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[2019] ZAWCHC 59
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Mineur v Baydunes Body Corporate and Others (11020/2018) [2019] ZAWCHC 59; [2019] 3 All SA 611 (WCC); 2019 (5) SA 260 (WCC) (24 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:
11020/2018
In
the matter between:
MARETHA
MINEUR
Applicant
v
THE
BAYDUNES BODY
CORPORATE
First
Respondent
COMMUNITY
SCHEMES OMBUD SERVICE
Second
Respondent
THE
ADJUDICATOR: ADV
BLOCK
Third
Respondent
Coram:
Justice J I Cloete
Heard:
30 April 2019
Delivered:
24 May 2019
JUDGMENT
CLOETE
J
:
Introduction
[1]
This is an appeal in terms of
s 57
of the
Community Schemes Ombud Service Act
[1
]
(“CSOS Act”) against an adjudication order made by the
third respondent on 23 May 2018 dismissing relief sought
by the
applicant. Section 57 permits an appeal to the High Court, but only
on a question of law.
[2]
The appeal is opposed by the first respondent. During argument
counsel for the parties were
ad idem
that the third
respondent’s reasoning in reaching his conclusion was generally
confusing and indefensible and that no purpose
would be served in
having regard thereto.
Mr Engelbrecht
who appeared for the
applicant contended that the conclusion reached by the third
respondent was wrong, whereas
Mr Bridgman
who appeared for the
first respondent submitted that, although he could not defend much of
the third respondent’s reasoning,
the conclusion that he
ultimately reached was correct.
[3]
The appeal essentially relates
to the correct interpretation of
s 13(1)(g)
of the
Sectional
Titles Schemes Management Act
>
[2]
(“the Management Act”) and its management rule 30(f). The
aforementioned Act came into operation on 7 October
2016, its
purpose being to assume all management provisions previously
contained in the Sectional Title Schemes Act
[3]
in a separate legislative instrument,
[4]
with its own management rules
[5]
and conduct rules.
[6]
The management rules are prescribed in terms of s 10(2)(a) of
the Management Act and the conduct rules in terms of s 10(2)(b)
thereof.
[4]
Section 10(1) of the Management Act provides that:
‘
A
scheme must as from the date of establishment of the body corporate
be regulated and managed, subject to the provisions of this
Act, by
means of rules.’
[5]
Sections 10(2) and (3) read as follows:
(2)
The rules must provide for the regulation, management,
administration, use and enjoyment of sections and common property,
and
comprise-
(a)
management rules, as prescribed, which rules may subject to the
approval of the chief ombud be substituted, added to, amended
or
repealed by the developer when submitting an application for the
opening of a sectional title register, to the extent prescribed
by
regulation, and which rules may be substituted, added to, amended or
repealed by unanimous resolution of the body corporate
as prescribed;
and
(b)
conduct rules, as prescribed, which rules may, subject to the
approval of the chief ombud, be substituted, added to, amended
or
repealed by the developer when submitting an application for the
opening of a sectional title register, and which rules may
be
substituted, added to, amended or repealed by special resolution of
the body corporate, as prescribed: Provided that such conduct
rules
may not be irreconcilable with any prescribed management rule
contemplated in paragraph (a).
(3)
The management or conduct rules contemplated in subsection (2) must
be reasonable and apply equally to all owners of units.’
[6]
The applicant seeks the setting aside of the adjudication order
together with the following declaratory relief:
6.1 That s 13(1)(g) applies to
the conversion of garages to living quarters in the Baydunes
Sectional Title Scheme No 297/1993
(“the Scheme”);
6.2 That the adoption on 18 December
2017 by the first respondent, at an annual general meeting, of
conduct rule 10 for the Scheme
be declared unlawful, invalid and set
aside; and
6.3 That special resolutions 1 and 3
taken at the same meeting also be declared unlawful, invalid and set
aside.
[7]
In short, special resolution 1 purported to approve the conversion of
garages in the Scheme to living quarters; special resolution
3 to
create new exclusive use areas from common property; and conduct rule
10 to confer rights of exclusive use of additional parts
of the
common property upon members of the body corporate (the registered
owners) for parking purposes in accordance with a certain
layout
plan. These rights were ostensibly conferred pursuant to s 10(7)
of the Management Act, which must be read together
with s 10(8)
thereof and which provide as follows:
‘
(7)
A developer or a body corporate may make management or conduct rules
which confer rights of exclusive use and enjoyment of parts
of the
common property upon members of the body corporate.
