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[2008] ZASCA 109
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Body Corporate of the Sectional Title Scheme Seascapes v Ford and Others (639/07) [2008] ZASCA 109; 2009 (1) SA 252 (SCA) ; [2009] 1 All SA 429 (SCA) (23 September 2008)
Links to summary
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No: 639/07
THE BODY CORPORATE OF THE SECTIONAL
TITLE SCHEME SEASCAPES
Appellant
and
CYNTHIA ANNE FORD
First Respondent
THE BODY CORPORATE OF THE SECTIONAL
TITLE SCHEME OCEAN VIEW HEIGHTS
Second Respondent
CONRAD PETER ERLAND HANSEN
Third Respondent
RUPERT TAILLEFER DU TOIT
Fourth Respondent
THE BODY CORPORATE OF THE SECTIONAL
TITLE SCHEME OLIVER COURT
Fifth Respondent
THE BODY CORPORATE OF THE SECTIONAL
TITLE SCHEME BEN ROMA
Sixth Respondent
THE REGISTRAR OF DEEDS
Seventh Respondent
Neutral citation:
Seascapes v Ford
(639/07)
[2008] ZASCA 109
(23 September 2008)
Coram: STREICHER, MTHIYANE, MLAMBO, MAYA and COMBRINCK JJA
Heard: 4 SEPTEMBER 2008
Delivered: 23 SEPTEMBER 2008
Summary:
Sectional Titles Act 95 of 1986
–
special resolution – agreement in writing by non-member, if not
revoked upon becoming a member, becomes agreement
in writing by
member – resolution interpreted so as to give effect to
intention of signatories.
_________________________________________________________________________
ORDER
_________________________________________________________________________
On appeal from: High Court, Cape Town (Uijs AJ sitting
as court of first instance)
T
he appeal is
dismissed with costs.
____________________________________________________________
JUDGMENT
____________________________________________________________
STREICHER JA (MTHIYANE, MLAMBO, MAYA & COMBRINCK JJA
concurring)
[1]
In terms of a
notarial agreement concluded on 5 June 2003 and registered on 4 July
2003 the appellant, being the body corporate
in respect of the
Sectional Title Scheme Seascapes on Erf 1745 Sea Point East in Cape
Town, granted to the first to sixth respondents
as owners of
neighbouring properties, the right to use parking bays in the
sectional title scheme. The appellant, contending that
the notarial
agreement was entered into without its authority, applied to the Cape
High Court (‘the court a quo’) for
the agreement to be
declared invalid and for its registration to be set aside. The
application was dismissed but the court a quo
granted leave to the
appellant to appeal to this court.
[2] As the proceedings were on notice
of motion the court a quo correctly held that the matter had to be
decided on the basis of
the facts averred in the appellant’s
affidavits and admitted by the respondents together with the facts
alleged by the respondents.
[3]
The
construction of the Seascapes Sectional Title Scheme as it now stands
required departures from the provisions of the applicable
town
planning scheme. Neighbouring property owners objected to these
departures but eventually agreed to withdraw their objections
in
return for an undertaking by the developer, Faircape Property
Developers CC (‘the developer’), to register servitudes
over six parking bays in the development in favour of neighbouring
properties. As a result consent to the required departures was
obtained and the project was completed.
[4]
In
terms of
s 11(1)
of the
Sectional Titles Act 95 of 1986
a
developer may, after approval of a draft sectional plan by the
Surveyor–General, apply to the registrar in charge of the
deeds
registry in which the land comprised in the scheme is registered, for
the opening of a sectional title register in respect
of the land and
building in question, and for the registration of the sectional plan.
When making such an application a developer
may impose
registrable
conditions
(s 11(2)).
According to Mr Vietri, a member of the developer, he was
advised that the developer could implement the agreement with the
objectors by imposing registrable conditions in terms of
s 11(2)
but that it would involve a further delay, since documentation
incorporating such conditions had to be amended and resubmitted
to
the appropriate authorities. For this reason the developer decided
that it would be better to proceed with the registration
of the
sectional plan and the opening of a sectional title register and to
procure the body corporate of the sectional title scheme,
once
established, to attend to the registration of the servitudes.
[5]
Upon
registration of a sectional plan the building or buildings and the
land shown thereon are deemed to be divided into sections
and common
property as shown on the sectional plan
(s 13(1)).
Separate
ownership may be acquired in such sections (s 2(b)). The common
property is owned by the owners of sections jointly
in undivided
shares proportionate to the quotas of their respective sections as
specified on the sectional plan
(s 16(1)).
A section together
with its undivided share in the common property is defined as a unit
(s 1).
With effect from the date on which any person other than
the developer becomes an owner of a unit in a scheme there is deemed
to
be established for that scheme a body corporate of which the
developer and such person are members, and every person who
thereafter
becomes an owner of a unit in that scheme becomes a member
of that body corporate
(s 36(1)).
