Du Rand NO v Faerie Glen Renaissance Scheme (302/08) [2009] ZASCA 122; [2010] 1 All SA 383 (SCA) (28 September 2009)

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Du Rand NO v Faerie Glen Renaissance Scheme (302/08) [2009] ZASCA 122; [2010] 1 All SA 383 (SCA) (28 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 302/08
DEON DU RAND NO First Appellant
ANDRÉ DU RAND NO Second Appellant
JOHAN DU RAND NO Third Appellant
ELIZABETH SUSANNA DU RAND NO Fourth Appellant
ELMARIE BOTES NO Fifth Appellant
F G J WIID Sixth Appellant
and
THE FAERIE GLEN RENAISSANCE SCHEME Respondent
Neutral citation:
Du Rand NO v Faerie Glen Renaissance Scheme
(302/08)
[2009] ZASCA 122
(28 September 2009)
Coram:
STREICHER, LEWIS, SNYDERS JJA, LEACH and BOSIELO AJJA
Heard:
21 AUGUST 2009
Delivered:
28 SEPTEMBER 2009
Summary:
Applicability of Housing Development Schemes for
Retired Persons Act 65 of 1988 to a sectional title scheme.
ORDER
On appeal from: Pretoria High Court (Visser AJ
sitting as court of first instance).
The following order is made:
The appeal is dismissed with costs.
JUDGMENT
SNYDERS JA: (Lewis JA, Leach and Bosielo AJJA
concurring)
[1]
This case concerns a
development scheme in terms of the Sectional Titles Act, namely the
Faerie Glen Renaissance Scheme (the scheme).
1
The body corporate of the scheme, the respondent, applied to the
Pretoria High Court to grant an amendment to some of its management

rules. The application took an eventful procedural path - irrelevant
for current purposes – and ultimately came before Visser
AJ who
granted an amendment to rules 1 and 2 in the terms sought at that
stage.
2
Leave to appeal was granted by Visser AJ to this court.
[2]
The first five
appellants are the trustees of the Ameva Trust. The trust is the
owner of one of the 150 units in the scheme and
so is the sixth
appellant. No other owner opposed any of the relief sought by the
respondents. The opposition by the appellants
to the amendments
sought was long-standing and unrelenting with the result that it was
common cause that it would have been impossible
for the respondent to
effect the amendments by way of a unanimous resolution as required by
s 35(2)(a) of the Sectional Titles
Act.
3
The respondent therefore approached the court in terms of s 1(3A) of
the Sectional Titles Act, which authorises a body corporate
that is
unable to obtain a unanimous resolution to ‘approach the court for
relief’, subject to the provisions of s 1(3)(c).
4
[3]
In respect of the
respondent’s reliance on s 1(3A) the appellants strenuously argued
three points: that the meeting held by the
respondent on 22 November
2005 to obtain a unanimous resolution to amend the management rules,
was not properly constituted; that
the respondent was unable to show
that a majority at that meeting authorised the respondent to approach
the court in terms of s
1(3A); and that the respondent required the
written consent of the appellants, as owners whose rights would be
adversely affected
by the amendments, before the court could be
approached in terms of s 1(3A).
[4]
In support of their
first point the appellants submitted that, before the respondent
could approach the court in terms of s 1(3A),
it had to show that it
attempted to obtain a unanimous resolution at a meeting where 80 per
cent of all members of the body corporate
(reckoned in number) and 80
per cent of all members (reckoned in value) - the percentages
necessary for a unanimous decision in
terms of s 1 - was present.
5
[5]
It is unnecessary to
indulge in the detailed head and value count of attendees that the
appellants embarked on. It is sufficient
to state that the point
arose because the counting was complicated by belated proxies to vote
in cases where trusts were owners
of units and by the attendance of
couples of whom one voted without a proxy from the other. A head and
value count is unnecessary
as the Sectional Titles Act does not
require a vote at a formally constituted meeting as a pre-condition
to an approach to court
for relief in terms of s 1(3A). The only
requirement apparent from s 1(3A) read with s 35(2)(a) – ignoring
the proviso in s 1(3)(c)
for the moment – is a purely factual one,
namely that the body corporate must have been unable to obtain a
unanimous decision.
Any variety of facts may be sufficient to
persuade a court, at the hearing, of that. In this case the history
of the attempts to
amend the rules and the animosity between the
appellants and the respondent overwhelmingly indicate that a
unanimous decision was
impossible. What is more, the parties were
agreed on this. Therefore the factual requirement of s 1(3A) was
satisfied and the court
below was entitled to hear the matter on that
basis.
[6]
On the second point
raised by the appellants a minor correction to the appellants’
calculations of the number of attendees and
votes at the meeting of
22 November 2005, to take account of couples that attended the
meeting and one of them voted without a
written proxy from the other,
shows that a majority of owners attended and voted in favour of an
application in terms of s 1(3A).
In addition, the appellants have
been the only two of 150 unit owners who have opposed the amendments.
Since the litigation started
during February 2006 nobody else has
joined their cause. As in
Unlawful
Occupiers, School Site v City of Johannesburg
2005 (4) SA 199
(SCA) at 207H-I the question can be asked whether it
is conceivable that the application would have been launched with the
knowledge,
but against the wishes, of the majority of the owners in
the scheme. As in that case the question can be answered only in the
negative.
Furthermore, if the appellants seriously doubted whether
the respondent had the authority to instruct an attorney to institute
and conduct the proceedings on behalf of the respondent, the
procedure in Rule 7(1) should have been invoked.
6
The reasons furnished in this judgment further illustrate that the
trustees acted in the best interests of the body corporate by