(8)
The rules contemplated in subsection (7) must-
(a)
include a layout plan to scale on which is clearly indicated-
(i)
the locality of the distinctively numbered exclusive use and
enjoyment parts; and
(ii)
the purposes for which such parts may be used; and
(b)
include a schedule indicating to which owner each such part is
allocated.’
[8]
At the heart of the dispute is the meaning to be ascribed to the word
‘
section’
in s 13(1)(g) and whether the first
respondent followed the correct procedure in adopting special
resolutions 1 and 3 and
conduct rule 10.
The
Baydunes Scheme
[9]
The Scheme, of which the first respondent, as previously mentioned,
is the body corporate, is situated in the coastal town of
Hartenbos.
It was initially conceived as a housing scheme built for Mossgas, but
was converted into a sectional title scheme in
1993. It consists of
73 sections (or units). The applicant is the registered owner of unit
59 in the Scheme, which she has held
since its inception.
[10]
The Scheme consists of a number of physically separate buildings or
terraced houses (hereinafter referred to as ‘
cantons’
)
within the greater complex. As it was not originally built as a
unitary sectional title complex, each canton differed. Because
of
these differences it was decided that issues in respect of general
appearance and requirements of each canton should be dealt
with
separately, and firstly, by the respective cantons.
[11]
Accordingly, before 2012, a so-called ‘
Canton System’
was implemented and applied. According to the applicant, this system
was intended to ensure that alterations made by owners would
be
aesthetically pleasing and uniform
intra
canton.
[12]
The Canton System was implemented on 18 December 2002 by special
resolution. It provided for the following. A canton consisted
of a
number of defined units. Membership of a canton was automatic and
involuntary. It was represented by a canton representative
elected by
majority vote by the members of each canton from time to time. The
board of trustees was required (again from time to
time) to appoint
members of an ‘
Aesthetic Committee’
, which would
consist of the chairman of the trustees (also chairman of the
Aesthetic Committee), the Scheme manager, and a registered
architect
appointed by the trustees for this purpose. The trustees in
consultation with the architect were required to establish
aesthetic
guidelines, called the ‘
Baydunes Building and Aesthetic
Guidelines’
which would be made available to all owners.
The guidelines could contain directives in respect of all aspects of
alterations,
fixtures, fittings, placement of objects, painting and
other aesthetic aspects mentioned in the rules.
[13]
Whenever an owner wished to undertake a ‘
regulated action’
which entailed: (a) a structural alteration to a section or any
part of the common property (including an exclusive use area),
other
than an interior alteration; or (b) install, erect or place a
fixture, fitting, apparatus or other object outside his
or her
section; or (c) do anything which affected the exterior
appearance of a section or the appearance of any part of the
common
property (including an exclusive use area), the prescribed procedures
had to be followed. They involved the following. Such
an owner was
required to furnish the canton representative of his or her canton
with an application with details of the intended
action and any other
details the canton representative might require. If so required by
the canton representative, or the Aesthetic
Committee, the owner was
required to obtain the written consent of each member of the canton.
If considered necessary by the canton
representative or the trustees,
the canton representative was required to consult with each member of
the relevant canton or call
a meeting of members of the canton in
order to elicit the views of the members and, if necessary, to vote
on the matter. At a meeting,
or by written consent, a majority of 75%
of all members of that canton could grant provisional consent,
including subject to the
imposition of reasonable conditions.
[14]
As soon as possible after receiving the application, the canton
representative was required to compile a report and forward
same to
the chairman of the Aesthetic Committee, which was in turn required
to consider the application together with the report
of the canton
representative and compile recommendations. The trustees had the
authority to approve an application with or without
conditions or to
refuse it. Where the governing legislation at the time stipulated
further requirements, the trustees were required
to present the
documentation received together with their recommendations to the
body corporate for consideration, to be dealt
with in terms of the
relevant statutory provisions. Where it was contemplated that
additional common property would be built upon
(including an
exclusive use area), compensation would be determined by dividing the
area concerned by the total area of the common
property, and
multiplying the result by the municipal valuation of the land at the
time.