[6]
Section
29
makes provision for the burdening of the land shown on a sectional
plan with a servitude by the body corporate if directed to do
so by
special resolution adopted by the owners. The section reads as
follows:
‘29
(1) The owners may by special resolution direct the body corporate-
to execute on their behalf a servitude or restrictive agreement
burdening the land shown on the relevant sectional plan;
to accept on their behalf a servitude or
restrictive agreement benefiting the said land.
(2) Every such servitude or agreement shall be embodied in a notarial
deed and shall be registered by the registrar by noting such
deed on
the schedule of servitudes and conditions referred to in
section
11(3)(b)
and on the title deeds of any party to such servitude or
restrictive agreement whose title deeds are registered in the land
register.
(3) . . .’
[7]
A
special resolution is defined as follows
(s 1):
‘“
special resolution” means,
subject to subsection (2), a resolution passed by a majority of not
less than three-fourths of
the votes (reckoned in value) and not less
than three fourths of the votes (reckoned in number)
of
members of a body corporate who are present or represented by proxy
or by a representative recognized by law at a general meeting
of
which at least 30 days’ written notice, specifying the proposed
resolution, has been given, or a resolution agreed to
in writing by
at least 75% of all the members of a body corporate (reckoned in
number) and at least 75% of all such members (reckoned
in value)
personally or by proxy or by a representative of any such member
recognized by law: Provided . . .’
Only the alternative meaning of special resolution is of
relevance in this matter.
[8]
The
Seascapes sectional title register was opened on 24 December 2002. On
the same day 18 of the 21 units in the scheme were transferred
to
their respective purchasers. The other three remained the property of
the developer until they were subsequently transferred.
[9] Before the opening of the
register and the transfer of the units to the purchasers and in order
to procure the registration
of the servitudes agreed to with the
objectors, the developer had obtained, with the exception of one, the
signatures of the purchasers
of the 18 units which were transferred
on 24 December 2002, to a document which purports to be the minutes
of a meeting. The document
reads as follows:
‘Minutes of a meeting of the members of the Body Corporate of
the Sectional Title Scheme Seascapes (still to be established)
at
which meeting the following special resolution had been passed in
terms of
section 29
read together with the definition of special
resolution in
section 1
of the Sectional Titles Act 95 of 1986.
Resolved that:
1. The Body Corporate enter into a Notarial
Agreement together with Cynthia Ann Ford, Ocean View Heights Body
Corporate SS32/1989,
Conrad Peter Eland Hansen and Rupert Taillefer
du Toit, Oliver Court Body Corporate SS62/1987 and Ben Roma Body
Corporate SS206/1989
as per the draft agreement annexed hereto marked
“A” and initialled for purposes of identification.
2. Michael Joseph Vietri, be and he is hereby duly
authorised to sign all documents and do all things necessary to give
effect to
the resolution in 1 above.’
(
I
shall refer to the document as ‘the minutes’ and to the
content thereof as ‘the resolution’.)
After the opening of the sectional
title register and the transfer of the 18 units on the same day
,
the owners who had signed the minutes constituted more than 75% of
all the members of the appellant (reckoned in number) and more
than
75% of all such members (reckoned in value).
[10] The purchasers who signed the
minutes had been kept informed of the nature of the construction
delays caused by the objections
and the negotiations taking place and
were aware that the developer was obliged to grant servitude rights
to six parking bays as
a quid pro quo for obtaining the necessary
consents from the objectors.
[11] Subsequent to the opening of the
sectional title register Vietri, who had been authorised to give
effect to the resolution,
procured the registration of a notarial
agreement in terms of which the appellant -
(i) granted to the first respondent,
the second respondent, the third and fourth respondents jointly and
the fifth respondent the
right to use parking bays 4, 2, 1 and 3
respectively;
(ii) granted to the sixth respondent
the right to use parking bays 5 and 6; and
(iii) granted rights of way to
provide access to the parking bays.
[1
2] The
appellant contends that the notarial agreement is invalid because a
special resolution directing it to execute the agreement
as is
required by s 29 had not been adopted by the members of the
appellant and because even if the ‘minutes’
constituted a
special resolution by the members of the appellant, a different
agreement to the one authorised had been entered
into.
[1
3] The
respondents submitted that the resolution qualified as a special
resolution as defined in the alternative definition of special
resolution ie that part of the definition which requires the
resolution to have been agreed to in writing by at least 75% of the
members reckoned in number and value. The appellant on the other hand
submitted that no resolution by members could have been adopted
as
the minutes were signed at a time when the signatories were not
members of the appellant and could not have been members of
the
appellant as the appellant was not in existence yet.
[
14] It
is true that the resolution was adopted by non-members but the
signatories, by signing the resolution, indicated that they
agreed
that the appellant (which according to the resolution still had to be
established) should once it had been established enter
into the draft
agreement annexed to the resolution. When the appellant was
established and their units were transferred to them,
the signatories
became members of the appellant. None of them revoked his or her
agreement (consent) in writing, it remained his
or her agreement in
writing and having become a member it then constituted an agreement
in writing by a member. Consequently, after
transfer of their units
to the purchasers, the resolution constituted a resolution agreed to
in writing by the requisite majority
of members that the appellant
should enter into a notarial agreement as per the draft agreement
annexed to the minutes and that
Vietri should give effect to the
agreement. That was still the position when the notarial agreement
was concluded on 5 June 2003.
