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[2014] ZASCA 220
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Willow Waters Homeowners Association (Pty) Ltd v Koka N.O. and Others (768/2013) [2014] ZASCA 220; [2015] 1 All SA 562 (SCA); 2015 (5) SA 304 (SCA) (12 December 2014)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 768/2013
In
the matter between:
WILLOW
WATERS HOMEOWNERS
ASSOCIATION
(PTY)
LTD
.....................................................................................................
Appellant
and
JERRY
SEKETE KOKA
NO
......................................................................................
First
Respondent
CATHERINA
ELIZABETH OOSTHUIZEN
NO
.................................................
Second
Respondent
TANIA
OOSTHUIZEN
NO
.......................................................................................
Third
Respondent
REGISTRAR
OF DEEDS,
PRETORIA
.................................................................
Fourth
Respondent
FIRSTRAND
BANK
LIMITED
.................................................................................
Fifth
Respondent
And
ASSOCIATION
OF RESIDENTIAL
COMMUNITIES
CC
..............................................................................................
First
Amicus Curiae
NATIONAL
ASSOCIATION OF
MANAGING
AGENTS
.......................................................................................
Second
Amicus Curiae
Neutral
citation:
Willow Waters Homeowners
Association (Pty) Ltd v Koka
(768/13)
[2014] ZASCA 220
(12 December 2014)
Coram:
Maya, Theron, Saldulker JJA and Mocumie and Gorven
AJJA
Heard:
15 September 2014
Delivered: 12
December 2014
Summary:
Land – whether a condition of
title in a title deed of immovable property which prohibits the
transfer thereof without a clearance
certificate or the consent of a
homeowner’s association constitutes a real or personal right –
whether the embargo
remains binding on the Master and trustees of the
property owners in sequestration.
ORDER
On
appeal from:
North Gauteng High Court,
Pretoria (Bam AJ sitting as a court of first instance)
1 The appeal is
upheld with costs including the costs of two counsel.
2 The order of the
court below is set aside and replaced with the following:
‘
The
application is dismissed with costs including the costs of two
counsel.’
JUDGMENT
Maya
JA
(Theron, Saldulker JJA, Mocumie and
Gorven AJJA concurring)
[1]
The central issue in this appeal is whether embargo provisions in a
title condition registered against the title deed of immovable
property preventing the transfer thereof without a clearance
certificate from a homeowner’s association
constitute
real or personal
rights. The North
Gauteng High Court, Pretoria (Bam AJ) held that the embargo is a mere
personal right which did not bind the trustees
of an insolvent estate
in whom ownership of the immovable property sought to be transferred
vested. Consequently, the court allowed
the fourth respondent (the
Registrar) to effect transfer of the property without a clearance
certificate from the appellant (the
association). The appeal is with
the leave of the high court.
[2]
The appellant, the Willow Waters Homeowners Association, (Pty) Ltd,
(the association) is duly incorporated in terms of s 21
of the
Companies Act 61 of 1973
[1]
in
respect of the Willow Waters Estate (the estate) in the estate of Van
Riebeeckpark Extension 26. Its membership comprises registered
owners
of property in the estate. All owners automatically assume that
status and are bound by the association’s Articles
of
Association and Rules until such ownership ceases.
[2]
The estate consists of 13 full title erven and one erf with communal
facilities. The association owns the communal facilities and
operates
the estate’s infrastructure including its roads, water,
electricity, sanitation, telecommunications network and
security
services as well as ingress and egress to the development for the
members’ benefit.
[3]
The association recovers its costs from the members by way of monthly
levies
[3]
as well as fines and
penalties for breaches of its rules.
[4]
No member is allowed to transfer his (perhaps ‘their’
then it is neutral gender) property until the board of trustees
has
certified that the member has at date of transfer fulfilled all
financial obligations to the association.
[5]
Furthermore, rule 2.5 entitles the association to refuse clearance of
a transfer in the event of any outstanding levies and penalties.