[15]
According to the applicant the
Canton System did not create or confer any right upon an owner to
change the use of, or make alterations
to, his or her section, but
implemented a process that had to be followed by an owner if he or
she wished to do so. There were
always a few owners who did not obey
the rules of the Scheme, but no serious transgressions were ever
reported to the applicant’s
knowledge. The plans for each
section in a particular canton were the same, so there was no need to
repeatedly approve the same
plan. Accordingly, once permission was
granted to one owner for certain alterations, it applied to all other
owners in that particular
canton as well.
[7]
[16]
During 2011/2012 the Canton System was abandoned by the trustees
elected at the time. From at least 2012, a number of owners
have made
alterations, improvements or extensions to their sections without any
formal approval from the body corporate and/or
the local authority.
This included certain owners converting their garages into living
quarters (bedrooms, living rooms etc). The
applicant herself
converted her garage into a bedroom; however, during 2017 she
converted it back to a garage. It is common cause
that the
alterations, improvements and extensions made by the owners concerned
were unlawful.
[17]
By December 2016 it was recognised that steps had to be taken to
regularise (or ‘
legalise’
) these unlawful
conversions. This came after the local authority (the Mossel Bay
Municipality) demanded that the owners of the
units concerned provide
it with building plans, approved by the trustees of the body
corporate by a certain date, failing which
they would be required to
reinstate their garages and units to the position they were prior to
the conversion. In addition, each
owner was required to submit proof
to the municipality that he or she had the use of two parking bays
for his or her section.
[18]
The body corporate sought legal advice regarding how to regularise
the above state of affairs. It initially intended to seek
a special
resolution by written consent, ostensibly in terms of management rule
29(2) to ‘
ratify the existing alterations by owners to the
common property who converted their garages (which are registered as
part of their
sections) into habitable rooms’
and ‘
to
the use of the aforesaid converted garages (forming part of the
sections) by the owners of the sections for the purpose of habitable
rooms’.
[19]
In the draft ‘
Written Consent’
prepared by the
body corporate’s legal advisors at the time, it was expressly
recorded that it was uncertain whether s 13(1)(g)
was applicable
in this case, and that any dispute in this regard might have to be
referred to the ombud in terms of the CSOS Act,
alternatively the
body corporate could apply to court for an appropriate order. In the
same document it was recorded that:
‘
Take
notice that the change in use of the aforesaid garages entails the
change in use of
a
part of a section
and not the change in use of a section
.
Section
13(1)(g)… requires the written consent of all owners to the
change in use of
a section
…’
(Emphasis
supplied).
[20]
As the deponent to the first respondent’s answering affidavit,
Mr Meyer put it:
‘
[The
trustees’ legal advisors]
expressed
doubt as to whether section 13(1)(g)… applied to the owners’
conversion of the garages as the owners had
converted a part of their
section and not the whole section and section 13(1)(g) refers to “a
section” and does not
include reference to “a part of a
section”. As such they stated that this matter could either be
referred to the CSOS
or the High Court to obtain clarification…’
[21]
Management rule 29 reads in relevant part as follows:
‘
29
Improvements to common property
(1)
The body corporate may on the authority of a unanimous resolution
make alterations or improvements to the common property that
is not
reasonably necessary.
(2)
The body corporate may propose to make alterations or improvements to
the common property that are reasonably necessary; provided
that no
such proposal may be implemented until all members are given at least
30 days written notice with details of-
(a)
the estimated costs associated with the proposed alterations or
improvements;
(b)
details of how the body corporate intends to meet the costs,
including details of any special contributions or loans by the
body
corporate that will be required for this purpose; and
(c)
a motivation for the proposal including drawings of the proposed
alterations or improvements showing their effect and a motivation
of
the need for them;
and
if during this notice period any member in writing to the body
corporate requests a general meeting to discuss the proposal,
the
proposal must not be implemented unless it is approved, with or
without amendment, by a special resolution adopted at a general
meeting.’
