose in the context of the body corporate’s management of scheme property and maintenance concerns connected to water ingress.

Procedurally, the applicant launched the application on 29 March 2021 on an urgent basis, seeking an order compelling the respondents to give access to Unit 101 within a short period so that a further leak detection inspection could be conducted. The matter was enrolled for hearing on 20 April 2021, but it was only heard on 30 April 2021, when the urgent application was struck off the urgent roll. Thereafter, the respondents permitted access and the inspection occurred, with the result that the substantive relief sought was no longer live. The court was therefore required to decide (i) an authority/locus standi challenge raised by the respondents and (ii) the appropriate costs order, in circumstances where the merits had become moot.

The general subject-matter of the dispute concerned water ingress/damp affecting one unit in the sectional title scheme, the body corporate’s efforts to obtain access to another unit to investigate a suspected source of leakage, and the appropriate forum and cost consequences where such disputes could have been pursued under the Community Schemes Ombud Service framework.

2. Material Facts

During October 2020, damp marks appeared on the ceiling of Unit 100 within the Sorronto sectional title scheme. The body corporate took steps to investigate, including seeking access to Unit 101 (associated with the second respondent) as part of efforts to identify the source of the damp. Access was eventually obtained and an inspection occurred on 11 November 2020, but no leaks were found in Unit 101 at that stage.

On 25 January 2021, the owner of Unit 100 reported to the body corporate that the damp problem remained unresolved. What followed was a period of repeated efforts by the body corporate (through its managing agents, loss adjusters, leak detection agents, and attorneys) to obtain further access to Unit 101 to conduct additional inspection and testing. The court treated it as significant that these attempts were unsuccessful for an extended period and that access was refused or delayed.

The respondents’ position, as reflected in the answering affidavit, was that a leak detection inspection had already been conducted in late November 2020 with a negative finding, and that there was therefore no basis for another inspection. However, the record ultimately reflected that the respondents later accepted that the body corporate was entitled to conduct reasonable inspections from time to time for proper management of the scheme’s common property, and they permitted access, whereafter a second leak detection test was performed. This rendered the primary access-related prayer in the notice of motion academic.

Two sets of trustee resolutions featured prominently in the authority dispute. A resolution dated 19 March 2021 was signed by two trustees on a round-robin basis, and a further resolution dated 20 April 2021 was signed by all five trustees. The respondents contended that the initial resolution was defective and that the application had been launched without proper authority.

By the time the matter was before Carter AJ, the only outstanding issue was costs, together with the preliminary question whether the applicant was properly authorised to have instituted the application.

3. Legal Issues

The central questions the court was required to determine were, first, whether the applicant had the requisite authority (locus standi) to institute the urgent application given the form and execution of the trustee resolutions relied upon. This was predominantly an issue of application of legal principles to largely common-cause facts, namely the content, timing, and signature of the resolutions and the manner in which trustee authority may be validly conferred or ratified.

Second, the court had to determine the appropriate costs order where the substantive relief had become moot, including whether and how the availability of dispute resolution through the Community Schemes Ombud Service (CSOS) should influence the exercise of the High Court’s discretion on costs. This involved a mix of legal principle (the relationship between the High Court and statutory dispute-resolution mechanisms, and the approach in prior authorities) and an evaluative discretion (what costs order would be just in light of the parties’ conduct and the appropriateness of the chosen forum).

4. Court’s Reasoning

On authority, the court rejected the respondents’ argument that the initial resolution was null and void because it was signed on a round-robin basis and not signed by the majority of trustees. The court reasoned that modern practice—particularly in light of the effects of COVID-19—recognises that trustees and similar governing bodies frequently meet virtually and execute documents through round-robin processes. The court did not accept that the absence of express mention of round-robin execution in the scheme’s management rules rendered such resolutions fatally defective.

The court placed weight on the scheme’s management rule framework, referring in particular to Regulation (5) of the management rules, which contemplates trustee meetings by “any other method”. The court considered that this language was broad enough to accommodate the method by which the trustees’ decision was taken and recorded.