[4]
In 2006, Mr Christiaan Petrus van der Walt and his wife, Lourette,
jointly purchased one of properties in the estate, Portion
7 of Erf
2461 (the property), which had an incomplete dwelling, for a sum of
R900 000. They took transfer of the property
under Deed of
Transfer T06/99802 dated 8 August 2006. The Van der Walts
simultaneously caused a mortgage bond to be registered
over the
property as security for a loan of R1,6 million and an additional sum
of R320 000 in favour of Firstrand Bank Limited,
the fifth
respondent, which abides the decision of this court in the appeal.
[5]
In June 2006, the association had caused the Van der Walts to sign an
agreement in terms of which they bound themselves to its
rules,
regulations and guidelines. According to this agreement they would,
inter alia, submit building plans for the association’s
approval within two months and finalise the renovation of the
property as stipulated in the approved building plans within nine
months from its registration. They further acknowledged that a breach
of these timelines would result in the imposition of a fine
in
accordance with the rules of the association.
[6]
The Van der Walts failed to complete the renovations within the
prescribed period. They also fell behind with the payment of
their
levies and consequent penalties were? imposed by the association.
Subsequently, Mrs Van der Walt was sequestrated on 13 March
2009 and
her husband shortly thereafter, on 1 April 2009. The first to third
respondents (the trustees) were appointed joint trustees
of their
insolvent estates. At that stage, the Van der Walts’ debt stood
at R129 789. By the launch of this? application
in April 2012,
it had increased to R771 049. The market value of the property
itself is not clear from the papers. On 9 September
2009, auctioneers
had valued it at R1,1 million. A year later, on 23 September 2010,
the bank valued it for purposes of a forced
sale at R700 000.
But a municipal valuation dated 2 November 2011 placed it at
R1 667 000. Nothing however turns
on this uncertainty.
[7]
In anticipation of a sale of the property, the association required
the new owner to accept and bind itself to its rules and
regulations.
It also required payment of three months’ levies in advance
from date of registration and all outstanding levies
and penalties up
to the date of registration prior to transfer of the property. The
association’s demand was made on the
basis that the outstanding
levies and building penalties are akin to realisation costs
stipulated in s 89(1) of the Insolvency
Act 24 of 1936 (the Act)
[6]
which gives a local authority or a body corporate under the Sectional
Titles Act
[7]
the power to veto
transfer of immovable property until all moneys owing to them by the
transferor are fully paid.
[8]
For this stance, the association relied on one of the conditions
prescribed in the Deed of Transfer, title condition 5(B)(ii)
(the
embargo). The embargo, which echoes the provisions of Article 46 and
rule 2.5, decrees that
‘
[t]he owner
of the [property] or any subdivision thereof, or any person who has
an interest therein, shall not be entitled to transfer
the [property]
or any subdivision thereof or any interest therein without a
clearance certificate from the Home Owners Association
that the
provisions of the Articles of Association of the Home Owners
Association have been complied with’.
The
association took the view that the trustees had no power to transfer
the property to any purchaser without the clearance certificate
envisaged in the embargo because (a) the embargo vested it with a
real right which diminished the rights of ownership in relation
to
the property and bound the trustees too, as the Van der Walts’
successors in title; (b) the trustees as successors to
the Van der
Walts’ rights acquired no greater rights of ownership than
those held by the latter; and (c) the Van der Walts’
undisputed
breach of their obligation to keep their levies up to date under the
association’s Articles of Association entitled
it to withhold
the clearance certificate in terms of the embargo.
[9]
The bank, relying on the security provided by the mortgage bond, had
lodged and proved a claim against both estates of the Van
der Walts.
The association’s attitude to that claim was that the bond was
registered pursuant to the Van der Walts’
acquisition of
ownership in the property and was therefore registered over the
property subject to the association’s real
right and the
concomitant diminution of the Van der Walts’ rights of
ownership in terms of the embargo. But, according to
the trustees,
the association had no right to demand payment before transfer as the
embargo merely constituted a personal right
which was not binding on
them but was limited to a concurrent claim in the insolvent estate.
