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[2018] ZAECPEHC 37
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Korkie and Others v Ismail and Others (4305/2017) [2018] ZAECPEHC 37 (31 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 4305 / 2017
Date heard: 26 June 2018
Date
delivered: 31 July 2018
In
the matter between
JUNE
KORKIE First
Applicant
JUNE
KORKIE
N.O. Second
Applicant
JACK
ALLERS
GROUP Third
Applicant
WERNER
HOLLAND Fourth
Applicant
And
IBRAHIM
ISMAIL First
Respondent
MUNEEP
ISMAIL Second
Respondent
MUSTAFA
ISMAIL Third
Respondent
DAWAYDA
ISMAIL Fourth
Respondent
WAYNE
LESTER
JAGGERS Fifth
Respondent
JUDGMENT
GOOSEN,
J.
[1]
The
applicants commenced urgent proceedings against the respondents on 15
December 2017. They sought an order interdicting the respondents
from
making threats against the applicants; from damaging or destroying a
fence erected at a complex; and from convening a meeting
on 19
December 2017 at which a motion of no-confidence in the first to the
third applicants was to be tabled. The application was
heard on
Saturday 16 December 2017 and a rule
nisi
was issued. Orders as set out above were rendered effective as an
interim interdict pending the return date on 30 January 2018.
On that
day and on several further occasions the operation of the rule
nisi
was extended. When the matter was finally heard on 26 June 2018, the
applicants sought a final order. The respondents opposed the
relief.
[2]
The
first applicant is the owner of a residential unit in a sectional
title scheme established in terms of the Section Titles Act,
Act 95
of 1996. The scheme is known as the Allan Hendrickse Complex and is
situated in Korsten, Port Elizabeth. The first applicant
is also the
chairperson of the Allan Hendrickse Body Corporate established in
terms of the Act. She joins in this representative
capacity as a
Trustee acting on behalf of the Body Corporate, as the second
applicant. The third applicant is the appointed Managing
Agent of the
Body Corporate. The fourth applicant is an owner of a residential
unit in the scheme.
[3]
The
first respondent is also an owner resident at the complex. The
second, third and fourth respondents are his adult children who
reside with him. The fifth respondent is a tenant in one of the
residential units.
[4]
The
complex consists of 136 sectional title units. It is located in an
area which the applicants described as crime-ridden with
a high
incidence of gang-related criminal activity. The respondents suggest
that this description is exaggerated. Nothing, it will
be seen, turns
on this. It suffices for present purposes to record that concerns
about crime and the safety of residents at the
complex gave rise to
the issues now to be decided.
[5]
It
is common cause between the parties that the complex borders onto an
area of open ground, which is owned by the municipality.
The
applicants state that this boundary is not fenced, resulting in easy
access to the complex from the open ground. (According
to the
respondents there was an existing fence which was in need of repair.)
Several criminal incidents, including theft of copper
pipes at the
complex, have occurred. In order to address the issue, the Trustees
of the Body Corporate convened a Special General
Meeting of the Body
Corporate which was scheduled to take place on 26 October 2017.
Notices were dispatched to owners on 21 September
2017. The meeting
was to take place at the offices of the third respondent in Newton
Park. The purpose of the meeting was to obtain
Body Corporate
permission to install security fencing along the open boundary of the
complex, and to authorise the Trustees to
sell, maintain and let
units for the Body Corporate.
[6]
The
meeting did not proceed on 26 October 2017. The reason for this was
that no
quorum
was established as provided for in the Sectional Title Schemes
Management Act, 8 of 2011. The applicants accordingly convened a
further meeting, apparently in terms of management regulation 19 (4)
on 2 November 2017. The applicants allege that a
quorum
was then established and resolutions were adopted,
inter-alia
,
authorising the installation of a security fence.
[7]
Following
this meeting, on 8 November 2017, the fifth respondent sent an email
to Ms Cassandra Bennette, an employee of the third
respondent, to
which was attached a petition signed by 45 owner residents of the
complex. The petition records the dissatisfaction
of the signatories
with the way in which the scheme is managed. In particular the
petition cites the fact that meetings are not
held at the complex and
that decisions are taken by a minority of residents. The signatories
called for a Special General Meeting
to be convened at which a motion
of no-confidence in the Trustees and a resolution rescinding the
decisions taken on 2 November
2017 was to be tabled.
[8]
On
15 November 2017 the third applicant wrote to a certain WJ Cornelius,
one of the signatories of the petition. In the letter the
third
respondent asks for confirmation that he is indeed a signatory and
suggests that, in the event that he is dissatisfied, he
should refer
a dispute to the Ombud. In regard to meetings not being held at the
complex, the third respondent cites certain security
considerations.