In addition, the court considered Regulation 10(1)(b) of the statutory management rules, which addresses when documents signed on behalf of a body corporate are valid and binding, including signature requirements tied to trustee resolution authority. The court held that, in practice, a trustee resolution may take the form of a general or special resolution, and that it would not be invalid merely because it was labelled “special” or because of semantic disputes about wording. The court treated the first resolution as clear in intent and purpose: it authorised the launching of legal proceedings to obtain access for inspection, and the litigation was instituted through the managing agent who had been duly involved in the process.

The court further found that the second resolution signed by all five trustees on 20 April 2021 did not materially change the authority position, but instead confirmed and underscored the original authorisation. The court rejected the proposition that the later resolution showed that the first was defective, or that the second was merely “installed” to cure invalidity. The court approached the later resolution as a ratification/confirmation of steps taken, and relied on authority indicating that acts done without authority are not necessarily nullities and can be ratified.

In this regard, the court referred to Marais v City of Cape Town 1997 (3) SA 1097 (CPD) for the proposition that unauthorised action instituted on behalf of a litigant can be capable of ratification, and to Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA) for the principle that valid ratification generally requires an intention by the principal to confirm and adopt the unauthorised acts of an agent, expressed with knowledge of material circumstances or with the object of confirming the act in all events. On the papers, the court considered the evidence sufficient to show that trustees were aware of the decision to litigate and that the subsequent resolution confirmed the authority underpinning the proceedings. The authority challenge was therefore rejected and the applicant was held to have been duly authorised to bring the application.

On costs, the court first located the dispute within the broader context of community scheme dispute resolution. It noted that neither party appeared to have seriously pursued the possibility of approaching the Community Schemes Ombud for relief. The court accepted that the High Court retains jurisdiction, but it emphasised that there is an established body of authority recognising that certain disputes falling within the scope of the CSOS Act should, in the first instance, be brought before the Ombud through the statutory conciliation and adjudication framework.

The court relied particularly on Heathrow Property Holdings No 33 Close Corporation and Others v Manhattan Place Body Corporate and Others [2021] 3 ALL SA 527 (WCC), which held (as summarised in the judgment) that where disputes fall within the ambit of the CSOS Act, they should generally be referred to the Ombud first, and the High Court may be entitled or obliged to decline to entertain such matters as a forum of first instance absent exceptional circumstances. The court also referred to Prag N O v the trustees for the time being of the Mitchell’s Plain Industrial Enterprises Sectional Title Scheme Body Corporate 2021 (5) SA 623 (WCC) as part of the developing jurisprudence addressing the interaction between the Ombud’s jurisdiction and that of the High Court.

The court considered that the present dispute (access for inspection relating to water ingress and scheme management) was of a kind that fell within the dispute-resolution mechanisms available under the CSOS Act, and that there were no exceptional circumstances justifying resort to the High Court as a first instance. The court regarded it as significant that the earlier urgent enrolment had failed, because the matter was struck off the urgent roll, which reinforced the conclusion that the matter did not warrant extraordinary High Court intervention on an urgent basis.

The court also invoked Coral Island Body Corporate v Hoge 2019 (5) SA 158 (WCC), where it was stated (as summarised in the judgment) that while courts may not have the power to refuse to hear matters that could be brought under the CSOS dispute-resolution system, they should use their discretion in respect of costs to discourage inappropriate resort to the courts in matters that could more appropriately have been taken to CSOS. The court aligned itself with that policy concern, emphasising the social utility of a cheaper and more informal dispute-resolution mechanism and the risk that such a statutory scheme could be undermined if courts indiscriminately entertained matters better suited for CSOS processes.

At the same time, the court took account of the litigation history and party conduct. It noted that on 20 April 2021, the day before the matter was set down, the respondents made an unconditional settlement offer conceding the relief sought (save for costs and for the costs of the water ingress inspection), and that the applicant rejected that offer on the basis that the defence was frivolous and vexatious. The court also recorded that the respondents had pointed out to the applicant that the matter could be lodged with CSOS and criticised the use of body corporate funds for attorney-driven litigation in circumstances where the Ombud mechanism existed.

Against that background, the court treated the High Court litigation as having been manifestly inappropriately brought as a forum of first instance, and it expressed concern about the scale of the record and the costs consequences of opposed High Court proceedings for what was, in substance, a relatively narrow community scheme dispute. It referred to the policy warning against irresponsible litigation articulated in Limpopo Legal Solutions v Eskom Holdings SOC Limited [2017] ZACC 34, in the context of emphasising that litigants should respect court processes and avoid ill-considered litigation, even where the broader costs landscape may have changed in certain categories of cases.

