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[2016] ZAGPJHC 100
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Meyersdal View Homeowners Association NPC v Galanis and Another (2015/14416) [2016] ZAGPJHC 100 (13 May 2016)
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2015/14416
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
MEYERSDAL
VIEW
HOMEOWNERS
Applicant
ASSOCIATION
NPC
And
GALANIS
GEORGE
First
Respondent
GALANIS
DESPINA
Second
Respondent
JUDGMENT
RATSHIBVUMO
AJ
:
1.
Introduction:
This is an application by a home
owners association against one of their own, the Respondents, who are
co-owners of an immovable
property located within Meyersdale Nature
Estate, Ext [....]. The applicant seeks an order,
1.
“
Declaring that the Respondents are
registered owners of Erf [....], Meyersdal Nature Estate Ext [....],
Ekurhuleni Metropolitan
Municipality, Gauteng, are members of the
applicant;
2.
Declaring that the Respondents, as
registered owners of Erf [....], Meyersdal Nature Estate Ext [....],
Ekurhuleni Metropolitan
Municipality, Gauteng, are bound by the
Memorandum of Incorporation (hereafter referred to as “MOI”)
of the Applicant;
3.
Declaring that the Respondents, as
registered owners of Erf [....], Meyersdal Nature Estate Ext [....],
Ekurhuleni Metropolitan
Municipality, Gauteng, are bound by the
Architectural Design and Building Rules and Building Contractor Rules
as adopted by the
applicant;
4.
Declaring that the Respondents are obliged
to comply with the Architectural Design and Building Rules and
Building Contractor Rules
as adopted by the applicant;
5.
Directing the Respondents to remove the
black piping solar system installed at their property, situated at
Erf [....], Meyersdal
Nature Estate Ext [....], with physical address
at 4 Squirrel Close, Meyersdal Nature Estate, Alberton, Gauteng;
6.
Costs of this application;
7.
Further and/or alternative relief.”
2.
The first 4 prayers as
per Notice of Motion are not opposed. It is the fifth prayer and
obviously the prayer as to costs that are
fiercely contested. The
application is therefore on the opposed roll because of prayer 5. For
this reason, costs should follow
suit in respect of this prayer as
opposed to other uncontested applications.
3.
Background
:
It is common cause that the Respondents, being a husband and a wife
became the co-owners of a property, ERF [....] at Meyersdale
Nature
Estate, Ext [....] in 2004. Following a request by the Second
Respondent directed at the applicant in February 2008, the
Respondents installed the black solar heating pipes or panels on the
roof of their property, for swimming pool heating. It is again
common
cause that at that stage, there was no provision in the MOI regarding
the installation of solar heating panels.
4.
A provision regarding
solar heating pipes was only added to the MOI following a Special
General Meeting of home owners held on 27
August 2012. This meeting
was attended by 17 home owners (including those who attended through
proxies) and constituted a quorum
– 25 % or more. The
Respondents were not part of this meeting. Following this approval,
the new rules in the MOI provided
under Rule 8.1.1:
“
[S]ubject
to any restriction imposed or direction given at a general meeting of
a company, the directors may from time to time,
make, add to, amend,
repeal or suspend rules regarding:
the
design, building and aesthetic control of any improvement
to
be erected
on the freehold
residential erven and/or existing dwellings and/or the open spaces
and/or any facilities which may exist on the
property which are
intended for the general use, enjoyment and amenity of the members…”
[
own emphasis
]
5.
Again, under
Aesthetics, the following is provided for under 10.1.5,
“
[N]o
member
may install
television, radio aerials, satellite dishes or solar heating panels
which are exposed to view from any building on the estate,
without
the
prior
written approval of the company.” [
own
emphasis
]
6.
Following the amended
rules in MOI, the applicant wrote several letters to the Respondents
demanding the dismantling of the solar
panels on their property. In
protest, the Respondents voiced a concern over the cost associated
with dismantling them. The Second
Respondent went further to remind
the applicant of the oral approval given to her by the applicant’s
chairperson, one Deon
Coetzee (the Chairperson), some four years
before the rules were passed or amended. It is not disputed that the
Second Respondent
approached the Chairperson and other directors in
2008, as they held an informal meeting asking if she could install
the said panels.