[9]
On
22 November 2017 a further letter was sent to the third respondent on
behalf of certain concerned owners. In it they take issue
with the
high-handed tone of the third respondent’s earlier letter. In
particular, it is suggested that the referral of a
dispute to the
Ombud would be unnecessary if the owners were given an opportunity to
address their concerns with the Trustees and
furthermore, that
threats of criminal prosecution for non-compliance with certain
provisions of the Act amounts to inappropriate
intimidation.
[10]
The
approach of the third respondent to what appears to have been a
reasonable request on the part of a large number of owners for
a
meeting, appears to have contributed to subsequent events.
[11]
On
6 December 2017 the contractors, Beta Fence, came on site to erect
the security fence. The first applicant alleges that on that
date the
first respondent made a threat to her that he would tear down the
fence. An SMS message was sent by the third applicant
to the first
respondent stating that a criminal charge would be laid against him
should he continue to make such threats.
[12]
The
first respondent denies having threatened to pull down the fence. He
states that he telephoned Mrs Bennette to enquire why they
were
proceeding with the erection of the fence despite the objections
received. He states that she merely laughed when she was
confronted
with this. He states that he at no stage made any threat to her.
[13]
The
first applicant also alleges that the third respondent “attempted
to interfere with the contractors” and that the
third
respondent insulted the fourth applicant in the presence of the
contractors. An email was sent to the owner of the unit rented
by the
fifth respondent advising him of what had occurred and drawing his
attention to the fact that he is responsible for the
conduct of his
tenant.
[14]
The
fifth respondent denies that he interfered with the contractors. He
admits to being present on the site and that he spoke to
some of the
persons who were digging fence-post hole, enquiring of them why they
were doing so, when some of them were residents
who had signed the
petition.
[15]
On
13 December 2017 the first and fourth applicants went to check the
progress of the works. The first applicant alleges that the
first,
second, third and fourth respondents approached them. The first
respondent is alleged to have threatened to tear down the
fence. He
then instructed the second, third and fourth respondents to pull down
the face. They pushed down six fence posts and
damaged the fence.
According to the first applicant, the first respondent instructed
“someone” to throw a rock at the
first applicant. She did
not however, see who did this. The fifth respondent then allegedly
joined the fracas and encouraged the
destruction of the offence.
[16]
After
the fracas the first applicant summoned the South African Police
Services. Members of the Police Service arrived at approximately
19h00. After they spoke to the first respondent, the first applicant
was advised to approach the Magistrates Court for a protection
order.
According to the first applicant the contractor returned to the site
to repair the damage to the fence on 14 December 2017.
[17]
The
respondents deny that they damaged the fence or pushed over any fence
posts. The first respondent states that there were at
least 50
residents present at the time. He states that when the Police arrived
they saw no damage to the fence and that the Police
then left. The
first respondent admits however that posts were pushed over but
states that this could have occurred at some stage
that evening by
persons unknown.
[18]
As
stated at the outset, the applicants seek a final interdict. The only
orders sought to be finalised are those set out in paragraphs
2.1 and
2.2 of the interim order, i.e. the orders interdicting the
respondents from making threats to the applicants and from damaging
the fence. The relief relating to the convening of a meeting at which
a motion of no-confidence in the applicants was to be tabled
has
effectively fallen aside. At the hearing on 16 December 2017 the
respondents were present. The issue relating to the meeting
was
addressed by an undertaking given by the respondents not to table a
motion of no-confidence in the Trustees at that meeting.
[19]
Mr
Lamprecht, on behalf of the applicants, argued that the facts
establish that the respondents, aggrieved by the decision to erect
a
security fence, unlawfully resorted to self-help. He stated that the
denial of involvement in the events of 6 and 13 December
2017 by the
respondents, amounts to no more than a bare denial. It was submitted
that the respondents concede that there was an
incident on 13
December and that the fence was damaged. When regard is had to the
positive assertion by the first applicant relating
to the involvement
of the first to fifth respondents, met only by a bald denial, this
court ought to find that there is no genuine
and
bona
fide
dispute of fact. Accordingly, it was submitted, the court should find
that the requisites for an interdict are established and
confirm the
rule
nisi
.