[22]
Although the body corporate ultimately did not proceed to circulate
the draft Written Consent to all owners, the applicant
sought legal
advice in the interim and on 1 October 2017 she lodged an
application for dispute resolution with the second
respondent. In
that application, she asked for a ruling regarding:
22.1 The proper procedure to be
adopted for obtaining valid consent and authorisation to approve the
change of use of the garages,
or, put differently, whether s 13(1)(g)
applied, in which event the consent of
all owners
was required
for conversion of the garages in the Scheme to living units; as well
as a direction that the owners be informed of
all relevant facts
relating to the proposed decision, particularly in relation to
parking; and
22.2 Relief for owners already
affected or to be affected by the proposed formation of so-called
exclusive use areas from common
property as well as an order
preventing further deprivation of such common property.
[23]
On or about 17 November 2017 the applicant received a notice and
agenda for the annual general meeting of the body corporate
to be
held on 18 December 2017. The agenda included the deliberation
and voting in respect of proposed special resolutions
1 and 3 ‘
with
or without amendments’.
[24]
The proposed special resolution 1 read in relevant part as follows:
‘
Special
resolution in terms of management rule 29(2) to approve the
alterations and improvements to parts of sections and the common
property which had already been done by owners of sections to enable
their garages which are registered as part of their residential
sections to be converted into habitable space and to authorise all
other owners who have not so altered their garages to make
alterations and improvements to their sections and the common
property to enable their garages to be converted into habitable
space…
The
resolution is subject to compliance with the following conditions:
1)
Owners who have already converted their garages into habitable space
must submit building plans to the trustees by the 15
th
of
January 2018 for approval, before submitting the building plans to
Mossel Bay Municipality for approval.
2)
Owners who want to similarly convert their garages into habitable
space must submit building plans to the trustees by the 30
th
of April 2018 for their approval, before submission of the building
plans to the Municipality for approval. An owner must effect
the
improvements and alterations in accordance with the approved building
plans at his own cost.
3)
The trustees are hereby authorised and instructed to consider and
approve the building plans in respect of the garages, and the
trustees may attach reasonable conditions to their consent…’
[25]
The draft special resolution 3 read as follows:
‘
Special
resolution in terms of section 10(2)(b)… to approve the
attached Conduct Rule 10. The proposed resolution is as follows:
RESOLVED
:
The
members of the body corporate hereby by special resolution (with or
without amendments at the general meeting) approve the attached
Conduct Rule 10 conferring exclusive use areas (yards) to members of
the body corporate in terms of section 10(7)… The trustees
are
hereby authorised and instructed to amend the Pro-plan (plan to scale
of the exclusive use areas), if necessary. The trustees
are hereby
authorised and instructed to submit the Conduct Rule 10 to the chief
ombud for approval. The trustees are further authorised
to make such
reasonable amendments to the Conduct Rule as may be required by the
chief ombud.’
[26]
These resolutions were ostensibly passed at the annual general
meeting on 18 December 2017 (by a majority of 84.48%) despite
the objections of the applicant and certain other owners. Thereafter,
the applicant’s referral to adjudication in terms of
s 48
of the CSOS Act was heard, followed by the adjudicator delivering his
ruling on 23 May 2018.
Discussion
[27]
Section 13(1)(g) of the Management Act provides as follows:
‘
13
Duties of owners
(1)
An owner must- …
(g)
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.’
[28]
The Management Act defines
‘
section’
as meaning ‘
a section
shown as such on a sectional plan’.
[8]
It is common cause that, for present purposes, the sectional plan
pertaining to the Baydunes Scheme
[9]
depicts each section as comprising of two separate subsections.
Although not clearly specified as such on the plan which was attached
to the founding affidavit, counsel were
ad
idem
that the two
subsections are, by necessary implication, living quarters (the
larger rectangle) and a garage (the smaller rectangle),
linked by a
small exclusive use area. I mention this because, given the
definition of ‘
section’
itself, it was clearly intended by the legislature that a section,
for purposes of the Management Act, is not a broad, generic
term but
is determined by the specific sectional plan in each instance.
[29]
Mr Bridgman
rightly did not suggest that the garage part of a
section was intended by the drafter of the plan, or the local
authority which
approved it, to be used for any purpose other than a
garage (also referred to by the local authority as a ‘
parking
bay’
). It is convenient to deal first with
Mr Bridgman’s
argument advanced on behalf of the first respondent, and
thereafter with that of
Mr Engelbrecht
on behalf of the
applicant, since, during
Mr Bridgman’s
argument, the
issues were somewhat narrowed.
