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[2019] ZAWCHC 58
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Coral Island Body Corporate v Hoge (22991/2017) [2019] ZAWCHC 58; 2019 (5) SA 158 (WCC) (23 May 2019)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 22991/2017
Before: The Hon. Mr Justice Binns-Ward
Hearing: 23 May 2019
Judgment:
23 May 2019
In
the matter between:
CORAL
ISLAND BODY
CORPORATE
Applicant
and
BELINDA
IRIS
HOGE
Respondent
JUDGMENT
BINNS-WARD J:
[1]
In this matter, the applicant, which is the
body corporate of a residential property sectional title scheme,
sought certain declaratory
and interdictory relief against one of its
members. The matters in issue arose out of certain minor
alterations effected
by the respondent to her section. The
alterations were in material part directed at making provision for
any overflow from
the geyser installed in the garage that was
attached to, and formed part of, the respondent’s unit. They
involved the
installation of certain piping outside the section for
that purpose. The trustees of the body corporate took issue
with the
respondent because (i) she had failed to obtain their
written permission to undertake the alterations, as she was required
by the applicable rules to have done, (ii) the piping, some of
which is visible in the underground parking garage of the complex,
was made of white plastic material, whereas the trustees favoured
copper piping of the sort used in the other visible piping in
the
garage area and (iii) the overflow pipe that had been installed
was liable to disgorge into the garage area, rather than
into an
exterior drain in the common area, as the trustees would be willing
to allow. They were also concerned that the respondent
had
previously adapted the garage that formed part of her section for use
for different purposes and, in her endeavours to sell
or rent out the
unit, had advertised could be adapted for other uses. This, so
the trustees contended, was in contravention
of s 13(1)(g) of
the Sectional Titles Schemes Management Act 8 of 2011, which came
into operation on 7 October 2016.
[1]
[2]
A full complement of affidavits was
exchanged between the parties in the motion proceedings. The
respondent, in opposing the
relief sought, disputed that the
institution of the proceedings had been validly authorised, and also
averred amongst other things
that the alterations had been effected
several years previously with the orally given permission of the then
chairperson of the
board of trustees. She furthermore denied
that she was using her garage in contravention of s 13(1)(g) of
the Sectional
Titles Schemes Management Act.
[3]
However, about two weeks before the
hearing, the respondent delivered an open and unconditional offer of
settlement in which she
essentially conceded the relief sought in the
application, save for costs. She explained her concession,
pointing out that
she had determined that the cost of complying with
the trustees’ requirements would be less than R10 000, and
that she
was unable, in the context of the value of what was in issue
in the case, to afford the cost of litigating the dispute in the High
Court. The respondent nevertheless maintained that she should
not be mulcted in costs because the trustees should not have
proceeded against her in this court, but should instead have sought
the adjudication of the dispute under the auspices of the Community
Schemes Ombud Service Act 9 of 2011 (‘the Ombud Act’).
[4]
The Ombud Act came into operation on the
same date as the aforementioned Sectional Titles Schemes Management
Act. It was part
of the substantial legislative overhaul of the
regulatory regime previously laid down exclusively in the
Sectional
Titles Act 95 of 1986
. Indeed, the respondent had in her
answering affidavit already pressed the inappropriateness of the
trustees’ resort
to litigating the dispute in the High Court.
The chairperson of the board of trustees did not engage meaningfully
with this
contention in reply. He simply responded that the
applicant had been at liberty to proceed either under the Ombud Act
or
through the courts.
[5]
It emerged in the papers that the
applicant’s trustees are subject to a limitation on their
powers of discretionary expenditure
in the amount of R25 000,
and that they had not obtained authority from the members of the body
corporate to incur expenditure
in excess of that amount for the
purpose of the current litigation. I think that I am able to
take judicial notice that the
attorney and own client costs of any
applicant in opposed litigation in the High Court, even in a
relatively straightforward matter
not involving voluminous papers nor
meriting the engagement of counsel of more than junior or
middle-ranking stuff gown status,
would easily exceed R25 000.
And such estimate leaves out of account altogether the
contingency of the postulated applicant
having to pay the other
side’s costs on a party and party basis should there be an
adverse judgment. Whether the factual
circumstances just
described could impel a finding that the institution by the trustees
of the current proceedings was not properly
authorised because they
did not have the authority to expose the body corporate to the
incurrence of the costs involved or attendant
financial risk is an
arguable question. I do not have to decide it, however, because
the respondent’s open concession
of the substantive relief
sought in the application is inconsistent with any persistence in her
challenge to the trustees’
authority.