pursuing the amendments to rules 1 and 2.
[7]
The third point, the
reliance on the absence of written consent in terms of s 1(3)(c) of
the Sectional Titles Act, brings us to
the merits of the appeal. The
appellants’ case is that the amendments to rules 1 and 2 seek to
apply the Housing Development
Schemes for Retired Persons Act (the
Retirement Housing Act)
7
to the scheme for the first time with the result that their
proprietary rights would be adversely affected.
[8]
Rule 1 of the
respondent’s management rules, in its un-amended form, is rule 1 of
the standard rules of any newly established
sectional title scheme
contained in annexure 8 to the regulations in terms of the Sectional
Titles Act.
8
The amendment granted replaced the standard rule 1 with the
following:
‘
Die
Regspersoon Faerie Glen Renaissance is op 18 Augustus
2000 vir Deeltitelskema no. SS416/2000 ingestel volgens artikel 36(1)
van die Wet Op Deeltitels Wet 95 van 1986. Die skema is geleë
te
Erf 3781, Faerie Glen, Uitbreiding 45, Pretoria, en is in 18 fases,
elk met ‘n eie deeltitelnommer, ontwikkel ooreenkomstig
die
bepalings van Wysigingskema 8270 van die
Pretoria-dorpsbeplanningskema, 1974, wat onder andere bepaal dat
wooneenhede opgerig
sal word vir ‘n afree-oord vir bejaardes.
(a) Vanweë die aard van die
ontwikkeling as aftree-oord, is die Wet op
Behuisingsontwikkelingskemas vir Afgetrede Persone,
Wet 65 van 1988,
ook van toepassing.
(b) Die
Bestuursreëls van die Regspersoon van die Faerie Glen
Renaissance Skema No SS 416/2000 is eenvormig van toepassing
op alle
eienaars en okkupeerders van die wooneenhede in die 18 fases van die
ontwikkelingskema.’
9
[9]
In this court the
appellants confined their objection to paragraph (a) of the
amendment. The fact that they did does not affect
the outcome of the
appeal.
[10]
Rule 2 of the
respondent’s management rules contains the definitions that assist
in the interpretation of the rules. The amendment
that was granted
inserted an additional definition, as para 2(d):
‘
beteken
“
aftree-oord”
‘n behuisingsontwikkelingskema vir afgetrede persone vir die
huisvesting van inwoners met ‘n minimum ouderdom
van 50 jaar elk of
in geval van ‘n egpaar as inwoners moet een van die gades ten tye
van okkupasie minstens 50 jaar oud wees;’.
10
[11]
The answer to the
question whether the Retirement Housing Act is applicable to the
Faerie Glen Renaissance Scheme even before the
amendments to rules 1
and 2 resolves all of the remaining issues in this appeal.
[12]
Agricultural land
was proclaimed as part of the Pretoria Town-Planning Scheme 1974 for
the development of the scheme.
11
Two erven, 3773 (previously Erf 1) and 3774 (previously Erf 2), were
consolidated into Erf 3781. In terms of Amendment Scheme 8270
the
area constituting the former Erf 3773 was zoned for ‘group housing’
with the explicit provision that ‘dwelling-units
for a retirement
centre for the aged be erected’.
12
The area constituting the former Erf 3774 was zoned for ‘special
use’ with the explicit provision that it be used for ‘communal

