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[2023] ZAKZPHC 25
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Rampul v Trustees of Mangrove Beach Centre : Body Corporate and Others (9823/2022P) [2023] ZAKZPHC 25 (3 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 9823/2022P
In
the matter between:
HIRALAL
RAMPUL
APPELLANT
and
TRUSTEES
OF MANGROVE BEACH CENTRE:
FIRST RESPONDENT
BODY
CORPORATE
THE
BODY CORPORATE: MANGROVE
SECOND RESPONDENT
BEACH
CENTRE
THULANE
KHAMBULE
N.O.
THIRD RESPONDENT
COMMUNITY
SCHEMES OMBUD SERVICE
FOURTH RESPONDENT
Coram:
Mossop J
Heard:
3 March 2023
Delivered:
3 March 2023
ORDER
The following order is
made:
1.
The application for leave to appeal is refused
with costs.
JUDGMENT
MOSSOP
J
:
[1]
On 15 December 2022 I delivered a written
judgment in an opposed appeal brought in terms of section 57 of the
Community Schemes
Ombud Service Act 9 of 2011. Those parties that
played an active role in the appeal were the applicant, who was the
appellant in
the appeal, and the first and second respondents who
opposed that appeal. I shall refer to the appellant as the applicant
and I
will continue to refer to the first and second respondents by
those names.
[2]
In the appeal, the applicant appealed
against a decision by the third respondent delivered on 28 June 2022
not to grant him relief
and sought the setting aside of that order
and a declaration from this court that certain special rules that are
of application
to the second respondent, of which the applicant is a
member, are inconsistent with the provisions of the Sectional Titles
Schemes
Management Act 8 of 2011 and are invalid. Certain alternative
relief was also claimed by the applicant.
[3]
I dismissed the
appeal, with costs. My judgment on the issues is comprehensive and I
stand by the reasons set out therein.
[4]
What is now before me is an opposed
application for leave to appeal against my judgment at the instance
of the applicant. It is
opposed by the first and second respondents.
This morning when the application for leave to appeal was argued, as
in the appeal,
the applicant was represented by Mr Omar and the first
and second respondents was represented by Ms Nicholson. I thank both
of
them for their submissions and for their discipline in complying
with the time limits that I requested them to adhere to when
addressing
me. Such time limits were necessary given this court’s
other duties.
[5]
Section
17 of the Superior
Courts Act, 10 of 2013 (the Act) regulates applications for leave
to appeal from a decision of a High
Court. It provides as follows:
‘
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that –
(a)
(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling
reason why the appeal should be heard, including conflicting
judgments on the matter under consideration;
(b)
the decision sought on appeal does not
fall within the ambit of section 16(2)(a); and
(c)
Where the decision sought to be appealed
does not dispose of all the issues in the case, the appeal would lead
to a just and prompt
resolution of the real issues between the
parties.'
[6]
Prior
to the enactment of the Act, the applicable test in an application
for leave to appeal was whether there were reasonable prospects
that
the appeal court may come to a different conclusion than that arrived
at by the lower court. The enactment of the Act has
changed that test
and has significantly raised the threshold for the granting of leave
to appeal.
[1]
The use of the
word ‘would’ in the Act indicates that there must be a
measure of certainty that another court will
differ from the court
whose judgment is sought to be appealed against.
[7]
Leave
to appeal may thus only be granted where a court is of the opinion
that the appeal would have a reasonable prospect of success,
and
which prospects are not too remote.
[2]
As
was stated by Schippers JA in
MEC
for Health, Eastern Cape v Mkhitha and Another
[3]
:
‘
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.’
[8]
The applicant has delivered a lengthy
notice of application for leave to appeal, comprising of 25 pages, on
which pages nine grounds
are set out in granular detail identifying
where I am alleged to have erred, the inference being that
there
are reasonable prospects that another court would grant a different
order to the order granted by me.
[9]
Before dealing with the merits of the
application, something needs to be said about the delay in hearing
this application. It is
my habit to hear applications for leave to
appeal as soon as practically possible after they have been filed.
This application
for leave to appeal was delivered on 5 January 2023,
before the commencement of the new judicial year. I was, however, on
recess
duty at that time and received the notice of application on
the day that it was filed. Unfortunately, I could not deal with the
application during the first session of the first term of 2023 as I
was assigned circuit court duties in Madadeni in Northern
KwaZulu-Natal. I returned last week from such duties. That explains
the delay.
[10]
During the period that I spent on
circuit, I had ample time to contemplate the merits of this
application and this morning I have
further considered the arguments,
authorities and submissions of the parties addressed to me by Mr Omar
and Ms Nicholson.
[11]
The second respondent has existed since
1965, when it was initially a share block scheme. In 1994 it was
converted to a sectional
title scheme and in that year, the special
rules that the applicant complains of came into being. The scheme is
a mixed use scheme,
with the bottom sections of the building being
commercial sections and the sections above the commercial sections
being residential
sections. The scheme is a sizeable one, having 257
sections in all. Of these sections, 235 are residential sections. In
the previous
proceedings, the applicant complained that the special
rules are unfair, unequal and prejudicial to the owners of
residential units
and that they unfairly discriminate against owners
of residential sections in favour of the owners of commercial
sections. The
basis for this complaint is that, as set out in my
judgment,
the owners of commercial
sections are given 75 percent of the vote at general meetings when
the commercial sections only comprise
27 percent of the total area of
all the sections in the second respondent. The owners of residential
sections, which comprise 68
percent of the scheme, only have 25
percent of the vote at such meetings.
