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[2015] ZAGPJHC 250
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Bushwillow Park Home Owners v Fernandes and Others (2014/31526) [2015] ZAGPJHC 250 (23 October 2015)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO 2014/31526
DATE:
23 OCTOBER 2015
In
the matter between:
BUSHWILLOW
PARK HOME
OWNERS
............................................................................
Applicant
AND
PAULODE
OLIOVIERA
FERNANDES
...................................................................
First
Respondent
LUISA CRISTINA
NASCIMENTO ABREU FERNANDES
...............................
Second
Respondent
JUDGMENT
HEADNOTE
Representative
committee of a housing estate applied to enforce its authority under
the rules of the homeowners association
The
rules of the association stipulated that, among other matters, home
owners were all bound by the rules of the association –
committee contending that the rules, properly interpreted provided
that prior permission was required for a choice of exterior
paint
colour to be applied to any building within the estate - such view
contested by respondents who had chosen to paint lime
green stripes
on their house
Held
that the rules did provide for such authority –
despite there being no rule saying in as many words that paint colour
had
to be approved before use, the rules were express and clear that
‘
All external finishes and
colours should be specified and colour samples may be requested’
meant that paint colour to be applied
to any building required such
approval – the fact that committee, after controversy arose,
procuring the association to amend
rules to have a rule stating in
the exact terms that paint colour had to be approved not evidence nor
a consideration that no such
authority existed beforehand
Held
that the respondents in violation of the rules
– committee’s demand to comply justified –
respondent ordered to
repaint in an approved colour
Held
that as to costs, the relevant
factors included the propriety of the committee asserting its
authority, and the inequity that would
result from a home owner
funded committee having to recover the costs of litigation caused by
the defiance of its authority by
one homeowner – attorney and
clients wholly appropriate in the circumstances
Sutherland
J:
Introduction
1.
The dispute between the parties is whether
the applicant, the governing body of the estate in which the
respondents own a home,
are vested with authority to approve or
disapprove the colour of the paint with which unitholders in the
estate may decorate their
homes. The respondents saw fit to paint
lime green stripes on their house. The applicant contends that it did
not authorise that
colour and demands the respondents repaint their
house in an approved colour. It is common cause that no
authority was given.
The applicant, in this application, seeks an
order, labelled an interdict, but in truth, an order of specific
performance of the
estate rules which, it is common cause, impose
obligations on the respondents as unitholders. The jurisprudential
controversy is
about whether or not the rules encompass a power given
to the applicant to determine the paint colour to be used on the
houses.
This case is therefore principally a case about
interpretation of those rules. What this case is not about, is
whether the choice
of lime green stripes is in good taste or not.
2.
It is common cause that, at the relevant
times, there was no rule which, in as many words, stated that a
unitholder must obtain
approval for the colour of paint and that the
applicant shall exercise a veto over the colour to be used on every
unit. Also common
cause is the content of the body of rules and
regulations applicable to the parties.
3.
After the dispute arose, the applicant
amended its rules to articulate a rule, in unequivocal terms, to
require its permission as
to a colour of paint to be used on every
unit. It was argued on behalf of the respondent that this decision by
the applicant amounts
to an implicit acknowledgement that no such
rule existed beforehand. I disagree. The fact that it was thought
prudent to eliminate
the possibility of further controversy over the
scope of the applicant’s authority is not evidence of a
concession that no
authority existed in any event. A similar
conclusion must be reached about the fact that the respondents ceased
to use the lime
green paint to paint any further parts of their house
once the applicant demanded they stop: that acquiescence is not
evidence
that the respondents concede that the authority contended
for by the applicant existed.
4.
There is no material dispute of fact that
affects the interpretation question. The parties are at odds
over peripheral events,
which may be ignored.
5.
The
approach to interpretation of contracts requires an examination of
the words chosen, within the context of the parties’
circumstances and relationship.
[1]
The
Bushwillow Park estate and its body of Rules
6.
The
estate consists of 591 plots upon which owners may build freestanding
homes. The estate is secured and gated. A condition of
ownership is
that the unitholder becomes subject to the authority of the applicant
in several prescribed respects. The relationship
between the
applicant and all the 591 unitholders is regulated by contract. Self-
evidently, the sum of their reciprocal rights
and obligations derives
soley from contract.
[2]
The
applicant is a representative body elected by all the unitholders.
Decisions made by the applicant, through its elected office-bearers,
are therefore made within the compass of conferred authority.
Axiomatically, the limits of such authority are determined by the
proper meaning to be given to the instruments which articulate that
authority.
7.
In this case the relevant instruments are
the Memo of Incorporation (MOI) of the applicant, the House Rules,
which address good
neighbourliness norms, and the architectural
guidelines, which address the structures erected within the estate,
their appearances,
and the sundry procedures in relation thereto.
