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[2021] ZAKZPHC 5
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Tembo NO and Others v Body Corporate of Building known as Vallen Lodge (AR77/2020) [2021] ZAKZPHC 5 (21 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
NOT
REPORTABLE
Appeal Case No:
AR77/2020
In the matter between:
GWENDOLYN
BUYISIWE MLARISI TEMBO N.O. 1
ST
APPELLANT
SHUMANI
TEMBO
N.O. 2
ND
APPELLANT
VIONNE
KHAROTA TEMBO
N.O. 3
RD
APPELLANT
and
BODY CORPORATE OF THE
BUILDING
KNOWN AS VALLEN
LODGE RESPONDENT
ORDER
The
following order is made:
1.
The appeal is dismissed with costs.
JUDGMENT
Delivered:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by email and publication
on
SAFLII. The date and time for hand down is deemed to be on 21
st
January 2021.
Olsen
J (Balton J concurring)
1. This
appeal comes to us from the magistrates’ court for the district
of Lower Tugela, held at KwaDukuza.
In that court the body corporate
of the building known as Vallen Lodge (the respondent before us)
instituted action against the
three appellants in their capacities as
Trustees of the Tembo Family Trust. The claim was a money claim. The
appellants took a
special plea of prescription. The learned
magistrate in the court
a quo
dismissed the special plea. The
appellants ask us to overturn the decision and uphold the plea of
prescription.
2. Although
the judgment of the court
a quo
by no means disposed of the
entire case, it did dispose of a defence raised quite independently
of the plaintiffs claim, and the
allegations made by the plaintiff in
support of its claim. For that reason, and despite the fact that the
proceedings in the magistrates’
court are not yet over, the
order made by the magistrate is appealable. (See
Durban’s
Water Wonderland (Pty) Limited v Botha and Another
1999 (1) SA
982
(SCA) at 992 – 993.)
3. The
appellants own a unit in Vallen Lodge which has an outside patio. It
is set over a unit below owned by the
Lane family. The Lane family
complained that it was experiencing damp problems which they feared
was attributable to the failure
of the waterproofing on the
appellants’ patio. Before its repeal
s 44(1)(c)
of the
Sectional Titles Act, No. 95 of 1986
provided that it is the duty of
an owner of a unit to repair and maintain the unit in a good state of
repair. The section was repealed
in 2011 and a like duty was imposed
in terms of s 13(1)(c) of the Sectional Titles Schemes Management Act
No. 8 of 2011.
4. Rule
70 of the management rules of Vallen Lodge provides as follows.
“
If an owner –
(a) fails
to repair or maintain his section in a state of good repair as
required by s 44(1)(c) of the Act;
or
(b) …,
and any such failure
persists for a period of 30 days after the giving of written notice
to repair or maintain given by the trustees
or the managing agent on
their behalf the Body Corporate shall be entitled to remedy the
owner’s failure and to recover the
reasonable costs of doing so
from such owner.”
5. In
its particulars of claim the respondent pleaded that the 30 days
written notice contemplated by the management
rule was given to the
appellants requiring them to repair their section by waterproofing
the patio, and that the appellants failed
to comply with the notice.
The respondent pleaded further that in those circumstances it carried
out the necessary repairs at a
cost of some R176 000 which had to be
refunded by the appellants to the respondent, something they refused
to do.
6. In
their special plea the appellants asserted that the respondent knew
of the leaking problem at the latest
by 9 July 2012 (this allegation
is implicit in the references to an email and reports attached to it
in paragraphs 1 and 2 of the
special plea). The appellants went on to
plead that the respondent accordingly “knew all the material
facts concerning its
claim for damages against the defendants by, at
the latest, 9 July 2012”. (The fact that the claim is not one
for damages
can be overlooked.) The plaintiff goes on to plead that
summons was only served on 1 June 2016, a date “more than 3
years
after the date upon which the plaintiff’s claim arose”.
7. It
was agreed in the court below that the special plea would be dealt
with separately and first; and that neither
party had any need to
lead evidence. The lawyers would argue off bundles of documents which
were handed in and which recorded the
history of the matter.
8. There
is no need to go into the details of the history of the matter beyond
the following.
(a) Following
the refusal of the appellants to allow the respondent access to the
patio in order to determine
whether it was the origin of the damp
problem experienced by the Lane family, the respondent obtained a
court order allowing such
access in December 2013.
(b) Following
a report from an expert dated February 2014 advising the respondent
that the origin of the
problem was the appellants’ patio, on 31
March 2014 the appellants were provided with 30 days notice in terms
of management
rule 70 to make the requisite repairs.
(c) The
appellants failed to do so as a result of which the respondent
engaged a contractor to do the work
and made various payments in that
regard to the contractor from May 2014 through to September 2014.