[12]
At
this stage, the dissatisfaction with this voting system is the
dissatisfaction of the applicant. What the majority of the owners
of
sections within the second respondent think is not known. While I
found that the judgment of Masipa J in
Central
Plaza Investments 85 (Pty) Ltd v Body Corporate Mangrove Beach
Centre
[4]
did not render the issues before the third respondent
res
judicata
,
what Masipa J said in her judgment is undoubtedly correct:
‘
Mechanisms
exist to amend the rules should they wish to do so. They have not
pursued that recourse which is available to them and
seek for this
court to bypass that process and put in place what they wish to be
the rules of the scheme.’
In
other words, if the applicant is dissatisfied with the special rules,
he needs to challenge them at a meeting of the body corporate
and
have them changed. A court must, as I pointed out in my judgment, act
cautiously when asked to change rules that impact on
other owners of
sections. The rules applicable to sectional schemes constitute a
contract between the body corporate and the individual
owners and, as
was stated in
Wilds
Home Owners Association and others v Van Eeden and others
,
[5]
a court should hesitate to rewrite a bargain struck between members
when the impetus to do so is at the instance of a minority
of
members.
[13]
I consider, briefly, some of the more
important aspects raised by Mr Omar in his detailed notice of
application for leave to appeal.
I make it plain that I do not intend
dealing with each and every allegation made in that substantial
document:
(a)
I do not accept that having found
that the third respondent erred in finding that the issue before him
was
res judicata
,
I was required to allow the appeal and simply refer the matter back
to the third respondent. In his notice of appeal, the applicant
sought the setting aside of the third respondent’s decision and
then required certain declaratory relief to be granted to
him. In the
result, I set aside the decision and then considered the issue of
declaratory relief, but found that it was not capable
of being
granted. The basis upon which I set aside the third respondent’s
decision is irrelevant. The applicant cannot have
it both ways: He
cannot claim relief but then insist that he should only have been
granted half the relief that he claimed;
(b)
Whether Mr Christopher Pearson, who
deposed to the answering affidavit of the first and second
respondents, was conflicted, as alleged
by the applicant is of no
moment. He is a trustee of the second respondent and stated that he
was authorised to act by the board
of trustees and put up an
affidavit confirming this together with a signed resolution of the
trustees of the second respondent;
(c)
There
was no evidence that rules were applied unequally. There was thus no
evidence that some residential owners were subject to
the rules and
that some were not. The same applied in respect of the owners of
commercial sections. There is, moreover, no requirement
that owners
of those two disparate types of sections should be treated equally.
Practical considerations dictate that this simply
cannot occur in a
mixed use scheme. As the applicant himself points out in his
application, rules are to apply equally to owners
of units ‘put
to substantially the same purpose’.
[6]
It is facile to suggest that residential units are put to the same
use, or have the same purpose, as commercial units; and
(d)
Any argument advanced on whether the
applicant himself knew of the special rules is of no moment. An
appeal from the third respondent
lies only in respect of matters of
law and not on issues of fact. Whether the applicant knew of the
existence of the special rules
is a question of fact;
[14]
I have fully addressed the issue of the
reasonableness of the special rules in a mixed use scheme such as the
second respondent
in my judgment and I do not intend restating those
reasons. Given the benefits that commercial sections bring to a mixed
use body
corporate, I am unable to agree with the applicant that the
special rules are unconstitutional or contrary to public policy or
discriminatory in their nature.
[15]
Mr Omar has further submitted in his
notice of appeal that there are compelling reasons why an appeal
should be allowed in the matter.
The ordinary dictionary meaning of
‘compelling’
is
attractive, or irresistible, or very convincing.
Compelling
reasons are allegedly to be found in this matter in the fact that
there is an absence of judicial authority on the validity
of special
rules in the context of mixed use schemes. An absence of judicial
authority is not on its own, in my view, a compelling
reason to
permit an appeal. I am, furthermore, unaware of whether other mixed
use schemes have special rules and, if they do, what
the content of
those special rules are. The special rules that I was asked to
consider relate only to the second respondent. I
cannot therefore
agree that there are compelling reasons to allow this appeal.
[16]
Having heard argument on the issue of
leave to appeal prior to the ordinary court day commencing this
morning, I stood the matter
down to consider, and prepare, this
judgment.
[17]
Considering the elevated threshold test
when seeking leave to appeal and the facts in this matter, I am not
persuaded that there
is a reasonable possibility that another court
would come to a different decision than the one to which I came.
[18]
In the circumstances, the application
for leave to appeal is dismissed with costs.
MOSSOP J
APPEARANCES
Counsel
for the applicant
: Mr. M. S. Omar
Instructed
by:
: M. S. Omar and Associates
28 Rhodes Avenue
Westville
Counsel
for the first and second
: Ms. J. Nicholson
respondents
Instructed
by
: Shepstone and Wylie
24 Richefond Circle
Ridgeside
Office Park
Umhlanga
Rocks
Date
of Hearing
: 3 March 2023
Date
of Judgment
: 3 March 2023
[1]
Public Protector of South Africa v Speaker of the
National Assembly and Others
(8500/2022)
[2022] ZAWCHC 222
(3 November 2022) para 14.
[2]
Ramakatsa
and Others v African National Congress and Another
[2021]
JOL 49993
(SCA)
para [10]
[3]
MEC for Health, Eastern Cape v Mkhitha and
Another
[2016] ZASCA 176
para 17.
[4]
Central
Plaza Investments 85 (Pty) Ltd v Body Corporate Mangrove Beach
Centre
,
case number 11454/2015, KwaZulu-Natal Local Division, Durban.
[5]
Wilds
Home Owners Association and others v Van Eeden and others
[2011]
ZAGPPHC 101.
[6]
Section
35(3)
of the
Sectional
Titles Act 95 of 1986
.