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2024
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[2024] ZAFSHC 33
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Chop Chop Connections (Pty) Ltd v Walker and Others (2200/2022) [2024] ZAFSHC 33 (1 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2200/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to magistrates: NO
In
the matter between:
CHOP
CHOP CONNECTIONS (PTY) LTD
Applicant
And
MICHAEL
DUDLEY WALKER
First
Respondent
THE
TRUSTEES FOR TIME BEING
Second
Respondent
OF
THE BODY CORPORATE:
HILLVERSUM
SECTIONAL SS33/2001
MANGAUNG
METROPOLITAN MUNICIPALITY
Third
Respondent
JUDGMENT
BY:
LEKHOABA, AJ
HEARD
ON:
19 OCTOBER 2023
DELIVERED
ON: 01
FEBRUARY
2024
[1]
The Applicant applies for a demolition order regarding its
neighbour’s garage
which encroaches onto its property and for
the 1
st
Respondent (‘the respondent”) to
remove heaps of building material and rubble on the Applicant’s
area. The Respondent
opposes the application. The Second and the
Third Respondents did not oppose the application. The Responded had
raised an issue
of joinder but has since abandoned same.
[2]
The Applicant is the registered owner of two Sections 1 and 2, as
shown and more fully
described on Sectional Plan no. SS33/2001 in the
Sectional Title Scheme known as “Hillversum” in respect
of the land
and building (s) situated on Portion 4 (of 2) of the Farm
Klipdrift 10, Bloemfontein, Free State.
[3]
The Applicant furthermore purchased the
rights to an exclusive use area, which is approximately 15
hectares
in size in Hillversum. The Applicant submits that she was supposed to
receive the full use and enjoyment of the exclusive
use area without
any interference from the other owners, such as the Respondent.
[4]
The Respondent is the registered owner of Section 7 as shown and more
fully described on Sectional
Plan no. SS33/2001 in Hillversum in
respect of the land building(s) situation at portion 4(of 2) of the
farm Klipdrift No. 10,
District Bloemfontein, Province Free State.
[5]
It is alleged that the First Respondent had however, after the
registration of the scheme constructed
a garage and fenced in an area
with electric fencing which encroaches his section’s boundaries
into the exclusive use area,
regardless of the rights of the
Applicant and regardless of the limited rights the Respondent had in
respect of the use of the
exclusive use area.
[6]
A copy of the tittle deed of the First Respondent’s property,
confirms ownership of the
property, but furthermore confirms this
property may not be used to construct building and, or structures
which encroaches its
boundaries.
I
now turn to the submissions by the parties:
APPLICANT’S
CASE
[7]
Rule 74 of the Management Rules of Hillversum provides that exclusive
use area is reserved for
the exclusive use of the owner of sections 1
and 2, being the applicant. The Applicant alleges that the Respondent
also owns a
sectional title scheme which directly borders the
exclusive area reserved for use by the Applicant.
[8]
The Applicant’s Counsel submitted that after moving onto his
property on or about 28 September
2021, the Applicant realized that
the roof structure of the buildings on the Respondent’s
property encroached onto the exclusive
use area and that the first
Respondent fenced off an area in the exclusive use area with an
electric fence. The Applicant further
alleges that there were further
heaps of building material and rubble on the area.
[9]
The Applicants’ Counsel submitted that the Respondent refused
to remove the encroachments
despite demand. The Applicant further
submitted that she thus attempted to resolve the dispute amicably
and, or through a reasonable
request for corporation, but no action
had been forthcoming from either of the Respondents. As a result, the
Applicant continues
to suffer harm, and is prejudiced in the use of
the exclusive area since it cannot enjoy the use of same specifically
reserved
for her use and enjoyment. The Applicant contends that the
Respondent has no right to encroach onto the exclusive use area of
the
applicant with its buildings, roofs, fences and or with building
material being stored / retained on its exclusive use area.
RESPONDENT’S
CASE
[10]
The First Respondent denies all allegations by the Applicant and
submitted that the Applicant called her
and requested that they
remove the encroachments from its exclusive use area. The Respondent
contended that the Applicant lacks
locus
standi
to
bring this application. The respondent contend further that should
the Court find that there is encroachment on the exclusive
use area
of the Applicant then in that case, an order for transfer of a
section into the name of Respondent should be made against
compensation to be paid to the Body Corporate. This according to the
Applicant would an appropriate order.
[11]
The Respondent submitted that the Court has to balance its rights
with the rights of the Applicant to determine
what order to make,
being one of the demolition or transfer of the encroached-upon area.
The Respondent further submitted that
taking into consideration the
size of the encroached property, it cannot be in the interests of
justice to order demolish of the
structure. They further contended
that the Court should adjudicate on the notion of equity and fairness
in terms of the principles
of neighbour law, so as to order payment
instead of demolition.
