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[2021] ZAKZPHC 87
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McGregor v Selborne Park Body Corporate and Others (AR224/2020) [2021] ZAKZPHC 87 (8 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR224/2020
In
the matter between:
L
J
MCGREGOR APPELLANT
and
SELBORNE
PARK BODY CORPORATE FIRST
RESPONDENT
A
RIDL SECOND
RESPONDENT
M
O'CONNOR THIRD
RESPONDENT
H
KOEN FOURTH
RESPONDENT
J
JORDAAN FIFTH
RESPONDENT
R
TICKLE SIXTH
RESPONDENT
R
HAMILL SEVENTH
RESPONDENT
G
CRAIG EIGHTH
RESPONDENT
A
YOUNG NINTH
RESPONDENT
Coram:
VAN
ZYL, POYO DLWATI and MNGADI JJ
Heard:
4
June 2021
Delivered:
ORDER
On
appeal from:
KwaZulu-Natal Division of the High Court,
Pietermaritzburg (Ntshulana AJ sitting as a court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Poyo
Dlwati J (Van Zyl J concurring):
[1] This
appeal concerns the issue whether the
mandament van spolie
remedy
was available to the appellant in circumstances where his access, and
the use of an electronic booking system utilised for
renting his
residential units, was deactivated by the first respondent for
failing to pay his arrear levies.
[2] The
appellant is the owner of certain residential units situated within
the Selborne Park Golf Estate (the
estate) at Pennington on the
KwaZulu-Natal South Coast. The first respondent is the body corporate
of the estate, duly established
in terms of s 36 of the Sectional
Titles Act 95 of 1986 (the Act). The second to eighth respondents are
the duly appointed trustees
of the estate whilst the ninth respondent
is the estate manager. It was common cause that the appellant does
not reside within
the estate but leases his units to various tenants.
He does this through the estate's Glovent portal system (the system).
The estate,
as the administrator of the system, issues to homeowners
authorisation to issue access codes or pin numbers to either guests
or
contractors wanting access to the estate. All homeowners in the
estate, by virtue of their ownership, are registered as users of
the
system by the estate.
[3] The
appellant's contention was that he had peaceful and undisturbed
access to and use of his units in the estate
and the system since 13
December 2017 when the units were transferred to his name. This
access was exercised by him through an
access card issued to him by
the estate which he would simply swipe at the electronic reading
mechanism situated adjacent the main
entrance to the estate. He
averred that he was also denied peaceful and undisturbed access to
and use of the estate's visitor management
solution application, the
system utilised by the estate and homeowners as the facility through
which homeowners wishing to lease
their units to prospective tenants.
[4] According
to the appellant, the basis for the disturbance of his access and use
of the estate and the system
was as a result of a resolution passed
by the trustees of the estate during December 2018, to the effect
that unit owners who were
in arrears with their levies would only be
granted consent to let their units out from 1 March 2019 on condition
that they had
paid the outstanding arrear levies. Furthermore, those
unit owners who were in arrears would have their access cards
deactivated
and would be required to sign at the main gate in order
to gain access into the estate and would be required to use the
intercom
system to get to their units.
[5] It
was common cause between the parties that the estate had instituted
an action in the Durban High Court against
the appellant for
outstanding levies. The appellant is defending that action and that
case is still pending. It came as no surprise
then that the appellant
would be affected by the resolution. The parties exchanged various
correspondence with regard to the action
and the effect of the
resolution but there was no agreement reached between them. As a
result, the appellant, on an urgent basis,
launched an application on
20 May 2019, seeking orders that the estate restore his possession
and access to the estate and the
units by activating or reactivating
his access card to the estate and to the system. The orders sought
included a punitive costs
order,
de bonis propriis,
against
the second to eighth respondents.
[6] The
respondents opposed the application on various grounds. They also
launched a counter application seeking
an order that the appellant be
interdicted and restrained from hiring out his residential units in
the estate until such time that
he has obtained consent for doing so
from the trustees of the estate and that he has complied with the
resolution of December 2018.
The respondents denied that the
appellant's possession of and access to the estate and to the units
was interrupted. They further
disputed that the appellant had a right
to the system in order to hire out the units. It was contended that
the appellant's entitlement
to admit tenants to the estate and access
to the system was conditional upon his compliance with the terms of
the management as
well as conduct rules. Furthermore, that right was
conditional upon the consent of the trustees. Reference in particular
was made
to conduct rule 13(1) and (5) of the conduct rules which
deals with the letting of units. (I will deal with this rule later in
the judgment).