There is dispute on whether the chairperson granted
her the approval. The Second Respondent alleges that she was granted
the approval
to install them whereas the chairperson of the applicant
alleges that he informed her that the rules were yet to be developed
in
that regard.
7.
Issues for
determination:
The
court is called upon to decide if the disputed fact (i.e. whether
approval was given to the Respondent or not) is relevant to
the
relief sought by the applicant and if the application can be decided
on papers without oral evidence. Further to this, the
court has to
make a finding on whether the MOI rules apply retrospectively and/or,
if they do, whether they are fair and reasonable.
In essence the
question is whether the demand of the Applicant that the Respondents
dismantle the solar pipes, is based on proper
interpretation of the
rules? If not, is the said interpretation binding on the Respondents?
8.
Dispute of fact:
The Respondents aver that oral
approval for them to install the solar panels was granted by the
Chairperson. The Chairperson confirms
that the Second Respondent
approached them in 2008 as they held a meeting, requesting an
approval to install the Greek satellite
dish and solar panels on the
roof. He alleges that he advised her that in respect of the solar
panels, the rules were yet to be
formulated and that she should wait
until such formulation so she could bring the application in
writing.
[1]
This dispute of fact was made known to the applicant before issuing
the Notice of Motion on 17 April 2015.
[2]
9.
The mere fact that
there is a dispute of fact does not necessarily mean that the matter
should be referred for oral evidence or
that the application should
be dismissed. The approach to disputed facts in applications is well
established. In
Stellenbosch
Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd
[3]
,
Van Wyk J (writing for the full bench) held, "... where there is
a dispute as to the facts a final interdict should only
be granted in
notice of motion proceedings if the facts as stated by the
Respondents together with the admitted facts in the applicant's
affidavits justify such an order... Where it is clear that facts,
though not formally admitted, cannot be denied, they must be
regarded
as admitted.”
10.
This approach found
approval by the Appellate Division as it then was in
Plascon-Evans
Paints LTD v Van Rebeeck Paints (PTY) LTD
[4]
when Corbett JA
held,
“
It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant's affidavits which have
been admitted by the
Respondent, together with the facts alleged by the Respondent,
justify such an order. The power of the
Court to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances the
denial by Respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or
bona fide
dispute
of fact.”
This
rule has been applied over the years and was recently applied in
South African
Airways SOC v BDFM Publishers (PTY) LTD and others
[5]
when
Sutherland J held in favour of the Respondents when there was a
dispute of fact.
11.
Counsel for the
applicant must have had this in mind when she submitted that ‘it
does not matter whether the Respondents were
or were not given oral
permission to install the solar heating panels…” As the
applicant seeks final relief by way
of motion proceedings, disputes
of fact on the papers must be determined if the facts stated by the
First Respondent together with
the admitted facts in the applicant’s
affidavits, justify the order sought unless the Respondents’
version can be rejected
on the papers.’
[6]
The application of the Plascon-Evans test to this application entails
that viewed in its totality; the applicant would be entitled
to the
relief sought despite the dispute raised by the Respondent. The
applicant submits that this is the case. The court holds
a different
view in that once it is presumed that the Respondents were granted
the approval – albeit oral, it cannot just
follow automatically
that such approval can just be revoked without any basis or a
consideration on its fairness.
12.
Administrative
action by the applicant.
It
follows from the above that it should instead be considered on
whether revoking the approval is an administrative act which in
terms
of section 33 of the Constitution of the Republic of South Africa,
Act 108 of 1996 (the Constitution) should be lawful, reasonable
and
procedurally fair.
[7]
The Promotion of Administrative Justice Act defines administrative
action as
“
any
decision taken, or any failure to take a decision, by –
(a)
An organ of state when –
(i)
Exercising a power in terms of the
Constitution or a provincial constitution; or
(ii)
Exercising a public power or performing a
public function in terms of any legislation; or
(b)
A natural or
juristic
person other than an organ of state when exercising a public power or
performing a public function in terms of an empowering
provision,
which
adversely affects the rights of any person
and
which has a direct, external legal effect…” [
own
emphasis
]
13.