[6]
As I intend to make an order in the
applicant’s favour in accordance with the substantive
components of the respondent’s
open offer, which the
applicant’s counsel indicated would be acceptable, the only
matter in real contention that I have to
determine is liability for
costs.
[7]
The chairperson is technically correct in
his assertion that the institution of the application in the High
Court rather than under
the auspices of the Ombud Act was legally
competent. But whether the trustees’ decision to proceed
in this forum was
well-advised, and whether such decisions should be
discouraged by the courts in cases in which body corporates should
more appropriately
have proceeded in the less expensive fora that
have been specially devised for the purpose by the legislature are
quite different
questions. And they bear pertinently when the
incidence of the costs of court-related litigation in such matters
falls to
be determined.
[8]
The disputes that lay at the heart of the
current litigation, namely the appearance and utility of plumbing
appurtenances and the
permitted usage of designated areas, are of the
sort that commonly arise in the context of the shared ownership and
close neighbour
interaction that are inherently part and parcel of
membership of the body corporate of any sectional title scheme.
They are
essentially of a domestic character and involve issues that
fall to be determined with reference not only to statutory law and
rules and regulations, but also the common law principles of private
nuisance or neighbour law; in the context of which, as one
judge
sagely observed, ‘[t]he homely phrases “give and take”
and “live and let live” are much nearer
the truth than
the Latin maxim
sic utere tuo ut alienum
non laedas
’.
[2]
[9]
It was no doubt because of their common
occurrence, the desirability that they be determined as informally
and cheaply as possible,
and the fact that the cost of litigating
such disputes in the courts is beyond the reach of the vast majority
of individual owners
of sectional title units that the Ombud Act was
enacted as part of the tranche of sectional title-related reform
measures adopted
by the legislature nearly a decade ago. The
Ombud Act provided for the establishment of a service to provide for
a dispute
resolution mechanism in community schemes.
[3]
All community schemes are required to raise a levy on their members
to contribute to the funding requirements of the Ombud
Service.
[4]
The Act’s provisions allow for the adjudication of disputes
such as those that presented in the current litigation
[5]
by a suitably qualified adjudicator who will deal with the matter on
an inquisitorial basis
[6]
and, save in especially indicated circumstances, without the
involvement of legal representation on behalf of any of the
parties.
[7]
The Ombud Act also provides for the adjudicator to refer disputes for
conciliation in suitable cases.
[8]
Conciliation is undertaken by appropriately trained and qualified
conciliators employed by the Community Schemes Ombud Service.
[9]
The adjudicators’ determinations are amenable to being made
orders of court by means of an inexpensive administrative
process,
[10]
and are subject to appeal to the High Court.
[11]
[10]
Compelling constitutional and social policy
considerations informed the introduction of the legislation that is
manifest in the
Ombud Act. The promotion of access to justice
by those not easily able to afford to litigate in the civil courts
was but
one of those considerations. Another was the social
utility to be achieved by the provision of a relatively cheap and
informal
dispute resolution mechanism for the disposal of community
scheme related issues. It requires little insight to appreciate
that those commendable policy considerations would be liable to be
undermined if the courts were indiscriminately to entertain
and
dispose of matters that should rather have been brought under the
Ombud Act. Whilst judges and magistrates may not have
the power
to refuse to hear such cases,
[12]
they should, in my view, nonetheless use their judicial discretion in
respect of costs to discourage the inappropriate resort to
the courts
in respect of matters that could, and more appropriately should, have
been taken to the Community Schemes Ombud Service.
[13]
[11]
In my judgment, it was undoubtedly
inappropriate for the trustees to have proceeded for the relief that
they sought in the current
matter in the High Court rather than
through the Community Schemes Ombud Service. Furthermore,
nothing about the matter suggests
to me that it would have been
necessary or appropriate for them to prosecute the matter there with
legal representation.
Had I thought otherwise, I might have
been persuaded to allow the applicant costs on the tariff applicable
in respect of proceedings
under the auspices of the Ombud Service.