[7] Therefore,
so went the averment, the appellant could not seek to hire out his
units and derive income from
them whilst refusing to pay levies for
them. It was upon this basis that the trustees made the approval of
any proposed lease conditional
upon payment of levies. The
respondents argued that as the appellant had a contractual right with
the respondents, the
mandament
remedy was not available to him
under the circumstances. Furthermore, the appellant was made aware of
the December 2018 resolution,
which was only going to be implemented
from 1 March 2019, but did nothing until May 2019 when he launched
the application on an
urgent basis. The respondents' contention
therefore was that the appellant was given ample opportunity to
rectify the arrear levies
before the resolution was implemented. They
therefore sought that the appellant's application be dismissed with
costs.
[8] The
court
a quo,
per Ntshulana AJ, found in favour of the
respondents. It found that as the owner of the units in the estate,
the appellant, was
contractually bound by both the rules of conduct
and management rules of the estate. It found that the relief sought
by the appellant
would be in conflict with conduct rule 13 and the
resolution adopted by the trustees of the estate. This, so the court
held, would
be an illegality in terms of the scheme/contract. It
further found that the trustees' application of the rules did not
amount to
self-help. As the rights in dispute were contractual in
nature and as specific performance of contractual obligations were
being
claimed, the
mandament van spolie
was not applicable. It
granted the counter application as sought by the respondents. This
appeal is with the leave of the court
a quo.
[9]
Mostly
notably, at the time that the application was heard by the court
a
quo,
the
appellant's access to the estate through his access card was
restored.
[1]
The issue in the
appeal therefore was whether the remedy of
mandament
van spolie
was
available to the appellant for access to the system. Did conduct rule
13 vest the respondents with the power to deactivate access
to the
system?
[10] The
starting point must be the conduct rules and the trustees' resolution
of 21 December 2018. Conduct rule
13 of the estate reads:
'(1) The
owner of a residential section may, with the Trustees approval let to
a person who is not a member of the Body
corporate (a 'Third Party')
or allow a Third Party to occupy the Owner's section provided that
the Owner secure from the Third
Party to whom occupation is given an
undertaking in favour of the Body Corporate, substantially in the
form of Annexure 'A' to
the Conduct Rules, that such person will
faithfully comply with and fulfil all of the terms and conditions of
these Conduct Rules
and of the Rules in force from time to time
relating to the use and occupation of the unit and of the common
property.....
(2) .....
(5) When
granting the approval referred to in Conduct Rule 13(1), the Trustees
may prescribe any reasonable condition
to the grant of such approval
and the Trustees may withdraw such approval in the event of any
breach of any condition prescribed
in terms of this Conduct Rule.'
[11] The
resolution of 21 December 2018 signed by seven trustees of the estate
reads:
'1.
Based on legal advice obtained by the attorneys of the Body
Corporate, Cox Yeats, notice be given in writing
to Lawrence McGregor
withdrawing any consent to his letting units M1 – M8 with
effect from 1 March 2019 and that such withdrawal
of consent shall
remain until such time as all arrear levies owing by Lawrence
McGregor to the Body Corporate have been paid.
2.
All homeowners be subject to a withdrawal of the consent of the body
Corporate to the letting of their
units if the homeowner concerned is
in default with the payment of levies'.
The
appellant's contention that he was despoiled must be determined in
this context.
[12]
It
is trite that the relationship between the appellant and the
respondents has its foundation in contract and is therefore
contractual
in nature.
[2]
The
issue that needs consideration in this appeal as I understand the
appellant's case is not about the estate's conduct rules
but about
the legality of the trustee's resolution that his access and use of
the system was deactivated as a result of his failure
to pay
outstanding levies. Spoliation was defined by Innes CJ in
Nino
Bonino v De Lange
[3]
as 'any illicit depravation of another of the right of possession
which he has, whether in regard to movable or immovable property
or
even in regard to a legal right'. Leach JA in
Eskom
Holdings SOC Limited v Masinda
[4]
said the following in regard to the spoliation remedy:
'The mandament van spolie
(spoliation) is a remedy of ancient origin, based upon the
fundamental principle that persons should not
be permitted to take
the law into their own hands to seize property in the possession of
others without their consent. Spoliation
provides a remedy in such a
situation by requiring the status quo preceding the dispossession to
be restored by returning the property
'as a preliminary to any
enquiry or investigation into the merits of the dispute' as to which
of the parties is entitled to possession.'
(Footnote omitted.)