[30]
Mr Bridgman’s
argument in respect of resolution 1 may be
summarised as follows. Section 13 (1)(g) refers to the change of use
of an entire section
and not just a part of one. Had the legislature
intended that different parts of a section be “classified”
according
to their use, it would have said so. This interpretation is
supported by the definitions contained in management rule 2, as
well as management rule 27(2)(c) which makes it incumbent upon a
body corporate to keep proper records, amongst others, of
sections on
a sectional plan, indicating in each instance whether it is a primary
or utility section. Management rule 2 provides
that:
‘
2
Interpretation
(1)
In the interpretation of these rules, unless the context indicates
otherwise-…
(m)
“primary section” means a section designed to be used for
human occupation as a residence, office, shop, factory
or for any
other type of use allowed in terms of local municipal by-laws, not
being a utility section;…
(t)
“utility section” means a section which, in terms of
local municipality by-laws, is designed to be used as an accessory
to
a primary section, such as a bathroom, toilet, storeroom, workshop,
shed, servant’s quarters, parking garage, parking
bay or other
utility area, not being a primary section.’
[31]
This interpretation is also, so the argument went, fortified by the
use of the word ‘
section’
throughout management
rule 30, which imposes an obligation upon a body corporate to
take all reasonable steps to ensure that
a member or other occupier
of a section or exclusive use area does not,
inter alia
:
‘
(f)
subject to the provisions of section 13(1)(g)… use a section
or exclusive use area for a purpose other than for its intended
use
as –
(i)
shown expressly or by implication on a registered sectional title
plan or an approved building plan;
(ii)
can reasonably be inferred from the provisions of the applicable town
planning by-laws or the rules of the body corporate;
or
(iii)
is obvious from its construction, layout and available amenities…’
[32]
Mr Bridgman
submitted that given the absence of any provision
in the Management Act itself that each and every ‘
separate
room or part of a section must be classified as primary or utility’
,
s 13(1)(g) must be interpreted to mean that only when the intended
purpose (or use) of an
entire
section is to be changed must
the consent of all owners be obtained; since to interpret it
otherwise would lead to absurdity. The
examples he gave were:
(a) using a spare bedroom for storage purposes; (b) moving
a large storage cupboard in a kitchen
to another area of the kitchen
or other room; and (c) building an en-suite bathroom in a corner
of a bedroom.
[33]
He argued that because the Management Act applies to a variety of
sectional title schemes (including shopping centres and industrial
developments), the classification of sections in the management rules
as “primary” or “utility” is intended
to link
uses to those permitted by the local authority zoning by-laws
applicable to each particular scheme (i.e. depending upon
the local
authority in whose area it is situated).
[34]
For the reasons that follow I am not persuaded by this argument.
First, as mentioned earlier, the definition of ‘
section’
in the Management Act itself is specifically made dependent upon the
applicable sectional title plan in each instance. In respect
of the
Baydunes Scheme, each individual section depicted on the plan is
comprised, by necessary implication, of two subsections,
one for
living quarters and the other for parking.
[35]
This is not only shown –
as stipulated in management rule 30 – by implication on the
plan, it can also reasonably be
inferred from the provisions of the
applicable town planning by-laws, which require two parking bays per
dwelling unit.
[10]
The first respondent does not suggest that one of these bays is
anything other than the garage subsection of a unit. Moreover,
it is
obvious from the construction, layout and available amenities of the
Scheme itself that this must be the case. Management
rule 30(f) is in
turn expressly subject to the provisions of s 13(1)(g).
[36]
Secondly, the classification of use of a section into “primary”
or “utility” in the management rules
does not, in my
view, assist the first respondent. This classification appears to
envisage the possibility of two subsections of
one composite section
in a sectional title scheme. They are given separate and distinct
meanings, and merely because a utility
section is defined as being
designed to be used as an accessory to a primary section, this does
not mean that its separate and
distinct purpose is subsumed into or
under the purpose of the primary section which, in the present case,
is living quarters. Both
are ‘
designed to be used’
for different purposes.