But in the context of my assessment of the simple and uncomplicated
character of
the matters in dispute, I have concluded that the
appropriate course is to make no order as to costs, which means that
each party
will bear its own expenses in the litigation.
[12]
An order will issue in the following terms:
(a)
The
respondent is directed within 10 days of the date of this order to
make application to the trustees of the applicant body corporate
for
permission to replace the existing plastic pipes installed by her
through the basement parking area with copper piping.
(b)
The
respondent is directed to effect the replacement of the pipes
adumbrated in the application provided for in terms of paragraph
(a)
of this order, and also to redirect the geyser overflow pipe in the
manner directed by the trustees, within 30 days of
the date upon
which she is informed by the trustees, in writing, of the approval of
her aforementioned application
(c)
The
respondent is interdicted and restrained from utilising the area of
the section registered in her name in terms of Deed of Transfer
ST
3296/2012 that was designated on the related approved ground floor
site plan as a garage for any other purpose than the usages
ordinarily applicable in respect of a garage.
(d)
There
shall be no order as to costs.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicant’s counsel: S. Fergus
Applicant’s
attorneys: Russell Knight and Associates
Respondent’s counsel: K. Felix
Respondent’s attorneys: Miltons Matsemela
[1]
Section 13(1)(g) provides: ‘
An
owner must when the purpose for which a section or exclusive use
area is intended to be used is shown expressly or by implication
on
or by a registered sectional plan, not use nor permit such section
or exclusive use area to be used for any other purpose:
Provided
that with the written consent of all owners such section or
exclusive use area may be used for that purpose as consented
to
.’
It falls to be read with s 13(2), which provides: ‘
Any
owner who is of the opinion that any refusal of consent of another
owner in terms of the proviso to subsection (1) (g) is
unfairly
prejudicial, unjust or inequitable to him or her, may, within six
weeks after the date of such a refusal, make an application
in terms
of this subsection to an ombud.
’
The ombud contemplated by s 13(2) is an ‘ombud’
within the definition of the word in s 1 of
the
Community
Schemes Ombud Service Act 9 of 2011.
[2]
Per
Warner
AJ (as he then was) in
Assagay
Quarries (Pty) Ltd v Hobbs and Another
1960
(4) SA 237
(N) at 240H (also reported at
[1960] 2 All SA 558
(N)); referred to with approval in
Allaclas
Investments (Pty) Ltd and another v Milnerton Golf Club and others
[2007] ZASCA 167
,
[2008] 2 All SA 1
(SCA),
2008 (3) SA 134
, at para.
21.
[3]
See the long title of the Act and
s 2. ‘
Community
schemes
’ are
defined in terms of s 1 of the Ombud Act to include sectional
titles development schemes, share block companies
and home or
property owners’ associations.
[4]
Sections 22(1)(b) and 29(1)(b) read
with the ‘Community Schemes Ombud Service Regulations: Levies
and fees’ GNR.1232
of 7 October 2016.
[5]
Sections 38 and 39.
[6]
Section 50.
[7]
Section 52.
[8]
Section 47.
[9]
Section 21(2)(c).
[10]
Section 56.
[11]
Section 57; and see
Trustees
for the Time Being of the Avenues Body Corporate v Shmaryahu and
Another
[2018]
ZAWCHC 54
;
2018 (4) SA 566
(WCC) in respect of the indicated
procedure for such appeals.
[12]
Cf.
Standard
Credit Corporation Ltd v Bester and Others
1987 (1) SA 812
(W) at 815-819 (also reported at
[1987] 3 All SA
96)
, endorsed in
Agri
Wire (Pty) Ltd and another v Commissioner of the Competition
Commission, and Others
[2012] ZASCA 134
;
[2012] 4 All SA 365
(SCA);
2013 (5) SA 484
,
at para. 19 (in note 9) and in this Division in
Marth
NO v Collier and Another
[1996] 3 All SA 506
(C);
sed
contra
In
re: Nedbank Limited v Thobejane and related matters
[2018]
ZAGPPHC 692, [2018] 4 All SA 694 (GP), 2019 (1) SA 594.
[13]
Cf.
Derero
v Derero
1934 WLD
19
at 21-22 and
Goldberg
v Goldberg
1938
WLD 83
at 85-86, both of which judgments are mentioned in discussion
in
Standard Credit
Corporation v Bester
supra.