and related facilities which in the opinion of the City Council can
be associated with a security retirement centre for the aged’.
13
The conditions of proclamation and the zoning requirements of the
land on which the scheme was established therefore restricted
the
developer as to the nature of the development on that land.
[13]
It is not
surprising then that a sectional title scheme was developed on the
relevant land and that ownership of the units were
acquired from the
developer in terms of the Sectional Titles Act. The developer, in the
agreements of sale of units of the scheme,
complied with the newly
established township planning provisions and zoning requirements. As
the Retirement Housing Act has as
its purpose the regulation of
‘[t]he alienation of certain interests in housing development
schemes for retired persons; and
to provide for matters connected
therewith’, it is also not surprising that the agreements of sale
complied with the Retirement
Housing Act.
[14]
In clause 1 of the
agreement between the developer and the purchasers of units in the
scheme, which contains several definitions,
‘wetgewing’ is
defined as the Retirement Housing Act and the Sectional Titles Act.
Clause 3.5 of the agreement provides for
ss 4(3) and 8 of the
Retirement Housing Act to be applicable. These sections deal with
instances where the purchaser is entitled
to cancel the agreement as
a result of the developer’s failure to deliver to the purchaser a
certificate of completion prior
to occupation of the unit sold. In
compliance with the zoning requirements the agreement provides for
the creation of basic security,
community and nursing services
related to a retirement village for the elderly. It specifically
provides that a unit is sold subject
to not only the conditions of
title, but the applicable township planning provisions. Clause 14.3
of the agreement reads:
‘
In die
geval van ‘n enkel Okkupeerder, of twee afsonderlike Okkupeerders,
is die minimum ouderdom vir Okkupeerders 50 jaar. In
geval van ‘n
egpaar as Okkupeerders, moet een van die twee gades minstens 50 jaar
oud wees. Die Koper bevestig voldoening aan
hierdie
ouderdomsbepaling.’
14
[15]
In the same
explicit terms the agreement restricts, in clause 14.6, the right of
any purchaser of a unit or successive purchaser
to sell, lease or
transfer the rights acquired in the agreement of sale if such sale,
lease or alienation has the consequence that
the unit is occupied by
persons in contravention of the provisions pertaining to age.
15
The agreement contains all the essential provisions prescribed in s 4
of the Retirement Housing Act for an agreement in terms whereof
a
developer alienates a housing interest in terms of the Act.
[16]
Two provisions in
the agreement motivated the appellants to argue that the agreement
does not comply with the Retirement Housing
Act and that the Act is
therefore not applicable. First the agreement, in clause 2.2,
specifies that the title deed has not been
endorsed in accordance
with the provisions of s 4C of the Retirement Housing Act.
16
Second the developer, in clause 14.5 of the agreement, reserved the
right to sell up to 20 per cent of the units to persons under
the age
of 50 years.
17
[17]
Section 4C of the
Retirement Housing Act is not applicable to the alienation of a right
of ownership in a development scheme, as
in this case, but only a
right of occupation. Clause 2.2 of the agreement does no more than
state exactly that. This clause indicates
an attempt to comply with
the Retirement Housing Act, by explaining why there is no need to
comply with s 4C of the Act. In any
event non-compliance with s 4C
could not render the Act inapplicable.
[18]
The reservation, in
clause 14.5 of the agreement, of the right to sell up to 20 per cent
of the units to persons under the age of
50 years in clause 14.5 of
the agreement does not violate the provisions of the Retirement
Housing Act which prescribes the age
of occupants as opposed to the
age of owners. Only the right to sell ownership in a unit to a person
under the age of 50 years
is reserved in the agreement. Clause 14.6,
discussed above, would remain equally applicable to the 20 per cent
owners younger than
50 years in relation to the restriction of the
age of occupancy to persons 50 years or older.
[19]
This distinction
between the age of the owner and the age of the
occupier that the developer
respected in clause 14.5 originates from s 7(1), read with the
definition of ‘retired person’, of
the Retirement Housing Act:
‘
After a
housing interest has been transferred to or has otherwise been vested
in a person by virtue of a contract, no person other
than a retired
person or the spouse of a retired person may occupy the land to which
that housing interest relates, except with
the written consent of all
the holders of housing interest
s
in the housing development scheme concerned.’
Section 1 defines ‘retired person’ as ‘a
person who is 50 years of age or older’.
18
[20]
A ‘housing
interest’ is defined in the Retirement Housing Act and includes the
‘right to claim transfer of the land to which
the scheme relates’.
19
If that leaves any doubt whatsoever as to whether the Retirement
Housing Act is, by its own terms, applicable to this particular