[37]
Turning
Mr Bridgman’s
argument around, had the
legislature intended to mean that s 13(1)(g) would only apply to an
entire section, no purpose would have
been served by the
classification of use in the management rules as primary or utility.
Moreover, this would lead to absurd results
because it begs the
question of how one section, comprised of two separate and distinct
subsections with different use purposes,
could be altered in any
manner at all.
[38]
Thirdly, in terms of the Mossel
Bay Municipality Integrated Zoning Scheme By-Law:
[11]
38.1 ‘
Garage’
is defined as ‘
a
building for the storage of one or more motor vehicles…’
;
[12]
38.2 Parking areas must be used for
the parking of vehicles and parking areas must be maintained in a
state suitable for the parking
and movement of vehicles;
[13]
and
38.3 As already stated, each section
in the Scheme is required to have two off-street parking bays
available to it.
[39]
The absence of any alternative designated parking bays supports the
applicant’s contention that the garages of sections
must be
used for their intended purpose, i.e. as parking for a vehicle. A
garage is self-evidently not suitable to be used as living
quarters.
[40]
Fourthly, as persuasively argued by
Mr Engelbrecht
, it is
evident that one of the purposes of s 13(1)(g) is to restrict owners
from effecting changes to the use of their sections
where such change
of use might have a negative impact on other owners, hence the
requirement of unanimous written consent before
such a change may be
implemented.
[41]
Changing a section’s garage into living quarters has the effect
of depriving that unit of a parking area for the occupants’
vehicle(s), requiring the occupants to find parking elsewhere –
in this case on the common property. This directly impacts
negatively
upon other owners in the Scheme because they are deprived of the free
use and enjoyment of part of the common property,
and it is likely to
increase congestion in the Scheme – particularly where all
owners are to be permitted to convert their
garages to living
quarters. This is clearly the type of scenario that s 13(1)(g)
envisaged would require consent from all the owners
before it can be
implemented.
[42]
As pointed out by
Mr
Engelbrecht
, at the 2016
annual general meeting of members of the Scheme, it was acknowledged
that ‘
the conversion
of a garage into a bedroom is a usage change and must be approved by
all owners, after which it is approved by trustees
and then the
Municipality’.
[14]
[43]
As far as could be established, there are no judicial decisions –
reported or unreported – which have specifically
considered the
proper interpretation of s 13(1)(g) and management rule 30(f).
It also appears that none of the standard academic
texts discuss
their import in the present context.
[44]
The closest is the decision in
Cuvè-Jakoby and
Another v Kaschub and Another
,
[15]
which concerned an application in terms of s 44(2) of the Sectional
Titles Act
[16]
to have the refusal by one owner to consent to change of use of a
garage declared unreasonable. However the court proceeded from
the
premise that the conversion of the three garages at issue (i.e. to
provide ablution facilities for staff, as well as for the
gardener
employed by the body corporate, to provide a rest and administration
room and an ironing room) was in each instance a
change of use as
envisaged in s 44(1)(g) of that Act, which was the predecessor
to s 13(1)(g), and thus required the written
consent of the owners of
all other units. At para [4] Traverso DJP stated:
‘
In
terms of the Act, the written consent of the owners of all the other
units is a prerequisite for an application for the change
of use of
the garage…’
[45]
However, it is not clear from the judgment whether the parties were
ad idem
that what was stated above by the learned Judge was
common cause, and I would thus be hesitant to regard this as direct
authority
on the point.
[46]
I agree with
Mr
Engelbrecht
that, quite
clearly, the type of changes of use cited as examples by
Mr
Bridgman
are not those that
should be affected by s 13(1)(g) as read with management rule
30(f). The reason for this is self-evident:
they do not affect any of
the other owners. As
Mr
Engelbrecht
formulated it,
the appropriate test should be whether or not the relevant change of
use envisaged materially affects the other
owners in the Scheme.
Operating a business would be such an example. Granting permission
for the conversion of all garages in the
73 units comprising the
Scheme to living quarters is clearly, in my view, another. It is
precisely for this reason that the consent
of all owners should be
required. This interpretation fits neatly into the plain wording of
s 13(1)(g). It also accords, in
my view, with the proper
approach to interpretation as set out in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[17]
that:
‘…
consideration
must be given to the language used in the light of the ordinary rules
of grammar and syntax; the context in which
the provision appears;
the apparent purpose to which it is directed and the material known
to those responsible for its production.