[13]
In
Eskom
Holdings
,
[5]
it was further held that
'In order to justify a
spoliation order the right must be of such a nature that it vests in
the person in possession of the property
as an incident of their
possession ... On the other hand, rights that flow from a contractual
nexus between the parties are insufficient
as they are purely
personal, and a spoliation order, in effect, would amount to an order
of specific performance in proceedings
in which a respondent is
precluded from disproving the merits of the applicant's claim for
possession.'
[14] Returning
to the facts of this case, the appellant enjoys the right to access
the portal system by virtue
of being an owner of some units in the
estate. There was no dispute that the portal system is used by owners
to let their units
to prospective tenants. In terms of rule 13, the
appellant had to obtain approval from the first respondent prior to
letting out
his units to prospective tenants. The appellant and even
the respondents for that matter do not possess the system at any
given
time as same is controlled by a service provider. They
therefore do not have any physical control over the portal system. It
must
follow therefore that the appellant, under the circumstances,
could not have been despoiled of anything as the access to the portal
system was not an incident of possession but of ownership.
[15] Even
if one were to accept that the appellant was despoiled of access to
the portal system it cannot, in my
view, be said that it was
wrongful. The trustees of the first respondent took a resolution in
November 2018 and notified all the
owners during December 2018 as to
what was going to happen to those owners whose accounts fell into
arrears. The appellant did
nothing for almost five months to
challenge the resolution and its effect. Under the circumstances, it
cannot be said that the
deprivation was wrongful and unlawful as the
appellant was given ample notice as to what would happen when levies
were in arrears.
In my view, the remedy of spoliation was again not
available to the appellant for the use of the portal system.
[16]
As
was held in
Telkom
SA Ltd v Xsinet (Pty) Ltd
,
[6]
the remedy of
mandament
van spolie
is
not available where personal rights are concerned and 'the order
sought is merely to compel specific performance of a contractual
right in order to resolve a contractual dispute'. As correctly held
by the court
a
quo,
the
appellant's rights are contractual in nature as they flow from him
being a member of the body corporate. He requires the approval
of the
trustees of the first respondent to hire out his units. There is no
evidence before us that he has sought the trustees'
approval for
hiring his units and that this was unreasonably refused. He therefore
cannot seek an order of this court to compel
the trustees to approve
the letting of his units where he has not even sought such approval.
[17]
In
Mount
Edgecombe Country Club Estate Management Association II RF NPC v
Singh and others
[7]
Ponnan JA held that
'When the respondents
chose to purchase property within the estate and become members of
the Association, they agreed to be bound
by its rules. The
relationship between the Association and the respondents is thus
contractual in nature. The conduct rules, and
the restrictions
imposed by them, are private ones, entered into voluntarily when an
owner elects to buy property within the estate.'
[18] I,
therefore, agree with the court
a quo's
finding that the
appellant's rights to access and use of the portal system are
contractual in nature and do not avail him the remedy
of spoliation.
In line with the approval required to let out the units in terms of
conduct rule 13, it seems to me that access
to the portal system goes
hand in hand with the approval to let out units. In other words,
whilst the appellant could have access
to the portal system, he would
still require the trustees' approval to let out the units. Therefore,
the appellant's application
was one of seeking to compel the trustees
to grant him approval to let out his units disguised as a
mandament
van spolie
application.
[19]
As
alluded to earlier, the appellant has not challenged the
reasonableness of the resolution or its legality. Even if he did, he
could not do so through a spoliation application. Reference was made,
on behalf of the appellant, to
Fisher
v Body Corporate Misty Bay
.
[8]
However, that matter in my view is distinguishable on the facts from
this matter. It was not in dispute when the matter was argued
in the
court
a
quo
and
before us that the appellant's access to all his units had been
restored through the electronic access card. The only remaining
live
issue was his right to have access to the portal system. And for him
to let out his units, he must obtain approval from the
trustees of
the first respondent. That rule stands and the appellant agreed to be
bound by it when he bought his properties in
the estate.
[20]
As
the appellant required approval from the trustees prior to him
letting out his units, this shows that the appellant was never
in
physical control of the portal system. His right to let the units has
always been subject to him obtaining approval from the
trustees. That
is a contractual right between him and the trustees. Further
reference was made to
Singh
and another v Mount Edgecombe Country Club Estate Management
Association (RF) NPC and others
.
[9]
In my view, this matter is again distinguishable from
Singh
as
there the challenge lay at the fairness and constitutionality of the
conduct rules for residents. Accordingly, the appeal must
fail.
[21] In
the result, the following order shall issue:
'The appeal is dismissed
with costs'.
POYO
DLWATI J
I
agree
VAN
ZYL J
Mngadi
J (dissenting):
[22] I
have perused the judgment penned by my Sister Poyo-Dlwati J.