sectional title scheme, the definition of ‘housing development
scheme’ removes any doubt:
‘“
Housing
development scheme” means any scheme, arrangement or undertaking –
(a) in terms of which housing interests are alienated
for occupation
contemplated in section 7, whether the scheme, arrangement or
undertaking is operated pursuant to or in connection
with a
development scheme or a share block scheme or membership of or
participation in any club, association, organization or other
body,
or the issuing of shares, or otherwise, but excluding a property
time-sharing scheme;’
A ‘development scheme’ is defined
as
having the meaning
as it does in the Sectional Titles Act and includes a sectional title
scheme such as is currently under consideration.
[21] When the
provisions
of the Retirement Housing Act are applied to the facts it is clear
that the developer sold and transferred a ‘housing
interest’ –
ownership of a unit – in a ‘housing development scheme’ – a
sectional title scheme – for occupation by
‘retired persons or
the spouse of a retired person’ – a person who is 50 years of age
or older or the spouse of such a person
– as contemplated in s 7.
In these circumstances s 7 applies.
[22
] The conclusion is
inevitable: the Faerie Glen Retirement Scheme was developed in
compliance with the provisions of the Pretoria
Town-Planning Scheme
1974; the agreement of sale in terms of which the developer sold the
units complies with the provisions of
the Retirement Housing Act; and
the Retirement Housing Act has been applicable to the Faerie Glen
Renaissance Scheme since its
inception. The amendment of rules 1 and
2 of the management rules to reflect the existing state of affairs
serves only to clarify
and explicitly protect the interests of
existing and prospective owners of units in the scheme. It certainly
does not adversely
affect the rights of the appellants.
[23
] The court a quo
awarded some of the costs of the application to the appellants,
largely as a result of the abandonment by the
respondent of the
greater part of the relief sought in the notice of motion at the
commencement of the hearing in the court below.
The appellants urged
interference with that costs order to include the costs of two
counsel. There is no basis on which to interfere
with the discretion
exercised by the court a quo.
[24
] The appeal is
dismissed with costs.
______________________
S SNYDERS
Judge of Appeal
STREICHER JA
(LEWIS JA, LEACH and BOSIELO AJJA concurring)
[25] I agree that the appeal should be dismissed with costs. In
regard to my colleague Snyders’ dismissal of the first two points

argued by the appellant and referred to in paragraph 3 of her
judgment I have nothing to add. I do however wish to state my reasons

for dismissing the third point argued by the appellant.
[26] The Faerie Glen Renaissance Scheme (the FGR Scheme) is a
development scheme in terms of the
Sectional Titles Act 95 of 1986
.
In terms of
s 35(1)
of that Act a development scheme shall, as
from the date of establishment of a body corporate, be controlled and
managed, subject
to the provisions of the Act, by means of rules.
Section 35(2)(a) provides that the rules should comprise, amongst
other things,
management rules which may be amended from time to time
by unanimous resolution of the body corporate. A unanimous resolution
is
defined in
s 1
of the
Sectional Titles Act but
the
definition is qualified in
s 1(3)(c)
to the effect that where
the resolution ‘adversely affects the proprietary rights or powers
of any member as owner, the resolution
shall not be regarded as
having been passed unless such member consents in writing thereto’.
[27] The appellants contended that the proposed amendments of the
management rules quoted in paragraphs 8 and 10 of my colleague’s