[10]
The trustees approached the high court seeking orders declaring that
the association’s claim in respect of the outstanding
levies
and penalties against the insolvent estate did not constitute a claim
in terms of s 89(1) of the Act and that the Registrar
could therefore
pass transfer of the property without the association’s
consent. In the high court, and in addition to the
above contentions,
the association, supported by the first and second amici curiae,
argued that the trustees’ interpretation
of the Act would
result in an arbitrary deprivation of its real right in insolvency
and would be inconsistent with the constitutional
provisions which
entrench the right to property. The parties agreed that if the
embargo constitutes a real right, the trustees’
application
would fail and that the association would, in law, be entitled to
refuse to give its consent until the outstanding
amounts had been
paid.
[11]
As stated earlier, the high court found that the embargo is a mere
personal right which does not detract from the
dominium
of the property or bind the trustees. The court rejected the amici
curiae’s constitutional argument and granted the declaratory
relief sought by the trustees. This decision, however, contradicted
an earlier judgment of the high court
[8]
which held that a similar title condition constituted a real right
binding upon the liquidators of an insolvent close corporation.
[12]
The issues remain unchanged on appeal. The thrust of the
association’s argument was that the embargo is a real right
intended to bind the owner of the land and his successors in title in
that it results in a subtraction from
dominium
of the land against which it is registered. The embargo thus remained
binding on the Master and the trustees, so they argued, because
these
parties stepped into the shoes of the insolvent parties and acquired
the same rights of ownership held by the insolvents.
[13]
The trustees, on the other hand, submitted that whilst the embargo
prohibited the transfer of property by its owner,
(a) there was no
evidence showing an intention to create a real right in the land; (b)
that the true object of the embargo was
not to diminish ownership in
the land but to achieve specific performance of a contract by a
member of the association who also
happens to be the owner of the
land; (c) that the right created by the embargo is a personal one
attaching not to the land but
only to the current owner of the land,
which is subject to the
concursus
creditorum
of insolvency; (d) that if a
real right is created at all, the envisaged transfer of land is
voluntary and not a transfer consequent
upon a forced sale under
insolvency law; and (e) that the matter raises no constitutional
issues.
[14]
The amici curiae, the Association of Residential Communities CC (ARC)
and the National Association of Managing Agents (NAMA)
which are the
only recognised representative bodies in South Africa for homeowners
associations and managing agents,
[9]
participated in the proceedings both in the high court and on appeal.
Their contentions before us related mainly to the constitutional
implications of the matter regarding the right to property of
homeowners associations across the country under ss 25(1) and 39(2)
of the Constitution which respectively entrench the right to property
and require a statutory interpretation that promotes the
spirit,
purport and objects of the Bill of Rights.
[10]
[15]
They argued that the interpretation of the Act for which the trustees
contended was inimical to these constitutional provisions
because it
results in arbitrary deprivation of property. This is so, they
contended, because on this construction, upon an owner’s
insolvency, the right of the homeowners association to resist
transfer without a clearance certificate would be extinguished. Some
of their further contentions were that homeowners associations
constitute a more recent form of communal residential development
for
which no statutory protection, such as that provided for
municipalities and sectional title developments, has yet been
promulgated.
Therefore the embargo, the insertion of which is a
standard and well-established practice, provides the associations
with critical
protection as the only effective mechanism for ensuring
the collection of levies which are their lifeblood.
[16]
To determine whether a right or condition in respect of land is real,
two requirements must be met: (a) the intention of the
person who
creates the right must be to bind not only the present owner of the
land, but also successors in title; and (b) the
nature of the right
or condition must be such that its registration results in a
‘subtraction from
dominium
’
of the land against which it is registered.
[11]
Whether the title condition embodies a personal right or a real right
which restricts the exercise of ownership is a matter of
interpretation.