Where more than one meaning
is possible each possibility must be weighed in the light of all
these factors. The process is objective,
not subjective. A sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the
apparent purpose of the
document…’
[47]
To sum up: to my mind the proper interpretation to be placed on
s 13(1)(g) of the Management Act (as read with management
rule
30(f)) is that, where an owner intends to use a section (or
subsection of a section, as the case may be) for a use other than
its
purpose as shown expressly or by implication on a registered
sectional plan, and such intended use will materially affect the
other owners in the scheme, the consent of all owners in the scheme
is required. It follows that special resolution 1 must be declared
unlawful, invalid and set aside.
[48]
I should mention, for sake of
completeness, that the applicant also submitted that special
resolution 1 was invalid in any event
because it was ostensibly
passed in terms of management rule 29(2), which permits a body
corporate to make alterations or improvements
to common property that
are ‘
reasonably
necessary’
subject to
compliance with certain requirements.
Mr
Bridgman
conceded during
argument that the alterations or improvements proposed in special
resolution 1 – in this instance the common
property would be
the “outer side” of the median lines of each garage
[18]
– could not be regarded as reasonably necessary, other than for
the purpose of rendering previously unlawful conversions
lawful.
However it is difficult to conceive of how a statutory instrument
could ever be validly used for this purpose, and no more
need said
about it.
[49]
Turning now to special resolution 3 and the consequent adoption of
conduct rule 10, which purported to create new exclusive
use areas
from common property and to confer these upon owners for parking
purposes in accordance with a certain layout plan.
[50]
Mr Bridgman
did not take issue with
Mr
Engelbrecht’s
submission
that the adoption of conduct rule 10 does not comply with
s 10(8)(a)(ii)
[19]
of the Management Act in that the layout plan does not clearly
indicate the purpose for which such parts of the common property
may
be used. Nor did he take issue with
Mr
Engelbrecht’s
argument that, in any event, special resolution 3 and conduct rule 10
are unlawful and fall to be set aside because:
50.1 The manner in which the new
exclusive use areas have been allocated has resulted in certain
sections (eg. section/unit 7) being
deprived of any off-street
parking (other than its single vehicle garage), rendering the
allocation of the exclusive use areas
in contravention of the
applicable by-law, which requires that each section be allocated at
least two off-street parking bays;
and thus contravenes management
rule 30(c) which prohibits the use of sections and common property
which contravene the provision
of any law or by-law;
50.2 Purporting to confer upon
the
trustees
of the body corporate the power to amend the layout plan
contravenes section 10(2)(b) of the Management Act, which stipulates
that
conduct rules may only be substituted, added to, amended or
repealed by special resolution of the body corporate, as prescribed;
and
50.3 Arbitrarily allocating some units
large, and other units small, exclusive use areas: (a) contravenes
management rule 30(e)
in that it materially and negatively affects
the value or utility of certain owners’ sections and/or utility
of exclusive
use areas allocated to them; (b) contravenes
management rule 30(a) in that the unequal division of common property
as exclusive
use areas will unreasonably interfere with the use and
enjoyment thereof by certain owners; and (c) contravenes s 25
of the Constitution by depriving certain owners arbitrarily and
unfairly of their share of the common property.
[51]
Mr Bridgman
instead sought to persuade me that special
resolution 3 and conduct rule 10 are ‘
part of a process’
to resolve the difficulties faced by the body corporate in relation
to past unlawful conduct. The argument became somewhat circular
because, in so doing, he relied on the motivation expressed in the
impugned special resolution 3 where reference was made to s
10(2)(b)
of the Management Act. However the aforementioned subsection
provides, in express terms, that conduct rules may not be
irreconcilable with any prescribed management rule, which is, for the
reasons advanced by
Mr Engelbrecht
, exactly what
occurred.
[52]
It follows that special resolution 3 and conduct rule 10 must also be
declared unlawful, invalid and set aside. The first respondent
(or
any member) is not however without a remedy. It is at liberty to
invoke s 13(2) of the Management Act which provides that:
‘
(2)
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.’