The
Constitutional Court held in
Walele
v City of Cape Town and Others
[8]
,
that
“
There
can be no doubt that when approving building plans, a local authority
or its delegate exercises a public function constituting
administrative action …” In
South
African Jewish Board of Deputies v Sutherland NO and others
,
it was equally held that the First Respondent’s decision in
terms of para 1.16 of the Complaints Procedures (the Complaints
and
Adjudication Procedures determined by the Broadcasting Monitory and
Complaints Committee (BMCC) pursuant to the powers contained
in it by
s 63(5) of the Independent Broadcasting Authority Act 153 of 1993,
and published under Government Notice 779 of 2002 in
Government
Gazette 23444 of 22 May 2002) to refuse to convene a formal hearing
to consider the complaint amounted to ‘administrative
action’
for the purposes of s 33 of the Constitution.
14.
The applicant
does not address the fairness of this administrative action it took
in revoking the approval that the Respondents
claim they were
granted. It is however submitted that whether the same was given or
not, once the decision was taken to have the
rules requiring the home
owners not to install solar panels without written approval, the
Respondents are bound to remove theirs.
The fairness of this
administrative act is challenged by the Respondents in that they were
not consulted when such a decision was
taken. They are further
concerned that while the rules were approved by 17 home owners who
are alleged to make over 25 %, he has
a petition signed by 40 home
owners who say yes to solar panels, which is way more than double the
17 who approved the rules.
[9]
It is common cause that other than being informed of the Special
General Meeting, no written reasons have been furnished to the
Respondents for taking this administrative action which is a drastic
measure, given the costs for dismantling and the possible
damages. As
demonstrated hereunder, this application also has to fail because it
is based on a wrong interpretation of the rules.
15.
Retrospective
application of the rules.
The
Respondents are vehemently opposed to the retrospective application
of the MOI rules. Understandably so, these rules were passed
4 years
after the installation of the panels on her roof. In
Bellairs
v Hodnet and Another
[10]
the
appeal court held
“
There
is a general presumption against a statute being construed as having
retroactive effect and even where a statutory provision
is expressly
stated to be retrospective in its operation it is an accepted rule
that, in the absence of contrary intention appearing
from the
statute, it is not treated as affecting completed transactions and
matters which are the subject of pending litigation
(
Bell
v Voorsitter van die Raskalssifikasieraad en Andere
1968 (2) SA 678
(AD);
Pinkey v Race Classification Board
and Another
1968 (4) SA 628
(AD); Steyn,
Uitleg van Wette
,
4th ed., pp. 86-92).”
Again
in
National Iranian
Tanker Co v MV Pericles GC
[11]
,
it was held,
“
There
is at common law a
prima facie
rule
of construction that a statute (including a particular provision in a
statute) should not be interpreted as having retrospective
effect
unless there is an express provision to that effect or that result is
unavoidable on the language used. A statute is retrospective
in its
effect if it takes away or impairs a vested right acquired under
existing laws or creates a new obligation or imposes a
new duty or
attaches a new disability in regard to events already past.”
16.
The Applicant argues
that even if the Respondents were allowed to install the panels as
they allege, they remain bound by the new
rules to the extent that
the new rules revoke the earlier approval. Counsel for the Applicant
aligns this submission with the decision
of this Court in
Bushwillow
Park Home Owners v Paulode Olioviera Fernandes
(unreported case by Sutherland J, case no. 2014/31526, Gauteng Local
Division – Johannesburg, 23 October 2015). In that judgment,
the Applicant sought for an order forcing the Respondents to repaint
their house, which was granted by the court. Reference is
made to the
fact that in the
Bushwillow
case, the rules were amended after a dispute between the parties,
following the Respondent’s offensive colours; before the
application was launched which unequivocally demanded that the
Respondents submit their painting colours to the Applicant for
approval.
17.