Unfortunately, I have a slightly different
approach, which leads me
to a different result.
[23] The
appellant, with leave of the court
a quo
(Ntshulana AJ),
appeals against the whole judgment delivered on 28 February 2000.
Ntshulana AJ dismissed with costs the appellant's
application for an
order restoring his possession and access to the body corporate and
to his units in the body corporate, and
for an order restoring his
access to and use of a Glovent portal system in the estate and
ordering the appellant to pay costs of
a dismissed
counter-application.
[24] The
appellant in the notice of appeal as common cause facts sets out the
following:
'1.
The appellant is the owner of certain units within the Selborne Park
Golf Estate which unit be rents
out to tenants from time to time.
2. The
first respondent is the body corporate of the Estate, and the second
to eight respondents
were the trustees at the time of the events in
question.
3. Prior
to March 2019, the appellant enjoyed peaceful and undisturbed access
to and use of his
units and the estate generally by means of the
electronic access and system in the operation on the estate.
4. The
appellant also had peaceful and undisturbed access to the use of the
first respondents
computerised visitor management solution by means
of which he would give access to the tenants staying at his units
5. There
is an ongoing dispute between the appellant and the first respondent
relating to levies
and other charges arising from his ownership of
the units in the estate, the dispute is the subject of a pending
litigation.
6. On
1 March 2019, the first respondent terminated the appellant's ability
to rent out his unit
in the estate by deactivating his access to the
body corporate's previously mentioned computer system until all
amounts claimed
for the levies and related charges had been paid.
7. The
first respondent simultaneously deactivated the appellant's card that
enabled the appellant
to gain access to the estate
via
the
electronic access system, which resulted in the appellant in order to
gain access to the estate having to sign in at the main
gate and make
use of the intercom system.'
[25] By
the date of the hearing of the application, the appellant's access to
the estate and to his units had been
restored but the respondents
resisted restoring his access to and use of the Glovent portal
system.
[26] Ntshulana
AJ found that the appellant was seeking final relief. The remedy of
mandament van spolie
on which the appellant was relying is a
possessory interdict. It is confined to restoring possession of
movable or immovable property.
Its purpose is to protect undisturbed
possession terminated wrongfully and against the will of the
possessor. The learned judge
found that the appellant had failed to
prove the requirements of the interdict. He found that the relief
sought in the counter
application was rendered academic by the
dismissal of the main application. He dismissed the counter
application and ordered the
appellant to also pay the costs of the
counter application.
[27] Ntshulana
AJ found that the appellant was seeking access to the computer system
in order to let his units
to tenants. There was no interference with
possession of his units. Further, the remedy of
mandament van
spolie
was not available to the appellant. He found that the
issue of access to the computer system is regulated by the
contractual relationship
between the appellant and the first
respondent. For the court to direct or order the first respondent to
restore access to third
parties, like tenants would compel the
trustees of the first respondent to commit an illegality in terms of
the scheme/contract.
[28] The
appellant on 20 May 2019 filed an urgent application in the form of
rule nisi
with part of the relief relating to his access of
the estate and his units to operate as interim relief. On 23 May
2019, the respondent
reinstated the appellant's access to the estate
and to his units. Therefore, the need for the interim relief fell
away.
[29] On
21 May 2019, the respondents filed an intention to oppose the
application. A preliminary answering affidavit
was filed on 24 May
2019. On the 24 May 2019, the appellant filed the replying affidavit
to the preliminary answering affidavit.
On 5 July 2019, the
respondent filed a supplementary answering affidavit, which also
served as a founding affidavit to the counter
application. On the 22
July 2019, the appellant filed a replying affidavit to the
supplementary answering affidavit, which also
served as an answering
affidavit to the counter application. On 8 May 2019, the respondents
filed the replying affidavits to the
counter application. The parties
made averments traversing all the issues without making a distinction
between the main application
and the counter application. It is not
surprising that the learned judge found that the dismissal of the
main application rendered
relief sought in the counter application
academic.
[30] The
above shows that when the matter was heard, the urgency part of it
had fallen away, as well as to a certain
extent the restoring of the
despoiled access before the merits are traversed. The appellant
sought final relief. The parties in
their papers had traversed the
merits. The respondents in filing the counter application indicated
that the relief sought by the
appellant be regarded as final relief.
The court
a quo
was then required to determine whether, on the
facts averred in the appellant's affidavits, which have been admitted
by the respondents
together with the facts alleged by the
respondents, justify the relief the appellant was seeking. Likewise,
the relief sought in
the counter application. The respondents, in
their heads of argument, sought dismissal of the main application and
the granting
of the relief in the counter application. Therefore, it
was common cause that both parties sought final relief.