judgment, by providing that the Housing Development Schemes for
Retired Persons Act 65 of 1988 (the Retired Persons Act) is
applicable
to the FGR Scheme adversely affects their proprietary
rights as owners and that these amendments therefore required their
consent
in writing. The respondent, on the other hand, contended that
the Retired Persons Act applied to the FGR Scheme and that the
statement
in the amended rule merely stated what the existing
position was. The issue to be decided is therefore whether or not the
Retired
Persons Act applied to the FGR Scheme.
[28] The purpose of the Retired Persons Act is stated in the long
title to be ‘to regulate the alienation of certain interests
in
housing development schemes for retired persons; and to provide for
matters connected therewith’. The Act prescribes formalities
in
respect of contracts for the alienation of housing interests to a
retired person (s 2); it prescribes in what language
a contract
should be drawn up (s 3) and what the contents of the contracts
should be if the seller concerned is a developer
(s 4); it deals
with rights of occupation as defined in the Act (s 4A, B and C),
which are not of relevance in respect
of the FGR Scheme; it provides
that if a facility is to be maintained for the care of debilitated
persons the facility would be
deemed to be a home for the aged as
defined in s 1 of the Aged Persons Act 81 of 1967 (s 5); it
contains restrictions
against the receipt of consideration by
developers (s 6); it contains a limitation of occupation of land
to which housing
interests as defined in the Act relate (s 7);
it prescribes what the consequences of contracts which are void or
are cancelled
would be (s 8) and what relief a court may grant
in respect of contracts (s 9); it provides for the granting of
exemptions
from the operation of the Act by the Minister concerned
(s 10); and it prescribes what regulations may be made by the
Minister
(s 11).
[29] The only provisions of the Retired Persons Act which are
relevant in respect of the management of the FGR Scheme as opposed
to
the contracts for the alienation of a housing interest in respect of
the scheme and the receipt of consideration by a developer
are
therefore the provisions in respect of a facility for the care of
debilitated persons, the provision containing a limitation
to the
occupation of land to which housing interests relate and the
provision relating to the granting of exemptions. In the case
of the
FGR Scheme no facility is to be maintained for the care of
debilitated persons. It follows that the statement in the amended

rule 1 that the Retired Persons Act is applicable means no more than
that sections 7 and 10 of that Act are applicable to the scheme.
If
s 7 is applicable it follows that s 10, which authorises
the Minister to grant an exemption from the operation of
any
provision of the Act, is applicable. In the result it remains to
determine only whether s 7 of the Act is applicable to the
FGR
Scheme.
[30] Section 7 reads as follows:
‘
7(1) After a housing interest
has been transferred to or has otherwise been vested in a person by
virtue of a contract, no person
other than a retired person or the
spouse of a retired person may occupy the land to which that housing
interest relates, except
with the written consent of all the holders
of housing interests in the housing development scheme concerned.’
[31] A retired person is defined as a person who is 50 years of age
or older. It is the applicability of the injunction in s 7
that
‘no person other than a retired person or the spouse of a retired
person may occupy the land to which that housing interest
relates’
which is the real bone of contention between the parties, hence the
appellants’ objection to the definition of aftree-oord
in the
amended rule 2(d) namely: ‘`n behuisingsontwikkelingskema vir
afgetrede persone vir die huisvesting van inwoners met `n
minimum
ouderdom van 50 jaar elk of in geval van `n egpaar as inwoners moet
een van die gades ten tye van okkupasie minstens 50
jaar oud wees’.
[32] The injunction in s 7 is applicable after a housing
interest in a housing development scheme has been transferred to
or
has otherwise been vested in a person by virtue of a contract. In
terms of s 1 a housing interest in respect of a housing

development scheme means, amongst other things, any right to claim
transfer of the land to which the scheme relates. A housing