8.
There is no room to debate the contention
that unitholders sacrifice a measure of freedom of choice about the
nature of their homes
or the uses to which the houses may be put
pursuant to these instruments. Typically, in such estate
developments, certain attributes
are often chosen to characterise the
estate. In some cases rigid uniformity is the organising
principle. In this case, uniformity
was not the norm, but rather, the
aesthetics were prescribed in general terms and a range of personal
choice was allowed, subject
to a veto by the applicant.
9.
Although not addressed expressly in any of
the instruments, the decisions of an estate governing body are
subject to the general
norms of reasonableness, and a court may
intervene to give relief against capricious decisions. The
considerations relevant to
that sort of controversy are wholly absent
in this case because the resistance to the prayers sought by the
applicant is founded
on absence of authority, not unreasonableness.
10.
MOI
1.1.3 empowers the applicant to prescribe guidelines applicable to
the design of ‘improvements’.
[3]
MOI 8.4 and 8.5 address the requirement for approvals prior to any
‘building operations’ and all ‘improvements’
must in terms of MO I8.3 comply with the architectural guidelines.
These guidelines encompass ‘…the specifications,
materials and finishes to be used’. The MOI 5.1.1 provides for
‘…aesthetic controls [in[ relation to improvements
…’
and MOI 5.1.2 authorises the applicant to vary or amplify these
guidelines in respect of, among others, ‘…exterior
finishes….’ The MOI 8.1 empowers the applicant to engage
an architect to control design matters, including ‘…the
specifications, material and finishes to be used in such erection as
well as all matters incidental thereto.’
11.
The architectural guidelines, alluded to,
are introduced by the statement that the design criteria set out are
compulsory.
The distinguishing character sought to be achieved
by the design criteria for the estate is described thus:
“
These
rules set out for prospective homeowners are the design criteria they
will have to comply with if they wish to build at Bushwillow
Park.
The rules have been developed to protect and maintain the unique
environmental and physical attributes of the property.
These
are characterised by simplicity, geometric and non-symmetrical order,
harmony and visual continuity and are visually set against
a simple
landscape background of lawns and trees. This is the underlying
vision for the architecture of Bushwillow Park.”
12.
Following that introduction, general rules
are provided in paragraph 2. Guideline 2.3 states:
‘
All
external finishes and colours should be specified and colour samples
may be requested’
13.
Guideline 2.3 is located in an extensive
set of ‘general rules’ addressing aesthetics. The
significance attached
to outward appearances by these general rules
is unmistakable. There are 36 outright prohibitions or peremptory
prescriptions.
Guideline 2.3 is the only one where a submission is
called for and the possibility of more detailed interrogation of the
unitholders
choice is stipulated.
14.
The critical question arises whether these
rules mean that a unitholder needs authorisation to choose a colour
of paint? The respondent
argues that they do not.
15.
Much
of the respondent’s counter-arguments are rooted in
considerations which are irrelevant. Reference has made to the
mechanics
of approval obtained when the respondents, some two and
half years earlier, bought an existing house and renovated and
altered
it. A dispute of fact is exists about what the respondents
were alerted to or not, at that time, about paint colours. The entire
episode about the submission of building plans is quite beside the
point at issue in this matter because it is unimportant whether
the
respondents were alerted or not to any approvals about paint colour
given at that time. There is a duty on a unitholder to
be aware of
the rules governing the estate: and if properly interpreted, they
were required to get authorisation of the paint colour,
that fact
ends the debate about their obligations. Both parties were distracted
by this tangent. A second red herring is the allegation
of
inconsistent application of the rule about paint colours requiring
authorisation, assuming such as rule existed; a fact not
established
on the papers, but in any event, is not a factor that can upset the
legitimacy of a demand to comply with the rule,
if such a rule
exists.
[4]
A third
irrelevancy is the absence of a stipulation in the guidelines about
what colours are acceptable. This line of argument
is misconceived.
The true issue is not about a prescribed range of colours of paint
that are acceptable, but rather, solely about
the authority to permit
or forbid a colour, at the discretion of the applicant.
16.
Ultimately, the respondents’ best,
and perhaps, only point, is that there is no
express
rule. However, this submission must fail for two reasons. First, the
text of the rules do indeed speak to control by the applicant
over
external aesthetics, and although the relevant rules might be accused
of a measure of obliqueness, in my view, a fair reading
of the rules
cited, leaves no doubt that unitholders are obliged to get their
paint colours vetted by the applicant. Second, the
context of the
estate ideal determines how to read the text of the rules; ie the
system in place in the estate is one of control
and oversight over
‘improvements’ including in relation to ‘finishes’
generally, and in guideline 2.3,
in respect of paint.
17.