(d) The
summons was then issued and served in 2016, well within a 3 year
period after the respondent had
incurred the costs of repairing the
appellants’ patio.
9. On
the plain wording of management rule 70 the respondent had a right,
but no expressed duty, to repair (ie
waterproof) the appellants
patio. It may be arguable that in particular circumstances a body
corporate has a duty to exercise its
powers under management rule 70,
but that is not something that needs be decided in this case. Such a
duty could not conceivably
arise in the absence of certainty, or
perhaps reasonable certainty, that the repairs in question are
necessary. In this case such
certainty (which is as I understand it
still denied by the appellants) was only achieved in February 2014,
after the intervention
of this court permitting the respondent access
to the site.
10. Management
Rule 70 is quite clear. The respondent’s right is to “recover
the reasonable costs”
it has incurred. It is not necessary to
express a view on whether that right arises as soon as the work has
been done or whether
it arises only when the body corporate has paid
for the repairs. In either case the right to claim, and the
corelative debt owed
by the appellants arose less than 3 years before
the action was commenced.
11. The
respondent’s counsel has argued, with reference to
Barnett
and Others v Minister of Land Affairs and Others
2007 (6) SA 313
(SCA) at 321 – 322, that the plea of prescription is also
answered by the fact that the appellants’ failure to meet
its
obligation to repair the patio was a continuing wrong, with the
consequence that the claim made by the respondent could not
prescribe. I do not think that it is necessary to deal with that.
Whilst it is correct that the appellants’ failure to repair
the
patio was a continuing wrong, the continuing injury caused by that
wrong was suffered by the Lane family, and not the respondent.
The
respondent’s claim is the product of its decision to intervene,
upon which followed what Brand JA in
Barnett
called a “single,
completed wrongful act”, that is to say the appellants’
refusal to reimburse the respondent.
12. The
essence of the argument advanced by counsel for the appellants
against all of this is that the notice from
the respondent to the
appellants to effect the repairs could have been sent, on the
available information, in July 2012. It is
argued that the fact that
the respondent did not then “take steps to enforce its rights
and claim the alleged debt does not
mean that prescription did not
start running.” In support of this argument reference is made
to
Gunase v Aniruth
2012 (2) SA 398
and
Uitenhage
Municipality v Molloy
[1997] ZASCA 112
;
1998 (2) SA 735
(SCA). The argument must be
premised upon the proposition not only that the respondent had a duty
to act, but that prescription
started to run on a claim for ultimate
reimbursement from the date upon which that duty to act arose. For
reasons already given,
in my view none of those arguments has any
merit. In addition, the respondent did nothing to delay the running
of prescription,
which is the subject of the cases upon which the
appellants rely. The effect of the delay caused by the respondent
making sure
that this was a case in which its intervention under
management rule 70 was allowed, was to delay the creation of the
debt. The
question as to whether there would ever be a debt was only
answered when the appellants refused to comply with the 30 day notice
referred to earlier.
13. Furthermore,
the argument for the appellants actually supposes that the wrongful
conduct of the appellants
failing to repair their patio was a wrong
in itself committed against the respondent. If there was any merit in
that submission,
the answer would be that, just as the appellants’
failure to repair the patio was a continuing wrong against the Lane
family,
so to was it a continuing wrong in relation to the
respondent.
14. I
conclude that there is no merit in the appeal.
The
following order is made.
1.
The
appeal is dismissed with costs.
OLSEN
J
I
agree
BALTON
J
Date
of Hearing: FRIDAY,
04 DECEMBER 2020:
By agreement between the
parties this appeal was dealt with on the papers.
Date of
Judgment: THURSDAY,
21 JANUARY 2021
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and publication
on
SAFLII. The date and time for hand down is deemed to be on 21
st
January 2021.
For
Appellant: Mr
S Hoar
Instructed
by: De
Villiers
Evans & Petit
Appellants’
Attorneys
626
Musgrave Road
Durban
(Tel.:
031 – 207 1515)
(Ref.:
P Combrink/oj/01T010001)
(Email:
pcombrink@dep.co.za
)
c/o
Austin Smith Attorneys
Walmsley
House
191
Pietermaritz Street
Pietermaritzburg
(Ref.:
Mr Callum Smythe
For
Respondent: Mr
MC Tucker
Instructed
by: De
Wet Leitch Hands
Inc.
Respondent’s
Attorneys
Section
3, Salmon Bay House
Sandra
Road
Ballito
Durban
(Tel.:
032 – 946 0299)
(Email:
carol@dlh.co.za
)
c/o
Stowell & Co.
295
Pietermaritz Street
Pietermaritzburg
3200
(Tel.:
033 845 0500)
(Mr
A R Irons/llw/DEW17/0038)
(Email:
anthonyi@stowell.co.za
)