[12]
the
intention of the parties to the title deed must be gleaned from the
terms of the instrument ie the words in their ordinary
sense,
construed in the light of the relevant and admissible context,
including the circumstances in which the instrument came
into
being.
[13]
The interest the
condition is meant to protect or, in other words, the object of the
restriction, would be of particular relevance.
[14]
[17]
Here, one of the pre-conditions which the developer of the township
was required to meet for the local authority to authorise
the
subdivision of the erf on which the township was established (in
terms of s 92 of the Town-Planning and Townships Ordinance
15 of
1986) and the Registrar to register the subdivision, was the
insertion of the embargo in all the title deeds of all the properties
in the township. It was thus common cause that the subdivision and
the subsequent development of the township would not have occurred
without the insertion of the embargo.
[18]
According to the trustees, this meant no more than that the township
could not be subdivided without such title conditions
being inserted
into the relevant title deeds. They disavowed any intention to create
a real right binding on successors in title,
and trustees in the
event of insolvency, arguing that the embargo made no reference to
successors in title but instead required
each new owner to bind
himself and become a member in his own right.
[19]
In support of this contention, the trustees relied on the case of
Bodasing
v Christie NO.
[15]
There, a testator bequeathed a farm to each of his two sons, subject
to testamentary clause 24 which was registered against the
respective
title deeds. The clause granted each son a right of pre-emption over
the farm of the other to the effect that if either
of them wanted to
sell he could do so only to the other at a specified price and on
specified terms and conditions. One son hypothecated
his farm
whereafter his estate was sequestrated. The trustee subsequently sold
the farm by public auction to a third party against
the other son’s
objection that he had a right to purchase the farm at the price fixed
in the will which was far less than
that offered at the sale. The
provincial division granted the latter an interdict restraining
transfer to the third party who appealed
successfully to the Full
Bench. On further appeal to this court it was held that the restraint
imposed on the alienation of the
immovable property, which was
bequeathed to each legatee giving each legatee a right of pre-emption
to the other legatee, bound
the legatee only and not the trustee as
it only restrained a voluntary sale and not a sale made compulsory by
the law.
[20]
Bodasing
is,
in my view, distinguished by its own facts and it does not assist the
trustees’ case. As this court pointed out, there
was nothing in
clause 24 to indicate that the testator intended any right of
pre-emption to operate on the sequestration of the
estate of either
of the legatees. The restraint imposed by clause 24 was intended for
an entirely different reason to that in this
case ie to give a right
of pre-emption specifically to each of the legatees. Here, the
underlying purpose of the embargo was to
create a general security
for the payment of a debt as in the case of a lien or a mortgage
bond. Clearly, to achieve that purpose
it had to bind all the
successive owners in the township. This object is also evident from
the plain language of the embargo which
must be read with the
provisions of Article 46. It seeks to bind ‘the owner of the
erf or any subdivision thereof or any
person who has an interest
therein’. In so doing, it employs generic, unqualified terms
such as the ‘owner’ and
‘any person’. These
classes must, of necessity, include every owner or holder of a real
right in the property from
time to time. This is further bolstered by
the embargo prohibiting transfer unless the purchaser has undertaken,
on transfer, to
become a member of the association
and to be bound by its rules. The first aspect required for a real
right is therefore satisfied.
[21]
For a condition to be capable of valid registration as a real right,
the second aspect requires that it must carve out a portion
of, or
take away something from, the
dominium
.
[16]
This principle is embodied in
s 63(1)
of the
Deeds Registries
Act 47 of 1937
in terms of which ‘[n]o deed, or condition in a
deed, purporting to create or embodying any personal right, and no
condition
which does not restrict the exercise of any right of
ownership in respect of immovable property, shall be capable of
registration’.
[22]
It is established that ownership comprises a bundle of rights or
competencies which include the right to use or exclude others
from
using the property or to give others rights in respect thereof.
[17]
One of these rights or competencies is the right to freely dispose of
the property, the
ius
disponendi
.
If that ‘right is limited in the sense that the owner is
precluded from obtaining the full fruits of the disposition …
[then] one of his rights of ownership is restricted’.