development scheme is defined as meaning, amongst other things, a
scheme in terms of which housing interests ie the right to claim

transfer of land, are alienated for occupation contemplated in
section 7 pursuant to or in connection with a development scheme;
a
development scheme means a development scheme as defined in
section
1(1)
of the
Sectional Titles Act 95 of 1986
; and occupation
contemplated in
s 7
means occupation by retired persons or the
spouses of retired persons.
[33] ‘Contract’ is defined in
s 1
as meaning ‘a document
in terms of which a housing interest is alienated to a retired person
. . .’. Like all the other definitions
in
s 1
the definition is
qualified by the introductory phrase ‘unless the context indicates
otherwise’. In the case of
s 7
the context does indicate
otherwise. If the contract referred to in the section was intended to
be a contract with a retired person
the section would not have read
‘after a housing interest has been transferred to . . . a person by
virtue of a contract’ it
would have read ‘after a housing
interest has been transferred to . . . a retired person’. More so
in the light of the fact
that in the very same section reference is
made to a ‘retired person’. Compare in this regard
s 2(1)
which provides that ‘no alienation of a housing interest to a
retired person shall . . . be of any force or effect, unless it
is
contained in a contract . . .’. Moreover, if ‘contract’ in
s 7
were to be interpreted to mean a document in terms of which a housing
interest is alienated to a retired person it would mean that
in the
case of an alienation of a housing interest to a company or a trust
for occupation contemplated in
s 7
in connection with a
sectional title development scheme ie a housing development scheme,
the section would not apply. That could
in my view not have been the
intention of the legislature.
[34] The members of the respondent obtained ownership of units in the
FGR Scheme ie in a development scheme in terms of contracts
subject
to the same terms and conditions. One of the terms of the contracts
was that in the case of a single occupier the minimum
age of the
occupier had to be 50 years and in the case of married occupiers one
of the spouses had to be a minimum of 50 years
of age. The FGR Scheme
is therefore a housing development scheme as defined in the Retired
Persons Act and the transfer of the
units in the scheme constituted
the transfer of housing interests by virtue of a contract. It follows
that in terms of s 7
‘no person other than a retired person or
the spouse of a retired person may occupy the land to which the
transferred housing
interests relate’.
[35] For these reasons I conclude that the Retired Persons Act is
applicable to the FGR Scheme as stated in the amended rule 1
and that
the appellants’ property rights or powers as members were not
adversely affected by the amendment.
_________________
P E STREICHER
JUDGE OF APPEAL
APPEARANCES:
For Appellant: J G Naudé
Instructed by: E Y Stuart Attorneys Incorporated, Pretoria
McIntyre & van Der Post, Bloemfontein
For Respondent: M Helberg SC
Instructed by: Bertus Roux Attorneys Incorporated, Pretoria
Du Toit Attorneys, Bloemfontein
1
The
Sectional Titles Act
95 of 1986
.
2
Substantially more elaborate relief was sought in
the notice of motion, but abandoned at the hearing of the matter.
3
Section 35(2)(a):
‘The rules shall provide for
the control, management, administration, use and enjoyment of the
sections and the common property,
and shall comprise – (a)
management rules . . . which rules may be substituted, added to,
amended or repealed from time to
time by unanimous resolution of the
body corporate as prescribed by regulation;’
4
Section 1(3A):
‘If
a body corporate is unable to obtain a unanimous resolution, it may,
subject to the provisions of subsection (3)(c), approach
the court
for relief.’
Section 1(3)(c):‘(3)
For the purposes of the
definition of ‘unanimous resolution’ in subsection (1) – . . .
; (c) where the resolution in question
adversely affects the
proprietary rights or powers of any member as owner, the resolution
shall not be regarded as having been
passed unless such member
consents in writing thereto.’
5
In
s 1
‘Unanimous resolution’ is defined as
‘a resolution – (a) passed unanimously by all the members of a
body corporate who
are present or represented by proxy or by a
representative recognized by law at a general meeting of the body
corporate of which
at least 30 days’ written notice, specifying
the proposed unanimous resolution, has been given, and at which
meeting at least
80% of all the members of a body corporate
(reckoned in number) and at least 80% of all the members (reckoned
in value) are present
or so represented: Provided that in
circumstances determined in the rules, a meeting of the body
corporate may be convened for
a date 30 days or less after notice of
the proposed resolution has been given to all the members of the
body corporate. . . .’
6
Unlawful Occupiers, School Site
paras 24 to 29.
7
65 of 1988.
8
‘
1. The Rules contained in
this Annexure shall not be added to, amended or repealed except in
accordance with section 35(2)(a)
of this Act, and subject to the
provisions of section 35(3) and (5) of the Act.’
9
My translation: ‘The body corporate of the
Faerie Glen Renaissance Scheme was established on 18 August 2000 in
respect of sectional
title scheme no SS416/2000 in terms of
s 36(1)
of the
Sectional Titles Act 95 of 1986
. The scheme is situated at
erf 3781, Faerie Glen, Extension 45, Pretoria and was developed in
18 phases, each with its own sectional
title number, in accordance
with the provisions of Amendment Scheme 8270 to the Pretoria
Town-Planning Scheme 1974, which provides,
inter alia, for the
development of dwelling units for a retirement centre for the aged.
(a) Due to
the nature of the development as a retirement centre, the Housing
Development Schemes for Retired Persons Act 65 of
1988 is also
applicable.
(b) The
management rules of the Faerie Glen Renaissance Scheme No SS416/2000
are uniformly applicable to all owners and occupants
of the units in
the 18 phases of the development scheme.’
10
My translation: ‘“retirement village” means a housing
development scheme for retired persons for the accommodation of
occupants of at least 50 years of age or in the case of occupation
by a married couple, one of them shall, at the time of occupation,