ISSUES
1.
To determine if the Applicant has
locus
standi
.
2.
Whether the First Respondent’s
roof structure of the garage and fencing encroached onto the
exclusive use area.
3.
Whether the First Respondent is liable
to remove building material being stored/ retained on the exclusive
use area.
4.
Whether compensation should be paid to
the Applicant or the Body Corporate
On
Locus Standi
[12]
Sectional Title Schemes Act 20
of 2011 (“the Act”)
provides as follows:
“
9.
(1) An owner may initiate proceedings on behalf of the body
corporate in the manner prescribed in this section-
(a)
When such owner is of the opinion that he or she and the body
corporate have suffered damages or loss or have been deprived
of any
benefit in respect of a matter mentioned in Sec 2(7), and the body
corporate has not instituted proceedings for the recovery
of such
damages, loss or benefit, or
(b)
when the body corporate does not take steps against an owner who does
not comply with the rules.
(2)
(a) Any such owner must 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 referred
to in paragraph (a), the owner may make
application to the Court for order appointing
curator ad litem
for
the body corporate for purpose of instituting and conducting
proceedings on behalf of the body corporate.
(3) The Court on such
application, if it is satisfied-
(a)
that t
he body corporate has not
instituted such proceedings;
(b)
that there are prima facie grounds for
the institution of proceedings; and
(c)
that an investigation into such grounds
and the desirability of the institution of such proceedings is
satisfied appoint a provisional
curator ad litem and direct him or
her to conduct an investigation into the matter and to report to the
Court on the return day
of the provisional order.
(4)
The Court may on the return day discharge the
provisional order referred to in subsection (3), or confirm the
appointment of curator
ad litem for the body corporate, and issue
such directions as it may consider necessary to the institution of
proceedings in the
name of the body corporate and the conduct of such
proceedings on behalf of the body corporate by the
curator ad
litem”.
[13]
What is noticeable from the language of these provisions is primarily
that it empowers individuals’
owners of units in a sectional
tittle scheme to institute proceedings not in their own interest but
for and on behalf of the body
corporate. That much is clear from the
text read with the heading which states; “
Proceedings on
behalf of Bodies Corporate”
. Seen in this context the
conditions imposed on an owner who seeks to institute proceedings on
behalf of the body corporate are
understandable. The institution of
the proceedings has a risk of a costs order which may be issued
against the body corporate,
in the event of losing a case.
[14]
It is clear that before an owner may be permitted to act on behalf of
the body corporate, he/she must show
that the body corporate has
failed to institute proceedings in a case where it suffered damages
or a loss has been deprived of
a benefit. Even then, the authority to
initiate proceedings is not available to all owners but is restricted
to only those who
can show that they suffered a damage or a loss or
has been deprived of a benefit.
[
15]
But before such owner may institute the
proceedings, he/she must give written notice to the body corporate,
calling upon it to institute
proceedings within a month. If the body
corporate does initiate proceedings, the owner’s entitlement to
do so falls away.
He/she cannot pursue the appointment of a
curator
ad litem
. On the contrary if the body
corporate fails to commence proceedings within a month, the owner
concerned may seek the appointment
of a
curator
ad litem
.
The Court on such
application, if it is satisfied-
(a) that t
he
body corporate has not instituted such proceedings;
(b)
that
there are prima facie grounds for the institution of proceedings; and
(c)
that
an investigation into such grounds and the desirability of the
institution of such proceedings if satisfied will appoint provisional
curator ad litem
and direct him or her to conduct an investigation into the matter and
to report to the Court on the return day of the provisional
order.
[16]
In applying the above legal prescript to the present case, this court
is not in the possession of a written
notice that was given to the
body corporate. Section 9 (2) (b) provides that if the body corporate
fails to institute the proceedings
within the period referred to in
paragraph (a), the owner may make application to the Court for order
appointing curator ad litem
for the purpose of instituting and
conducting proceedings on behalf of the body corporate. In my
view, the Applicant failed
to comply with the provisions of
Section
9 of the Act
. The is no evidence that the Applicant approached the
body corporate to institute the proceedings as prescribed.
Non-
compliance with section 9 is fatal to the Applicant’s case as
the said provision is peremptory
.
[17]
I agree with the Respondent that the
Applicant lacks
locus standi
and there is no need for me to
traverse the other issues as my finding is dispositive of this
application.
[18]
In the result, the following order is granted:
ORDER
1.
The application is dismissed with costs.
LEKHOABA,
AJ
APPEARANCES:
On
behalf of the Applicant:
Adv.
LBJ Moeng.
BLAIR
ATTORNEYS
BLOEMFONTEIN
On
behalf of the Respondent:
MADELEINE
KOLLER
DU
PLOOY ATTORNEYS
BLOEMFONTEIN