[18]
In this matter the embargo registered against the property’s
title deed ‘carves out, or takes away’ from the
owner’s
dominium
by restricting its
ius
disponendi
.
Thus, it subtracts from the
dominium
of the land against which it is registered. It satisfies the second
aspect and is, therefore, a real right.
[23]
I agree with the association and the amici curiae that the trustees’
argument that the embargo is meant to achieve specific
performance of
a contract, which was accepted by the high court, conflates two
distinct rights – (a) the association’s
claim for payment
of the amounts due to it by the Van der Walts, which is a personal
contractual right ranking as a mere concurrent
claim in the insolvent
estate; and (b) the association’s right of veto in terms of the
embargo which restricts the owner’s
ius
disponendi
.
As pointed out above, the latter is the right in contention here and
it is a real right for the reasons set out above. As stated,
the
right diminishes ownership in the property by entitling the
association to withhold a clearance certificate thus preventing
the
transfer of the property until the Van der Walts’ outstanding
debt has been paid. In that case, the embargo remains binding
on the
trustees in whom the insolvent estate now vests in terms of s 20 of
the Act.
[19]
[24]
The effect of the embargo is akin to that of the embargos contained
in s 118 of the Local Government: Municipal Systems Act
32 of 2000
(the Municipal Systems Act)
[20]
and s 15B(3)(
a
)(i)(
aa
)
of the
Sectional Titles Act 95 of 1986
.
[21]
These provisions respectively prohibit the Registrar from registering
the transfer of immovable property except on production of
a
certificate issued by the municipality or a conveyancer confirming
that all moneys due to the municipality or a body corporate
have been
fully paid.
[25]
It is accepted that these statutory embargoes serve a vital and
legitimate purpose as effective security for debt recovery
in respect
of municipal service fees and contributions to bodies corporate for
water, electricity, rates and taxes etc. Thus, they
ensure the
continued supply of such services and the economic viability and
sustainability of municipalities and bodies corporate
in the interest
of all the inhabitants in the country.
[22]
And this is particularly so in the circumstances of insolvency, when
an effective legal remedy against an insolvent is most needed.
[23]
[26]
These objects are precisely what the embargo in this case seeks to
achieve. Nothing in the law impedes this type of security.
Neither is
there anything ‘insensible or unbusinesslike’ that
undermines the apparent purpose of the title condition
in the
interpretation contended for by the association.
[24]
In one of the cases postulated by trustees, where there may be
insufficient funds to meet the debt, there is no indication in the
association’s Articles of Association and rules that the
association cannot waive its veto right and issue the clearance
certificate to ensure the sale of the property. The Act provides its
own safeguards to address possible prejudice to creditors.
For a
start, a sequestration may not be ordered unless it is shown that it
will be to the advantage of creditors to do so. And
provision is made
in a careful scheme for the disposition of an insolvent estate
including cases where there are insufficient assets
to meet the
creditors’ claims.
[27]
It must be borne in mind that homeowners associations are obliged to
provide services to all of their members. And so, similarly
to
municipalities and bodies corporate which enjoy the statutory
protection afforded by the embargoes, they extend credit to all
the
homeowners in their estates without the benefit of requiring security
therefor. As was contended by the amici curiae, there
is no material
difference between homeowners associations and bodies corporate in
terms of their objects, activities and status.
There is simply no
basis to deprive the association of the protection afforded by the
embargo which has an identical purpose and
effect to that provided to
bodies corporate (and municipalities) by a law of general
application.
[28]
It bears mention that the embargo confers no preference on the
association’s claim which indeed remains a concurrent
claim as
contended by the trustees.
[25]
Its effect is merely to secure payment of the claim. And, in
insolvency, this is done only in so far as it is not incompatible
with the rights of other creditors. It is settled in the context of
statutory embargoes that an amount paid in order to enable
property
sold by a trustee or liquidator to be transferred to the buyer is
included in the cost ‘of maintaining, conserving
and realising’
property to which reference is made in s 89(1) of the Act.