[20]
Mr
Naidu, on behalf the respondents, raised several arguments against
confirmation of the interim order. The first was that the
applicant
lacks
locus
standi
in relation to the alleged threat to damage property owned by the
Body Corporate, and that the application which purports to be
on
behalf of the Body Corporate is not authorised. The further arguments
related to the existence of disputes of fact which are
to be resolved
in favour of the respondents. It was accordingly submitted that the
application ought to be dismissed on either
of these grounds.
[21]
The
first applicant seeks relief in both her personal capacity and in her
capacity as chairperson of the Body Corporate. There can,
of course,
be no doubt that she is entitled to seek relief in respect of
unlawful threats made against her. It was submitted, however,
that in
relation to the property interests of the Body Corporate she has no
such standing, save in terms of s 41 of the Sectional
Titles Act.
[22]
Section
41 provides as follows:
(1)
When an owner is of the opinion that he and the body corporate have
suffered damages or loss or have been deprived of any benefit
in
respect of a matter mentioned in section 36 (6), and the body
corporate has not instituted proceedings for the recovery of such
damages, loss or benefit, or where the body corporate does not take
steps against an owner who does not comply with the rules,
the owner
may initiate proceedings on behalf of the body corporate in the
manner prescribed in this section.
(2)
(a) Any such owner shall serve a written notice on the body corporate
calling on the body corporate to institute such proceedings
within
one month from the date of service of the notice, and stating that if
the body corporate fails to do so, an application
to the court under
paragraph (b) will be made.
(b)
If the body corporate fails to institute such proceedings within the
said period of one month, the owner may make application
to the court
for an order appointing a
curator ad litem
for the body
corporate for the purposes of instituting and conducting proceedings
on behalf of the body corporate.
(3)
The court may on such application, if it is satisfied –
(a)
that the body corporate has not instituted such proceedings;
(b)
that there are
prima facie
grounds for such proceedings; and
(c)
that an investigation into such grounds and into the desirability of
the institution of such proceedings is justified,
appoint
a provisional
curator
ad litem
and direct him to conduct such investigation and to report to the
Court on the return date of the provisional order.
[23]
The
requirements of the section are not met in this application insofar
as the first applicant seeks in her personal capacity to
institute
proceedings on behalf of the Body Corporate. The first applicant,
however, proceeds in her capacity as a Trustee of the
Body Corporate.
[24]
Section
36 (6) of the Act provides that:
(6)
The body corporate shall have perpetual succession and shall be
capable of suing and being sued in its corporate name in respect
of –
(a)
any contract made by it;
(b)
any damage to the common property;
(c)
any matter in connection with the land or building for which the body
corporate is liable or for which the owners are jointly
liable;
(d)
any matter arising out of the exercise of any of its powers or the
performance or non-performance of any of its duties under
this Act or
any rule; and
(e)
any claim against the developer in respect of the scheme if so
determined by special resolution.
[25]
Mr
Naidu relied on the qualifying phrase “by special resolution”
in s 36 (6) (e) to suggest that in the absence of such
resolution the
Body Corporate is not properly before court and that the first
applicant purporting to act as chairperson of the
Trustees of the
Body Corporate lacks
locus
standi
.
[26]
In
my view the qualification only applies in relation to proceedings
against the developer. The respondent however, placed the authority
of the first applicant to act on behalf of the Trustees and the Body
Corporate in issue in its answering affidavit. This was met
in reply
by the assertion that the first applicant is in fact duly authorised
in that capacity, although no resolution of the Trustees
is put up in
confirmation thereof. Neither party has placed before the court the
governing constitution of the Body Corporate which
relates to the
institution of proceedings. I did not understand the respondents’
objection to be that the Trustees are not
entitled to act on behalf
of the Body Corporate. Rather it was that the first applicant was not
authorised. While it may have been
expected that the applicants would
put up a resolution of the Trustees to establish unequivocally the
authority to bring the proceedings,
I accept the clear assertion made
under oath made by the first applicant, that she is duly authorised
to act on behalf of the Trustees
of the Body Corporate. I accept
therefore that the Body Corporate is properly before the court to
protect its proprietary interests
in terms of s 36 (6) (b) of the
Act.
[27]
In
regard to the merits of the application, there can be no doubt that
the first applicant has a clear right not to be threatened
or
intimidated in any manner. The second applicant, i.e. the Body
Corporate, also has a clear right to protect its property held
in
trust in the interests of its members. It was argued by the
respondents that the applicants have failed to establish that the
respondents were involved in or responsible for the alleged threats
issued to the first applicant and to the damage to the fence.