[31] The
appellant as owner of the units in the estate was seeking continued
access to the estate's Glovent portal
system like all the other
owners. The Glovent portal system is for use by owners of the units
to facilitate access by both existing
and prospective tenants and
others to the units in the body corporate. The respondents contend as
follows: The appellant does not
have a
prima facie
right to
the relief he seeks in respect of the Glovent portal system as any
rights to hire out residential units at the estate is
conditional
upon the consent of the trustees. The appellant has not sought to
lease his units and he has not presented any draft
lease agreements
to the trustees for approval. The appellant, when purchasing the
units in the scheme, agreed to limit his rights
to let out his units
by making any lease conditional on the approval of the trustees and
the compliance with any conditions reasonably
imposed.
[32] The
respondents state that the appellant is in default with his levy
obligations in the sum well in excess
of R1 million; that the
appellant is both contractually and statutorily bound to comply with
the first respondent's management
rules and conduct rules. By
December 2018, the appellant was aware that he would not be permitted
to hire out units no 1 to no
8 with effect from 1 March 2019. The
respondents refer to a letter written by the Estate Manager, dated 19
December 2018, and addressed
to the letting agents. It reads:
'As a courtesy, the BC
(body corporate) wants you to know that it has withdrawn its consent
to the letting of Mr McGregor's units
in Ml-M8 with effect from 1
March 2019 and no persons will be allowed to occupy the units beyond
that date. This action on the
part of the BC is based on legal advice
obtained by the BC from its attorney's, ... and all home owners
including Mr McGregor will
be subject in future to the clear and
specific rule that unit may not be let if the particular owner
concerned is in arrears with
the payment of levies'.
The
respondents attorney in a letter dated 12 February 2019 stated that
the appellant
'was obliged to seek the
body corporate's consent to the letting of any of his units and the
body corporate has a right to prescribe
reasonable conditions to the
grant of such approval. This obligation and the concomitant right is
encapsulated in Conduct Rule
13. The steps taken by the body
corporate are in accordance with the rules and are lawful.....Conduct
Rule require compliance with
the terms and conditions of Rule 13
before any unit may be occupied by or let to any person who is not a
member of the Body Corporate….
Mr Mcgregor has no right to
continue to let his properties out from 1 March 2019. No further
letting of his units will be sanctioned
beyond 1 March 2019 whilst
his levy accounts are in arrears. ….members with levy arrears
will still be able to gain access
by signing in at the gate but will
not be able to issue access cards or obtain pin codes on the Glovent
App in order for new tenants
to gain access from 1 March 2019'.
[33] The
respondents state that the decision is encapsulated in the Resolution
of Trustees of December 2018, which
is in terms of conduct rule 13.
The resolution reads as follows:
1. Based
on legal advice obtained by the attorneys of the Body Corporate, Cox
Yeats, notice be
given in writing to Lawrence McGregor withdrawing
any consent to his letting units M1 – M8 with effect from 1
March 2019
and that such withdrawal of consent shall remain until
such time as all arrear levies owing by Lawrence McGregor to the Body
Corporate
have been paid.
2. All
homeowners be subject to a withdrawal of the consent of the body
Corporate to the letting
of their units if the homeowner concerned is
in default with the payment of levies'.'
[34] It
may be convenient to quote the relevant part of conduct rule 13 at
this stage:
'Letting and Occupancy of
Units and Related Matters
(1) The
owner of the residential section may with the trustees approval, let
to a person who is not a member of a Body
corporate ( a Third Party)
or allow a Third party to occupy the owner's section provided that
the owner secure from the third party
to whom occupation is given an
undertaking in favour of the body corporate, substantially in the
form annexure A to the Conduct
rules that such person will faithfully
comply with and fulfil all those conduct Rules in force from time to
time relating to the
use and occupation of the unit and of the common
property. The undertaking shall confer upon the Body Corporate the
right to evict
the Third Party as to refuse such person entry to the
estate should such a person breach the obligations contained herein
and shall
otherwise be in terms of as the Trustees from time to time
require. The undertaking shall be lodged in writing with the Body
Corporate
prior to such Third Party being given occupation of the
Unit.
(2) ...
(5) when
granting the approval referred to in Conduct Rule 13 (1) the Trustees
may prescribe any reasonable condition
to the grant of such approval
and the Trustees may withdraw such approval in the event of any
breach of any condition prescribed
in terms of this Conduct Rule.'