The very concept of an estate, and
the imposition of controls, as illustrated in the provisions of the
various instruments cited,
cannot encourage in the mind of any
unitholder that there exists a freedom to do as one pleases with the
exterior of the house.
There is an overriding theme that the houses
must ‘fit in’ and individual choices are fettered by this
norm, and enforced
through the exercise of the discretion of the
applicant. What that means at the level of detail is to be discovered
by reading
the instruments. If hypothetical unitholders decide that
they wish to re-paint their house in a colour different to that
existing,
their attention must be drawn, by common sense, to the
obvious question: to what extent are they restricted, if at all?
They
cannot avoid asking themselves this question because the
norm of restrictiveness permeates the very concept of estate living.
this
estate, they might look at the instruments to see if a
paint colour is prescribed. They would find that it is not.
They would
however not be left under the impression that they had
carte blanche, because they would read, in the architectural
guidelines,
the injunction of guideline 2.3 cited above, not to
mention the other rules to which allusion has been made.
18.
Guideline 2.3 cannot, in such a context be
understood to mean anything but that unitholders may put forward any
colour they like
but the applicant shall have the last word.
19.
The respondent tries to deflate the
force of that rule, and the other related rules cited, as being
relevant only to the initial
phase of construction. The inspiration
to argue this stems from the phraseology employed, which, indeed, is
couched in a manner
of addressing the initial building work, and the
preparations in respect of its design and so forth. However, it would
be absurd
to understand that such strictures could apply only at one
time and not again. Whatever the peculiarities of the
terminology,
the imposition of control over what a unitholder may or
may not do to the exterior aesthetics of his home in an estate are
forever,
not just when the building is initially constructed. Equally
absurd would be to limit the imposition of control to ‘building’
work as distinguished from ‘painting’ on the footing that
the latter was merely ‘decorative’. The
critical
issue is inescapably the exterior aesthetics of every house. When the
text of the rules is read with the function that
the rules are meant
to fulfil in mind, and read within the context of the dynamics and
relationships of inhabiting an estate and
being regulated by an
elected governing body, in my view, there did indeed exist, at the
relevant time, a rule requiring prior
consent from the applicant
about the choice of a colour of paint.
20.
The respondent contends that an
interpretation such as that posited for the rule requiring such
authorisation would be a tacit term,
which, because that was not the
case put forward in support of the applicant’s claim, it would
be illegitimate to uphold
the applicant’s claim on that basis.
In my view, this problem does not arise, as the meaning to be
attributed to the text
of guideline 2.3 unequivocally subjects paint
colour to scrutiny by the applicant, through its agents. True enough,
the words ‘permission’
or ‘authorisation’ are
not used. However, notwithstanding the omission of such words, the
clear meaning of the phraseology
is that the colour must specified
and that it is subject to scrutiny. The scrutiny must be, logically,
integral to a decision to
approve or forbid, a control consistent
with the purpose of the guidelines, in the context of the dynamics of
estate living.
21.
The delay in bringing this dispute to a
head was invoked as a rationale for exercising a discretion to refuse
relief. The lime green
stripes were painted during September 2013.
After a fruitless exchange of correspondence, the application was
launched on
27 August 2014. The matter was heard in September 2015.
Accordingly, two years has elapsed since the saga began. That the
applicant
did not rush to court is, in my view, not a basis for
criticism. Moreover, as I have stated on several occasions in this
judgment
to emphasise one or another point, the dispute is about the
defiance of the applicant’s authority, a defiance which has
been
ongoing. In my view, there is no culpable delay evidenced by the
manner in which the matter has been dealt with, even though it
may be
regretted it has taken so long.
22.
Lastly the respondent contends that if
there be any room to misconstrue the rules, the
contra
proferentum
rule should be applied. In
my view, this need does not arise because there is no danger of
misconstruing the rules. Principally,
the problem of ambiguity does
not arise because the controversy is not about rival interpretations
being offered to construe an
admittedly ambiguous or vague provision
in respect of which, what exactly constitutes compliance is
uncertain. The respondent’s
case is that no such rule exists at
all. Further, the notion does not arise because, in my view, the rule
is clear. No risk exists
therefore, as cautioned in argument, on
behalf of the respondents, that the court might trespass into the
realm of making a contract
for the parties.
23.
It may also be mentioned that no question
of estoppel is ventilated.
24.
Accordingly, I find that a rule existed
that required prior express approval of a paint colour that could be
applied to the exterior
of the buildings in the estate. Such a rule
evidences a clear right by the applicant, as the guardian of the
rules, and of the
estate to enforce the rule. Defiance of the
applicant’s authority is a direct harm against which the
applicant is entitled
to procure relief to prevent or remedy.
Specific performance is the only cogent remedy to preserve the
integrity of the applicant’s
authority.