The court’s ultimate approach to costs reflected an evaluative compromise driven by two considerations that it treated as simultaneously relevant: the applicant’s entitlement to pursue inspection access (which had been resisted and then conceded), and the impropriety of choosing the High Court rather than CSOS as the primary forum. Instead of awarding conventional High Court costs, the court limited the applicant’s costs to the tariff applicable to proceedings under the ambit of the Ombud, thereby discouraging resort to the High Court while still making an adverse costs order against the respondents.

5. Outcome and Relief

The court made no substantive order compelling access, because the respondents had by then permitted access and the further leak detection inspection had already taken place, rendering that relief moot.

On the preliminary point, the court found that the applicant was duly authorised to institute the proceedings, including on the basis that any initial defect alleged by the respondents was not established and, in any event, the later resolution signed by all trustees operated to confirm the authority underpinning the litigation.

On costs, the court ordered that the applicant was awarded costs limited to the tariff applicable to proceedings under the ambit of the Ombud. In addition, the respondents were ordered, jointly and severally, to pay the costs of KLS Consulting Engineers (Pty) Limited, with the one paying the other to be absolved.

Cases Cited

Marais v City of Cape Town 1997 (3) SA 1097 (CPD). Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA). Heathrow Property Holdings No 33 Close Corporation and Others v Manhattan Place Body Corporate and Others [2021] 3 ALL SA 527 (WCC). Prag N O v the trustees for the time being of the Mitchell’s Plain Industrial Enterprises Sectional Title Scheme Body Corporate 2021 (5) SA 623 (WCC). Coral Island Body Corporate v Hoge 2019 (5) SA 158 (WCC). Limpopo Legal Solutions v Eskom Holdings SOC Limited [2017] ZACC 34. S S v V V-S [2018] ZACC 5.

Legislation Cited

Community Schemes Ombud Service Act 9 of 2011. Promotion of Administrative Justice Act 3 of 2000.

Rules of Court Cited

No Uniform Rules of Court were cited in the judgment. The court referred instead to statutory and scheme governance instruments described as the Management Rules, including Regulation (5), Regulation 10(1)(b), and rule 11(1)(a).

Held

The court held that the applicant body corporate had been properly authorised to institute the application, rejecting the contention that the initial trustee resolution was invalid merely because it was executed on a round-robin basis or not signed by a majority. The later resolution signed by all trustees was treated as confirming and adopting the decision to litigate, consistent with principles of ratification in the litigation context.

The court further held that the dispute should not have been brought in the High Court as a forum of first instance because it fell within the scope of CSOS dispute resolution and no exceptional circumstances were shown. As a consequence, while the applicant was awarded costs against the respondents, those costs were limited to the scale applicable to Ombud-related proceedings, and the respondents were ordered to pay the costs of the leak detection consultants.

LEGAL PRINCIPLES

The judgment applied the principle that decisions by sectional title trustees may validly be taken and recorded through methods consistent with the applicable management rule framework, and that contemporary decision-making practices (including round-robin execution) are not, without more, inherently invalid where the rules contemplate meetings or decisions by broader methods such as “any other method”.

It applied and relied upon the principle that proceedings instituted without proper authority are not necessarily nullities and may be capable of ratification, provided there is a clear intention by the principal to confirm and adopt the act of the agent, either with knowledge of material circumstances or with an intention to confirm in all events. The court treated subsequent trustee confirmation as sufficient, on the papers, to demonstrate adoption of the litigation decision.

On costs and forum selection, the judgment applied the principle that where disputes fall within the statutory remit of the Community Schemes Ombud Service, such processes function analogously to internal remedies that should generally be pursued before approaching the High Court, absent exceptional circumstances. Even where the High Court has jurisdiction and may not refuse to hear the matter, it may exercise a costs discretion to discourage inappropriate resort to litigation and to promote the use of specialised, lower-cost statutory dispute-resolution mechanisms designed for community scheme disputes.

Body Corporate of the Sorronto Sectional Title Scheme, Parow v Koordom and Another (5439/2021) [2022] ZAWCHC 99; 2022 (6) SA 499 (WCC) (26 May 2022)