[35] The
promulgated Selborne Park Body Corporate Conduct Rules provides that
'rules' means the conduct rules,
the management rules and additional
management rules. Rule 2(1) provides that the rules are applicable to
and binding upon the
trustees and upon all owners, lessees and other
occupiers of the units. Conduct rule 19 provides that a contravention
of a conduct
rule may result in a penalty being imposed. The penalty
imposed is recoverable as levy. In suitable circumstances, the
trustees
may apply to a court for an appropriate court order. Conduct
rule 20 provides that no indulgence or relaxation in respect of the
conduct rules shall constitute a waiver or consent, or prevent the
enforcement by the trustees at any time.
[36] The
Estate Manager in a notice to the homeowners stated:
'In terms of a recent
resolutions of the Trustees, owners who are in arrears with their
levies will only be granted consent to let
out their villas from 1
March 2019, on condition that the levy arrears be brought up to date.
Those homeowners who let out their
villas and who are currently in
arrears have already been given due notice. This is in line with
Conduct Rule 13, which requires
members to obtain Trustees approval
for letting of properties and entitles the Trustees to impose
reasonable condition when granting
their consent…..In addition
whist they remain in arrears their access to the Glovent Portal will
be deactivated to prevent
access codes being issued to tenants. These
privileges will be reinstated once levy arrears are settled. Those
homeowners who either
personally or through letting agency breach the
rules or are found to be letting their villas in contravention of the
Rules may
be penalised for their transgression and in terms of the
prescribed tariff of penalties attached to the Conduct Rule. A
penalty
of up to R1000.00 may be imposed for the first transgression
of Rule 13 going up to R5000.00 for second and R10 000.00 for the
third and further transgressions.'
[37] The
following provisions of the Sectional Titles Schemes Management Act 8
of 2011 (the Act) are of relevance.
Section 2(5) provides that the
body corporate is, subject to the provisions of this Act, responsible
for the enforcement of the
rules for the control, administration and
management of the common property for the benefit of all owners.
Section 10 provides
that a scheme must, as from the date of
establishment of the body corporate, be regulated and managed,
subject to the provisions
of the Act, by means of rules. The rules
must provide for the regulation, management, administration, use and
enjoyment of the
units and common property. The management or conduct
rules must be reasonable and apply equally to all owners of units.
The rules
bind the body corporate and the owners of the sections and
any person occupying a unit. Section 1 defines common property in
relation
to a scheme to mean the land included in the scheme and such
parts of the building or buildings that are not included in the unit.
Owner of a unit owns proportionately undivided shares in the common
property determined in accordance with the quota of the unit
of which
he is the owner.
[38] The
appellant admittedly owns ten (10) units in the scheme. He acquired
the units when they were transferred
to him on 13 December 2017. He
also holds a real right to extend or develop a piece of common
property described on the Sectional
Plan as RR45. From 2017 in
becoming a unit owner the appellant was granted access to the estate
by means of an access card issued
to him which he would swipe at the
electronic reading mechanism situated adjacent to the main entrance
whereupon the mechanised
boom controlling access would be raised and
he would be able to enter and leave the estate. Further, he enjoyed
use of a Glovent
portal system, which is a computerised visitor
management solution application. It is utilised by the unit owners as
a facility
through which unit owners wishing to lease their units are
able to grant access to both prospective tenants and existing
tenants,
and to persons visiting their units by issuing them with
access codes or pin numbers. In March 2019, the respondents
terminated
the appellant's access to the estate and to the Glovent
portal system. The respondents have not justified the termination of
the
appellant's access to the estate, which they later reinstated.
[39]
The
right of ownership of an owner in a sectional title scheme is limited
and regulated by the scheme and its rules. The body corporate
has no
general power to limit the rights of owners of units except in terms
of the rules. The Glovent portal system was installed
in the scheme
for use by unit owners to exercise their rights as owners of units in
the scheme. It was paid for and its use remains
paid for by the unit
owners of the scheme. The right to use it belongs to the unit owners.
The appellant as owner of units in the
scheme has a right to access
and use the Glovent portal system. The appellant's interest in and
the right to use the system is
an incident of his ownership of the
units in the scheme. The denial of access to and the use to the
appellant of the system is
a diminution of his right of ownership to
the units he owns. The denial is technically despoliation.
[10]
However, the denial of access to the system, if it was in terms of
the rules, would not be an actionable despoliation, the body
corporate would not be taking the law into its hands. In this regard
I differ from the
Fisher
judgment.
[11]
I agree with
Fisher
[12]
that access, which is an incident of ownership, should be protected
under the principles of
mandament
van spolie.
[40]
A
person buying property in a sectional title scheme accepts that the
scheme is managed and controlled by a body corporate in terms
of the
rules. However, I do not agree with the view that he or she forms a
contract with a body corporate. The scheme is statutorily
created.