[26]
Likewise, to discharge their duty to sell the property, the trustees
in this case must pay the outstanding levies and penalties
as part of
‘the cost of … realising any property’ within the
meaning of s 89(1), out of the proceeds of the
property, in the
manner contemplated in s 118(2) of the Municipal Systems Act.
[29]
To hold otherwise would deprive the association of an effective tool
for ensuring the collection of levies. This would impose
enormous
costs on it (and on other homeowners associations across the country,
whose services infrastructure installed in residential
estates is
valued at more than R10 billion, particularly having regard to the
evidence that just 35 members of NAMA are owed fees
in excess of R28
million in respect of members whose properties were subjected to
forced sales) with dire consequences on its ability
to run the
estate. One obvious example of such consequences is that the credit
standing and ability of homeowners associations
to secure finance
would be adversely affected because of their inability to collect
debts owed to them.
[30]
A further consideration is that the Registrar has seen fit to
register this condition against the title deeds of the properties
in
the township. Whilst this is, of course, not decisive, it is
important to bear in mind the approach of this court to actions
taken
by the Registrar.
In
Registrar
of Deeds
(
Transvaal
)
v
The
Ferreira Deep Ltd
,
[27]
De Villiers CJ said:
‘
In
Hollins
v.
Registrar
of Deeds, supra
,
INNES, C.J., expressed the opinion that the Court should be very
careful in dealing with the Registry of Deeds. With that view
I
entirely agree, and it is for that reason the more that it is
satisfactory to be able to arrive at this conclusion. It would
be no
light matter for the Court to declare of no value rights which have
been registered against title, which have been looked
upon by the
public as valid, and upon the faith of which numerous transactions
have been entered into.’
[28]
[31]
As to the constitutional point raised by the amici curiae, which may
well have merit, it was properly conceded on their behalf
that a
finding that the embargo constitutes a real right and is therefore
enforceable against the trustees as well would dispense
with the need
to address it. Thus, nothing more need be said in that regard.
[32]
For all these reasons, the appeal must succeed with costs to follow
the result in the ordinary course. There is, of course,
no need to
make any costs award in respect of the amici curiae.
[29]
[33]
The following order is made:
1 The appeal is
upheld with costs including the costs of two counsel.
2
The order of the court below is set aside and replaced with the
following:
‘
The
application is dismissed with costs including the costs of two
counsel.’
____________________________
MML MAYA
JUDGE OF APPEAL
APPEARANCES:
For 1
St
Appellant: W Trengrove SC ( N Ferreira)
Instructed
by: N Van der Walt Inc,
Pretoria
Symington
& De Kok,
Bloemfontein
For 1
St
to 3
rd
Respondents: MM Oosthuizen SC (L Meintjies)
Instructed
by: Rorich, Wolmarans
Luderitz
Inc, Pretoria
Kamer
Weihman & Joubert Attorneys,
Bloemfontein
For Amicus Curiae: S
Budlender
Instructed
by: Adams & Adams
Attorneys,
Pretoria
Honey
Inc, Bloemfontein
[1]
It
is now deemed to be a non-profit company in terms of Item 4(1)(
a
)
of Schedule 5 of the
Companies Act 71 of 2008
.
[2]
In
terms of Article 3.3 which provides that ‘[w]hen a member
becomes the registered owner of a Unit, he shall ipso facto
become a
member of the Association, and when he ceases to be the owner of any
Unit … he shall ipso facto cease to be a
member of the
Association’. ‘Unit’ is defined in Article 1.1 as
‘a dwelling unit for a single family…with
or without
outbuildings, and whether held under tenure in terms of the
Sectional Titles Act 66 of 1971, as amended, or situated
on its own
residential lot or individual subdivision of a residential lot,
tenure of which may be registered in the Land Register
of the Deeds
registry’.