In this
regard it was submitted that the denial is not a bald denial. Several
affidavits deposed to by other residents, apparently
made to the
Police, state that the first, second, third and fourth respondents
were not involved in damaging the defence or, for
that matter, in
making threats to the first applicant. Although the provenance of
these statements is unclear, their content cannot
be ignored. The
effect of this is that the respondent’s denial of any
involvement in causing damage to the fence is supported
by several
witnesses. Since the applicants seek final relief in motion
proceedings, this dispute of fact is to be resolved on the
basis of
the well-established principle is set out in
Plascon-Evans
Paints Pty Ltd v Van Riebeeck Paints Pty Ltd
1984 (3) SA 633
(A)). It must therefore be accepted that the
applicant has not established that the respondents caused damage to
the fence or threatened
to do so. A necessary requisite for final
relief is therefore not established.
[28]
It
is appropriate to highlight, in this regard, the position of the
fourth applicant. The fourth applicant, who is a resident in
the
complex, joined in the application and filed an affidavit confirming
the allegations made by the first applicant. Subsequently,
however,
it appears, that he deposed to an affidavit made to the Police on 30
April 2018 in which he states that the averments
in the founding
affidavit of the first applicant are not correct. He further denies
that the fifth respondent was present at what
he describes as the
“scuffle of owners” on 30 December 2017 and that the
alleged threat made by the fifth respondent
to him was “a
complete misunderstanding”. It is no doubt the content of this
affidavit which caused the applicant’s
attorneys to withdraw as
attorneys of record for the fourth applicant.
[29]
It
is of course not possible to determine the veracity of the affidavits
deposed to by the fourth applicant. They however cast doubt
upon an
important element of the factual basis upon which the applicants
rely. These statements furthermore highlight what appears
to be a
fraught dispute between residents at the complex in regard to issues
affecting the management of the complex which this
court is not best
placed to resolve. I shall return to this issue hereunder when
dealing with the costs of the application.
[30]
In
regard to the allegations of threats made to the first applicant.
There is, similarly, no basis to find that the making of the
threats
is established on the papers. The first applicant does not allege
that she was threatened in some manner, rather the first
applicant
alleges that the first respondent made a threat to her on 6 December
that he would tear down the fence. The first applicant
does not state
where and in which circumstances of this threat was made. The SMS
message apparently sent to the first respondent
by the third
respondent relating thereto and warning the first respondent of
criminal consequences, does not serve to confirm the
allegation of
the first applicant. There is no suggestion that the first applicant
was in the company of Mrs Bennette when the
threat was made or that
Mrs Bennette herself was threatened. In any event, the alleged threat
was one indicating an intention to
“tear down the fence”
and was not directed at the first applicant. The first respondent in
any event, denies making
such threat.
[31]
In
the circumstances and upon a careful consideration of the papers, I
am not satisfied that the evidence, such as must be accepted,
establishes that the respondents acted unlawfully as alleged or
threatened so to act. It follows from this that the applicants
have
not established an essential requisite for the relief sought.
[32]
That
leaves the question of costs. In the ordinary course the costs ought
to follow the result. I have, however, already pointed
to what
appears to be a fraught situation in relation to the ongoing
management of the complex and that there are several residents
who
are dissatisfied with steps taken by the Trustees of the Body
Corporate. This fraught situation was certainly not assisted
by the
tone of the correspondence addressed by the third respondent to the
Concerned Owners group when they requested a meeting
to address the
resolutions adopted on 2 November 2017 and in which they expressed
their lack of confidence in the leadership of
the Trustees. The tone
of that letter, in my view, did nothing to alleviate the concerns of
the residents and may very well have
contributed to a “scuffle
of owners” and the high emotions which were demonstrated on 13
December 2017.
[33]
It
is also common cause on the papers that the financial affairs of the
Body Corporate are parlous and that it is apparently indebted
to the
municipality in a substantial sum. Indeed financial management
appears to be at the centre of a previous change of Trustees.
In the
circumstances, it seems to me that it would serve only to exacerbate
the situation by burdening the Body Corporate, in effect,
with the
costs of this application. Whilst I accept that the respondents have
been put to the costs of their opposition to this
application, I am
cognisant of the fact that they have been represented herein by the
Legal Aid Board. In all of these circumstances
it seems to me
both fair and reasonable that each party should pay their own costs.
[34]
In
the result I make the following order:
1.
The
Rule
Nisi
issued on 16 December 2017 is discharged.
2.
Each
party is ordered to pay its own costs.
_______________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Applicants
Adv.
I. Lamprechts
Instructed
by Brown, Braude & Vlok Inc.
For
the Respondents
Mr.
V. Naidu
Instructed
by Legal Aid, Port Elizabeth