The relationship with a body corporate is a statutorily created
relationship. In this regard I differ from
Singh
and another v Mount Edgecombe Country Club Estate Management
Association (RF) NPC and others,
[13]
as well as
Abraham
v Mount Edgecombe Country Club Estate Management Association.
[14]
Therefore, in my view, an owner challenging a rule is not in the same
position as a person resisting compliance with a contract.
It
suffices in his/her case to show that the rule is not in terms of the
power of the body corporate. It is not required to show
that the rule
is unenforceable in that it is against public policy.
[41] The
Glovent portal system is for use by all unit owners. There is no
indication that when a decision to install
it was taken, it was
restricted for use by the unit owners not in arrears with the levies.
If it is used, its use must be in terms
of rules. In other words, a
decision not to grant access or to withdraw access to the Glovent
portal system must be authorised
by a specific rule. Conduct rule 13
relates to letting of units. Access to the Glovent portal system and
letting of units are two
distinct acts. The provisions of conduct
rule 13 regulate the letting of units whereas there is no rule
regulating access to the
Glovent portal system. If approval to let a
unit is refused in terms of conduct rule 13, the owner may continue
to have access
to the Glovent portal system although he or she cannot
use it to let the unit in question.
[42] Conduct
Rule rule 13 refers to letting a unit with approval '... provided the
owner receives from the third
party... ' and that when granting
approval, the trustees may prescribe reasonable conditions to the
grant of the approval and on
breach thereof the approval may be
withdrawn. It refers to approval and imposing of conditions at the
time the unit is let. It
does not authorise blanket withdrawal of
approval before there is a request to let a unit. It also does not
authorise blanket withdrawal
of given approval. Conduct rule 13
cannot be used to deny approval for a reason not related to the
particular unit being let or
to the third party renting the unit. In
terms of conduct rule 13, withdrawal of approval can only be done on
breach of the conditions
imposed when the approval was granted.
[43]
The
respondents are not entitled to rely on conduct rule 13, to deny the
appellant access to the Glovent portal system as an anticipatory
measure that he would let his units contrary to the provisions of
conduct rule 13. In the case of the breach of conduct rule 13,
the
respondents have remedies available in breach of conduct rules and
they may approach a court for an appropriate order. The
respondents
are bound by the rules of the body corporate and they must find their
authority in terms of the rules. They have no
power outside the
rules. In the case of a decision purportedly taken in terms of the
rules, the decision is reviewable under common
law.
[15]
The grounds of review include,
inter
alia,
failure
to apply your mind to the relevant issues in accordance with the
'behests of the statute and the tenets of natural justice';
unwarranted adherence to a set principle as a hard and fast rule
resulting in prejudging the matter and failure to consider the
merits
of the particular circumstances of the case. The respondents'
enforcing of conduct rule 13 by denying access to the Glovent
portal
system is tantamount to a failure to exercise a discretion whether to
grant an approval to let a unit or not. It results
in them prejudging
the issue even before it is brought to them for consideration. It
results in a failure to exercise a discretion
given to them for the
benefit of unit owners in conduct rule 13.
[44] The
respondents in the counter application are seeking an order or
declaratory order that the appellant is
bound by the provisions of
conduct rule 13 in letting his units. The appellant did not let any
unit in breach of conduct rule 13.
It is irrelevant that he has made
the averments that the first respondent is not entitled to have a say
as to whom he lets his
units. He bought units in the scheme and he is
bound by the rules of the scheme. The respondents are entitled to
enforce the provisions
of conduct rule 13 by proper and lawful means.
If the appellant has grounds to oppose the enforcement, he will be
entitled to raise
those grounds. The respondents cannot apply for a
declaratory order as an anticipatory move to stop the appellant from
opposing
the enforcement measures they take against him.
[45] The
respondents sought a declaratory to counter the appellant's
resistance to the manner they enforced conduct
rule 13. The appellant
is entitled to resist the enforcing of conduct rule 13 in a
misconstrued form. There is no live controversy
that conduct rule 13
properly construed binds the appellant as an owner of units in the
scheme. It is irrelevant that it was previously
not enforced. In the
result, in my view, there is no jurisdictional basis to grant a
declaratory order sought by the respondents.
[46]
Although
it may be competent for a court to make a declaratory order in any
particular case, the grant thereof is dependent upon
the judicial
exercise by that court of its discretion with due regard to the
circumstances of the matter before it. The fact that
the respondents
sought a declaratory to enforce misconstrued conduct rule 13 would
cause the court to exercise its discretion against
making the
declaratory.