[53]
Given my findings, it also follows that the third respondent erred on
questions of law and that the applicant’s appeal
must succeed.
Insofar as costs are concerned, I agree with
Mr Engelbrecht
that they should be borne by the first respondent, principally for
two reasons. First, it elected to ignore its own legal advisers
who
expressed doubt as to whether s 13(1)(g) applied and suggested
that the issue either be referred by the first respondent
to the
second respondent for decision or to the High Court to obtain
clarification. Secondly, in the knowledge that the applicant
had
referred the issue to the second respondent and that the CSOS process
was still under way, the first respondent proceeded to
prepare and
cause to be passed the impugned resolutions and to adopt conduct rule
10.
[54]
The following order is made:
1. The appeal succeeds with costs,
such costs to be paid by the first respondent on the party and party
scale, including any reserved
costs orders.
2. The third respondent’s
order in terms of sections 53 and 54 of the Community Schemes Ombud
Service Act 9 of 2011 under
reference CSOS 614/WC/17 dated 23 May
2018 is set aside, save for paragraphs 9.4.1 and 9.4.2 thereof, and
is substituted with an
order in the following terms:
2.1 It is declared that, in respect
of the Baydunes Sectional Title Scheme, No 297/1993 (“the
Scheme”), section 13(1)(g)
of the Sectional Titles Schemes
Management Act 8 of 2011 applies to the conversion of garages to
living quarters;
2.2 It is declared that conduct
rule 10 of the Scheme (adopted on 18 December 2017) is unlawful,
invalid and is set aside; and
2.3 It is declared that special
resolutions 1 and 3 of the first respondent dated 18 December 2017
are unlawful, invalid and are
set aside.
_____________________
J
I CLOETE
Cape Town
Tuesday 30 April
2019
Coram:
CLOETE
J
Case no:
11020/2018
MARETHA
MINEUR
Applicant
v
THE BAYDUNES
BODY
CORPORATE
First
Respondent
COMMUNITY
SCHEMES OMBUD SERVICE
Second
Respondent
THE
ADJUDICATOR: ADV
BLOCK
Third
Respondent
For
plaintiff
: Adv J B
Engelbrecht
,
4222275, 0716481680
Instructed
by:
Biccari Bollo Mariano Inc, Simon
Thomson, 4222173
For 1
st
respondent
: Adv Murray
Bridgman
,
4240899
Instructed by:
Goussard Coetzee & Otto, Ian Coetzee, 0350317
(2nd & 3rd
respondents not opposing)
[1]
No. 9 of 2011.
[2]
No. 8 of 2011.
[3]
No. 95 of 1986
[4]
See C G Van der Merwe: Sectional Titles: LAWSA 2
nd
ed Vol 24 at 206.
[5]
Contained in Annexure A thereto.
[6]
Contained in Annexure B thereto.
[7]
The Canton System was described by the applicant in response to
averments made by the first respondent’s deponent, Mr
Frederick Wilhelm Meyer, to the answering affidavit. The applicant
sought to strike out Mr Meyer’s averments in relation
thereto
on the basis that he only became a member of the Scheme in 2016 and
it thus constituted hearsay. However, this was not
pursued with any
vigour in argument and it is helpful to refer to the applicant’s
version in reply for contextual purposes.
[8]
Section 1 of the Management Act.
[9]
Annexure MM2 to the founding affidavit.
[10]
As confirmed by the Mossel Bay Municipality’s Manager (Town
Planning) in his email to the first respondent’s legal
advisers on 10 July 2018, annexure “D” to the answering
affidavit, record p208.
[11]
Provincial Gazette Extraordinary 7865, 19 January 2018.
[12]
Section 1 thereof.
[13]
Section 45(1)(e) and (f) thereof.
[14]
Annexure MM19, applicant’s replying affidavit, record p272.
[15]
2007 (3) SA 345 (C).
[16]
The predecessor to section 13(2) of the Management Act.
[17]
2012 (4) SA 593
(SCA) at para [18].
[18]
As provided for in the definition of ‘
common
property’
in s 1
as read with
s 5(4)
of the
Sectional Titles Act 95 of 1986
.
[19]
See para [7] above.