The
appropriate relief
25.
No sound reason exists why the respondents
should not be ordered repaint their house in a colour approved by the
applicant at their
own cost.
26.
It seems to me that a reasonable time
within which to undertake that project is 6 months from the date of
this order. That allows
enough time for an engagement between the
parties, and the solicitation of a contractor, if required, to
undertake the work.
27.
The parties’ antagonism towards each
other has been palpable. That is regrettable, especially because the
several individuals
shall have to continue to live with one another.
Moreover the intensity of their conduct in the litigation has
broadened the scope
of the controversy far more than the true issue
warranted. The real issue was in truth a clinical question about the
meaning of
the rules. It could have been resolved more cheaply by
focussing on that alone. Part of the reasons for this excessive zeal
seems
likely to be, one the one hand, a desire to clarify the scope
of the applicant’s powers and maintain the credibility of the
applicant’s authority to function effectively, and on the
other, sheer injured pride.
28.
It was argued that the respondents have
been bona fide throughout this saga. Moreover, it is argued in
support of that proposition
that a clear articulation of a basis for
the rule emerged only in the arguments advanced in the hearing on
behalf of the applicant.
It is unnecessary to decide the question of
bona fides. The question before the court is not a matter of, say,
negligence.
The issue is simply that the respondents have
wrongly denied a proven right of the applicant. They must now comply
with the legitimate
demands of the applicant.
29.
These are matters which are relevant to an
appropriate costs order. I am mindful that the any costs to be borne
by the applicant
shall have to be borne by all 591 unitholders. It
seems to me to be unfair that the community, at large, should have to
bear such
a cost. This is the overriding factor which inclines me to
a finding that the respondents, who, however bona fide they might be,
must pick up the bill for this case in full. The applicant points out
that the rules provide for attorney and client costs, a provision
dictated by the relationship of neighbourliness that ought to govern
all relationships among the 591 unitholders, and that whoever
is
responsible for burdening the unitholders with costs of litigation
should shoulder that burden. I am unable to reason
why that
result should not follow in this particular case. Indeed, the burden
of having to contribute to the funding of this litigation
on the
other 590 unitholders might well engender longer lasting and broader
enmity. This slate must be wiped clean.
The
Order
30.
I make an order as follows:
30.1.
The respondents shall within 180 days of
the date upon which this judgment is delivered, remove the paint that
was not authorised
by the applicant, and repaint the house in a
colour approved by the applicant at their own cost.
30.2.
The respondents shall bear the costs of
this application on the attorney and client scale.
30.3.
In the event that the order in paragraph
27.1 is not complied with, the applicant is given leave to apply for
further or ancillary
relief on these papers, duly amplified if
necessary, on three days’ notice to the respondent.
Roland
Sutherland
Judge
of the High Court,
Gauteng
Local Division.
Hearing:
11 September 2015
Judgment:
23 October 2015
For
Applicant:
Adv
M T A Costa,
Instructed
by Crafford Attorneys
For
Respondent:
Adv
M De Oliviera,
Instructed
by Gavin Simpson Attorneys.
[1]
Wallis
JA in Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA) at [18] – [19].
“
The
present state of the law can be expressed as follows: interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into
existence. Whatever the nature of the document, consideration must
be given to the language used in the light of the ordinary
rules of
grammar and syntax, the context in which the provision appears; the
apparent purpose to which it is directed and the
material known to
those responsible for its production. Where more than one meaning is
possible each possibility must be weighed
in the light of all these
factors. The process is objective, not subjective. A sensible
meaning is to be preferred to one that
leads to insensible or
unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert to, and
guard against, the temptation
to substitute what they regard as reasonable, sensible or
businesslike for the words actually used.
To do so in regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation; in a contractual
context it is to
make a contract for the parties other than the one they in fact
made. The ‘inevitable point of departure
is the language of
the provision itself’ read in context and having regard to the
purpose of the provision and the background
to the preparation and
production of the document.”
[2]
This
point was also made by Olsen J in Abraham & Ano v Mount
Edgecombe Country Club Estate Management Association two
(RF) (NPC)
JOL 32322 (KZD) at [23][.
[3]
The
term “improvements” I understand, in the context of
property developments, to refer to any human-driven work that
‘improves’ otherwise bare land to some use having value.
Typically, the establishment of buildings in their entirety.
[4]
See
Riverland Resort Shareblock (Pty) Ltd v L J Letschert ( KZN
2010/3724 25/04/2012 per Swain J at [27] – [28] where
it was
held that although a cause of action based on a capricious act
amounting to an unreasonableness capable of supporting
a
review of a body corporate’s decision could exist, where
that remedy is not sought, the mere fact of selective
enforcement of
a rule is no reason not to order enforcement.)