[16]
In my view,
the court
a
quo
correctly
dismissed the counter application albeit for the wrong reasons. The
correct reasons justified that it be dismissed with
costs.
[47] The
appellant in the court
a quo
sought costs on attorney and
client scale and as against the second to the ninth respondents to
pay the costs
de bonis propriis.
The second to the ninth
respondents are trustees of the first respondent. As trustees, they
are required to act judiciously and
in the best interest of the
members of the body corporate. They in their quest to enforce payment
of arrear levies relied on legal
advice. It must not have been
apparent to them that the legal advice was wrong. In my view, this is
not a matter wherein payment
of costs
de bonis propriis
should
be ordered. To do so, may cause a chilling effect and scare persons
away from availing themselves to act as trustees.
[48] Costs
on attorney and client scale are ordered in exceptional circumstances
because of special considerations
from the circumstances giving rise
either to the action or from the conduct of the losing party. The
respondents relying on legal
advice misconstrued conduct rule 13. The
respondents are entrusted with the application of the rules of the
scheme. Members of
the body corporate look up to the trustees for the
control of the affairs and management of the body corporate strictly
in accordance
with the rules. If there is a situation not falling
under a particular rule, the trustees must initiate a process to
create the
desired rule. The respondents in the manner they conducted
the litigation there is no basis to order costs against them on a
punitive
scale. The fact that they relied on legal advice excuses
them from blame for pursuing an issue, which clearly had no merit.
[49] In
the result, I would make the following order:
1. The
appeal is upheld with costs, including costs of two counsel where so
employed.
2. Costs
to be paid by the first respondent. No costs or charges to be
apportioned to the account
of the appellant as a member of the first
respondent.
3. The
order of the court
a quo
is set aside and it is replaced with
the following:
'1. The
application is granted with costs, including costs of two counsel
where so employed.
2.
Order
is made in terms of paragraphs 1.1.1, 1.1.2 and paragraph 1.1.3 of
the Notice of motion except that costs are awarded on party
and party
scale and not
de bonis propriis.
3. The
counter application is dismissed with costs, including costs of two
counsel where so employed.
4. Costs
to be paid by the first respondent except that no charges/costs to be
apportioned to
the account of the applicant as a member of the first
respondent.'
MNGADI
J
APPEARANCES
Date
of Hearing: 4
June 2021
Date
of Judgment: 08
October 2021
Counsel
for Appellant: Mr Ender
Instructed
by: Talbot
Attorneys
Counsel
Respondent: Ms Annandale SC with
Mr Shapiro
Instructed
by: Cox
Yeates
c/o
Austen Smith Attorneys
[1]
See: page 349 of the record, para13 of the judgment.
[2]
See:
Singh
and another v Mt Edgecombe Country Club Estate Management
Association (RF) NPC and others
2016
(5) SA 134
(KZD) para 10 and
Abraham
v
Mount
Edgecombe Country Club Estate Management Association
[2014]
ZAKZDHC 36.
[3]
Nino
Bonino v De Lange
1906
TS 120
at 122.
[4]
Eskom
Holdings Soc Limited v Masinda
[2019]
ZASCA 98
;
2019 (5) SA 386
(SCA) para 8.
[5]
Ibid para 22.
[6]
Telkom
SA Ltd
v
Xsinet
(Pty) Ltd
2003
(5) SA 309
(SCA) para 14.
[7]
Mount
Edgecombe Country Club Estate Management Association II RF NPC v
Singh and others
[2019]
ZASCA 30
;
2019 (4) SA 471
(SCA) para 19.
[8]
Fisher
v Body Corporate Misty Bay
2012
(4) SA 215 (GNP).
[9]
Singh
and another v Mount Edgecombe Country Club Estate Management
Association (RF) NPC and others
2016
(5) SA 134 (KZD).
[10]
See
Fisher
v Body Corporate Misty Bay
2012
(4) SA 215
(GNP) paras 10-14.
[11]
Ibid para 9.
[12]
Ibid para 24
[13]
Singh
and Another v Mount Edgecombe Country Club Estale Management
Association (RF) NPC and Others
2016
(5) SA 134
(KZD) para 10-11.
[14]
Abraham
v
Mount
Edgecombe Country Club Estate Management Association
[2014]
ZAKZDHC 36 para 23.
[15]
See
Body
corporate of the Laguna Ridge Scheme No 152/1987 v Dorse
1999
(2) SA 512
(D) at 522F-G.
[16]
See
Reinecke
v Incorporated General Insurance Ltd
1974
(2) SA 84
(A) at 95C.