[3]
Article
4 empowers the trustees (directors) of the association to impose
levies upon members for the purpose of meeting all the
expenses
incurred or reasonably anticipated to be incurred in the attainment
of the association’s objects and to determine
the rate of
interest chargeable upon arrear levies in accordance with the
Limitation and Disclosure of Finance Charges Act 173
of 1968.
[4]
Article
5 vests the trustees of the association with the power to impose a
system of fines and penalties for the enforcement of
any of the
rules made for the running of the estate.
[5]
Article
46.
[6]
The
section reads:
‘
The
cost of maintaining, conserving and realizing any property shall be
paid out of the proceeds of that property, if sufficient
and if
insufficient and that property is subject to a special mortgage,
landlord’s legal hypothec, pledge, or right of
retention the
deficiency shall be paid by those creditors,
pro
rata
, who have proved their claims and
who have been entitled, in priority to other persons, to payment of
their claims out of those
proceeds if they had been sufficient to
cover the said cost and those claims. The trustee’s
remuneration in respect of
any such property and a proportionate
share of the costs incurred by the trustee in giving security for
his proper administration
of the estate, calculated on the proceeds
of the sale of the property, a proportionate share of the Master’s
fees, and
if the property is immovable, any tax as defined in
subsection (5) which is or will become due thereon in respect of any
period
not exceeding two years immediately preceding the date of the
sequestration of the estate in question and in respect of the period
from that date to the date of the transfer of that property by the
trustee of that estate, with any interest or penalty which
may be
due on the said tax in respect of any such period, shall form part
of the costs of realization.’
[7]
Section
15B(3)(
a
)(i)(
aa
)
of the
Sectional
Titles Act 95 of 1986
provides for a statutory embargo. This court
has held that the effect of that section is to create an ‘effective
preference’
and to render the costs
of
settling all arrear monies in respect of a unit as a cost of
administration in an insolvent estate. See
Barnard
NO v Regspersoon van Aminieen ‘n ander
2001 (3) SA 975
(SCA) para 15;
Nel
v Body
Corporate
of the Seaways Building & another
[1995] ZASCA 83
;
1996 (1) SA 131
(A) at 140H-141A.
[8]
Cowin
NO v Kyalami Estate Homeowners Association
[2013]
ZAPGJHC 121 (25 February 2013).
[9]
ARC
was established to provide support, best practice and consulting
services to the governing bodies of residential estates such
as
homeowners associations, boards of directors and bodies corporate.
Governing bodies of about 45 per cent of all properties
situated in
residential estates in South Africa are associated with it. NAMA was
established with the primary objective of promoting
and advancing
the interests of managing agents of residential communities in South
Africa. It manages the affairs of approximately
13 550 security
estates representing approximately 495 000 individual property
owners.
[10]
In
terms of the
section 25(1)
‘[n]o one may be deprived of
property except in terms of law of general application, and no law
may permit arbitrary deprivation
of property.’ And
s 39(2)
provides: ‘[w]hen interpreting any legislation, and when
developing the common law or customary law, every court, tribunal
or
forum must promote the spirit, purport and objects of the Bill of
Rights.’
[11]
Cape
Explosive Works Ltd & another v Denel (Pty) Ltd & others
2001
(3) SA 569
(SCA) para 12;
Erlax
Properties (Pty) Ltd v Registrar of Deeds and others
[1991] ZASCA 187
;
1992
(1) SA 879
(A) at 885B.
[12]
National
Stadium South Africa (Pty) Ltd & others v Firstrand Bank Ltd
2011
(2) SA 157
(SCA) para 33.
[13]
Bothma-Batho
Transport
v
S Bothma & Seun Transport
2014 (2) SA 494
(SCA) paras 10-12.
[14]
Ibid.
See also
Willoughby’s
Consolidated Co Ltd v Copthall Stores Ltd
1918
AD 1
at 16.
[15]
Bodasing
v Christie NO
1961
(3) SA 553
(A) at 561.