be at least 50 years old.’
11
Amendment Scheme 8270 to the Pretoria
Town-Planning Scheme 1974, Administrator’s Notice 2027, 20
November 1974, promulgated
on 28 June 2000.
12
Annexure B5969 to the Pretoria Town-Planning
Scheme 1974.
13
Annexure B5970 to the Pretoria Town-Planning
Scheme 1974.
14
My translation: ‘In the event of a single
occupant, or two independent occupants, the minimum age for
occupants is 50 years.
In the event of a married couple, one of the
spouses has to be at least 50 years old. The purchaser confirms
compliance with
this age requirement.’
15
Clause 14.6: ‘Die koper sal nie geregtig wees
om sy regte in terme van hierdie Ooreenkoms te vervreem, te verhuur
of oor te
maak aan ‘n derde party indien sodanige vervreemding of
verhuring meebring dat die Eenheid geokkupeer word deur persone wat
nie aan die ouderdomsbepaling hierbo genoem, of aan enige ander
bepaling van hierdie Ooreenkoms, voldoen nie. Opvolgers in Titel
van
die Koper sal onderworpe wees aan die verpligtinge van die Koper
soos vervat in hierdie Ooreenkoms en die Reëls van
die
Bestuursvereniging.’
16
Clause 2.2: ‘Die Titelakte van die grond is nie
geëndosseer soos in Artikel 4C van die Wet bedoel nie,
aangesien die regsgrondslag
van die vervreemding van
Deeltiteleiendomsreg in terme van die Deeltitelwet is.’
17
Clause 14.5: ‘Dit is die verklaarde voorneme
van die Maatskappy om te verkry dat Eiendomsreg op Eenhede van die
Ontwikkeling
oorwegend toegeken sal word aan Kopers bo die ouderdom
van 50 jaar. Die Maatskappy behou egter uitdruklik die reg voor om
huidiglik
en in die toekoms tot 20% van die Eenhede van die
Ontwikkeling te vervreem aan persone onder die ouderdom van 50 jaar
en die
Koper stem onherroeplik toe tot sodanige vervreemding.’
18
In so far as ‘contract’ is defined as meaning
‘a document in terms of which a housing interest is alienated to a
retired
person. . .’ it does not change this meaning of s 7(1) for
the reasons stated in para 33 of the judgment of Streicher JA. Maybe

for those reasons the point was not argued before us.
19
Section 1: ‘“housing interest”, in relation
to a housing development scheme, means any right to claim transfer
of the land
to which the scheme relates, or to use or occupy that
land.’