It is now argued that
the court accepted that the changed rules were binding even though
they were changed after the unwanted colour
painting. But this
argument ignores the finding of the court (Bushwillow
Park
Home Owners v Paulode Olioviera Fernandes
at para 3) where the court held that the amendment to the rules was a
mere amplification of what already existed and that it was
necessitated by the dispute with the Respondent. The Court found that
the rules binding the Respondent to alter their colours existed
before the amendment and it was based on the initial rules that the
order was allowed. This is unlike this case where it is common
cause
that no rule governing the installation of panels existed, until four
years after the Respondents had installed theirs. The
Bushwillow
case is further distinguishable in that in the present case, there is
dispute on whether the Respondents were given oral approval
to
install them, which given the Plascon-Evans test detailed above, the
court finds in favour of the Respondents.
18.
Moreover, upon closer
observation of the MOI rules as per paragraphs 3 and 4 above, I am
satisfied that the same were not formulated
to apply retrospectively.
It would appear that those who formulated the rules were more
concerned about the future installation
of the solar panels than with
those who had already installed them. This is apparent in the
language used that impacts the future
installation of panels and is
silent on persons such as the Respondents. Even if hypothetically
speaking it was presumed that the
rules were articulated to cover the
past installations of solar panels, it would be a wrong
interpretation to conclude that they
provide for the dismantling of
the panels already installed as demanded by the applicant. In my view
the least the applicant could
have called on the Respondents to do is
to submit their application for approval since it is not the
installation that is prohibited,
but doing so without a written
approval.
19.
I am of the view that
it would be impossible for the Respondents to comply with the order
even if they wished because it is practically
impossible to get a
pre-installation written approval of what they already installed some
four years before the rule was passed.
The applicant should have
passed a rule that recognised that there are persons who already had
the solar panels installed so as
to cater for them. One cannot
exclude the possibility that those who passed the rules may have had
no issues with persons such
as the respondents who already had the
panels installed, hence the quietness of the rules pertaining to
them. That could explain
why for 4 years lapsed after the
installation and another 2, before the Respondents were sent the
first letter by the Applicant.
The court holds a view that the rules
as they stand were not properly interpreted.
20.
For the reasons stated
above, the following order is made:
20.1The
application is granted
in
respect of prayers 1, 2, 3 and 4 of the Notice of Motion (see para 1
above); which are unopposed by the Respondents.
20.2The
application is dismissed with costs in respect of prayer 5.
_____________________
T.V.
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Date Heard:
04 May 2016
Judgment Delivered:
13 May 2016
For the Applicant:
Adv. C Humphries
Instructed by:
AJ Van Rensburg Incorporated
Johannesburg
For the Respondent:
Adv. WB Boonzaier
Instructed by:
Zwiegers Attorneys
Johannesburg
[1]
See paragraph 10 to 13 of the applicant’s
founding affidavit.
[2]
See Annexure L, being an e-mail from the Second
Respondent to a member of the applicant dated 16 July 2014 in which
she alleges
“…we were originally given a go-ahead with
no other notion that there might be a change.”
[3]
1957
(4) SA 234 (C)
at 235E –
G.
[4]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at p. 634 para H.
[5]
2016 (2) SA 561
(GJ) at para 28
[6]
See para 25 & 28 of the applicant’s
heads of argument.
[7]
Sec 33 of the Constitution provides,
“
(1)
Everyone has the right to administrative action hat is lawful,
reasonable and procedurally fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has a right to be given
written reasons.
(3)
National legislation must be enacted o give effect to these rights,
and must-
(a)
provide for the review of administrative action by a court of
law or, where appropriate, an independent and impartial
tribunal;
(b)
impose a duty on the state to give effect to the rights in
subsections (1) and (2); AND
(b)
promote an efficient administration.
[8]
[2008] ZACC 11
;
2008 (6) SA 129
(CC) para 27.
[9]
See p. 207 of the bundle.
Actually
41 home owners signed the petition but one of them wrote both “yes”
and “no” instead of choosing
one.
[10]
1978 (1) SA 1109 (A) at p. 1148
para F-G
[11]
1995 (1) SA 475 (A) at 483H-I