[16]
Edelor
(Pty) Ltd v Champagne Castle Hotel (Pty) Ltd
1972
(3) SA 684
(N) at 689F-690 B;
Venter
v Minister of Railways
1949
(2) SA 178
(E);
National
Stadium SA
fn
9 para 33.
[17]
Van
den Berg v Dart & another
1949
(4) SA 884
(A) at 885;
Geyser
& another v Msunduzi Municipality & others
2003
(5) SA 18
(N) at 37A-B;
Mobile
Telephone Networks (Pty) Ltd v SMI Trading CC
2012
(6) SA 638
(SCA) para 17;
National
Stadium SA
fn
9 para 31.
[18]
Pearly
Beach Trust v Registrar of Deeds
1990
(4) SA 614 (C).
[19]
The
section reads in relevant part:
(1)
The effect of the sequestration of the estate of an insolvent shall
be–
(
a
)
To divest the insolvent of his estate and to vest it in the Master
until a trustee has been appointed, and, upon the appointment
of a
trustee, to vest the estate in him;
…
(1)
For the purposes of subsection (1) the estate of an insolvent shall
include–
(
a
)
all property of the insolvent at the date of the sequestration,
including property or the proceeds thereof which are in
the hands of
a sheriff or a messenger under writ of attachment.’
[20]
The
section reads:
(1)
A registrar of deeds or other registration officer of immovable
property may not register the transfer of property except
on
production to that registration officer of a prescribed certificate–
(a)
issued by the municipality in which that property is situated; and
(b)
which certifies that all amounts due in connection with that
property for municipal service fees, surcharges on fees,
property
rates and other municipal taxes, levies and duties during the two
years preceding the date of application for the certificate
have
been fully paid.
(2)
In the case of the transfer of immovable property by a trustee of an
insolvent estate, the provisions of this section
are subject to
s 89
of the
Insolvency Act 24 of 1936
.
[21]
The
section provides:
‘
(3)
The registrar shall not register a transfer of a unit or of an
undivided share therein, unless there is produced to him–
(
a
)
a conveyancer’s certificate confirming that as at date of
registration–
(i)(
aa
)
if a body corporate is deemed to be established in terms of
section
36(1)
, that body corporate has certified that all moneys due to the
body corporate by the transferor in respect of the said unit have
been paid, or that provision has been made to the satisfaction of
the body corporate for the payment thereof’.
[22]
Geyser
fn
14 at 37.
[23]
Barnard
NO v Regspersoon van Aminie en ‘n ander
fn
7 para 15.
[24]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) para 18.
[25]
As
mentioned above, it confers an ‘effective preference’ in
respect of the claim in that amounts due
form
part of the costs of administration. See fn 7.
[26]
Rabie
NO v Rand Townships Registrar
1926
TPD 286
;
Nel
NO v Body Corporate of the Seaways Building & another
[1995] ZASCA 83
;
1996
(1) SA 131(A)
at 139D-140G;
Eastern
Metropolitan Substructure of Greater Johannesburg Transitional
Council v Venter NO
[2000] ZASCA 139
;
2001
(1) SA 360
(SCA) paras 32 -34;
Barnard
NO
fn
19 paras 9-18.
First
Rand Bank Ltd v Body Corporate of Geovy Villa
2004
(3) SA 362
(SCA) paras 21-27;
BOE
Bank Ltd v Tshwane Metropolitan Municipality
2005
(4) SA 336
(SCA) para 7;
City
of Johannesburg v Even Grand 6 CC
[2008] ZASCA 146
;
2009
(2) SA 111
(SCA) para 14.
[27]
Registrar
of Deeds
(
Transvaal
)
v
The
Ferreira Deep Ltd
1930
AD 169
at 181.
[28]
Hollins
v.
Registrar
of Deeds
1904
TS 603.
[29]
Minister
of Justice v Ntuli
[1997] ZACC 7
;
1997
(3) SA 772
(CC) para 43;
Mohunram
and another v National Director of Public Prosecutions and another
(Law Review Project as Amicus Curiae)
2007
(1) SA 222
(CC) para 105.