[
15] The
appellant submitted that a special resolution as defined had
nevertheless not been adopted as there is no evidence that
every
member had been given an opportunity to consider the resolution. He
could however not point to any indication in the Act
that that was
required for a special resolution according to the alternative
meaning of special resolution. In the result I am
satisfied that a
special resolution as defined had been adopted.
[
16] There
are differences between the draft agreement and the registered
notarial agreement. The appellant relies on the differences
summarised as follows in one of the affidavits filed by it:
‘(a) The first respondent was given a servitude right to one
parking bay. The third and fourth respondents were jointly given
a
servitude right to one parking bay. The sixth respondent was given a
servitude right to two parking bays. In respect of each
such parking
bay, the square metreage differs between the draft agreement and the
notarial agreement.
(b) The notarial agreement records a servitude right of way both in
favour of the third and fourth respondents and in favour of
the fifth
respondent. Neither servitude is contained in the draft agreement.
(c) The notarial agreement makes provision for the second respondent
to grant reasonable access over its servitude parking bay
to the
owner of a certain exclusive use store. That provision is not to be
found in the draft agreement.’
The appellant submitted that assuming that Vietri was
authorised to conclude the draft agreement on behalf of the appellant
he had
no authority to conclude an agreement which differed in these
respects.
[
17] The
draft agreement in so far as it relates to the right to use a parking
bay to be given to the first respondent reads as follows:
‘
Seascapes as owner of Erf 1745 hereby
grants to Ford as owner of Erf 291 a servitude parking bay 13
(
Thirteen) square metres in extent, which
servitude is depicted by the figure abjk on Diagram No.
/2002 attached hereto.’
The
corresponding
provison in the notarial agreement reads as follows:
‘
Seascapes hereby grants to Ford as owner of
Erf 291 a servitude parking bay SB4 12 (Twelve) square metres in
extent, which servitude
is depicted by the figure R16, R19, R20, R21,
R22, R17 on
Sheet 3 of Sectional Plan SG
No. D.209/2003 which servitude extends to a height of 61,35 metres
above mean sea level.’
The wording in respect of the other parking bays is
similar except
that the areas of the parking bays
differ;
that no mention is made
in
the notarial agreement of the extension above sea level in respect
of the parking bays granted to the second respondent and
the sixth
respondent; and
that the right of the second
respondent is qualified in the notarial agreement but not in the
draft agreement. The qualification
reads as follows:
‘Ocean View Heights will grant reasonable access over servitude
parking bay SB2 to the owner of exclusive use area Store
S3 depicted
on Sheet 5 of Sectional Plan SG No. D.209/2003.’
[
18] According
to the draft agreement one of the parking bays is 12 m² in
extent and all the others 13 m² whereas in terms
of the notarial
agreement one of the parking bays is 15 m², another is 13 m²
and the other four are 12 m² in extent.
In the result the total
area of the parking bays according to the draft agreement is 77 m²
and according to the notarial agreement
76 m². The
appellant did not place any reliance on the fact that the extension
above sea level is mentioned in respect
of some of the parking bays
in the notarial agreement but not in respect of any of the parking
bays in the draft agreement.
[
19] The
respondents submitted that on a proper construction of the resolution
Vietri was authorised to enter into the notarial agreement
on behalf
of the appellant. According to the draft agreement the servitudes are
depicted on a diagram annexed to the agreement.
According to this
diagram all the parking bays are 5m long and 2.5m wide ie 12,5 m²
in extent and according to a note on the
diagram parking bay 2 is
approximately 12 m² in extent and all the others are
approximately 13 m² in extent. The question
thus arises whether
on a proper interpretation of the resolution the purchasers agreed
that the area of the parking bays had to
be exactly what they are
stated to be in the draft agreement or whether that area was only
intended to be an approximate area.
The appellant submitted that the
former was the case and that the diagram could not be used to
interpret the draft agreement.
[
20] What
has to be determined is the ambit of the resolution ie what did the
signatories intend to agree to. Although the resolution
was that the
appellant should enter into a notarial agreement as per the draft
agreement it is apparent from a reading of the draft
agreement that
the intention was not that the notarial agreement was required to be
in the exact same terms as the draft agreement.
According to the
draft agreement the parking bays are depicted by figures on ‘Diagram
No. /2002 attached hereto.’
The diagram attached is not
a final diagram. It is specifically stated that all data on the
diagram is approximate. It is therefore
clear that the signatories
must have had in mind that a final diagram would be prepared in which
the data ie the location and area
could differ from those indicated
on the diagram annexed. But could they have intended that the area
according to the final diagram
should be exactly the area stated in
the draft agreement? In my view that could not have been the
intention. It is quite clear
from the provisional diagram that the
exact areas still had to be determined. It follows that properly
construed the areas stated
in the draft agreement were intended to be
approximate and not exact.
[
21] The
provisional diagram also depicted a right of way in favour of parking
bays 1 to 4 and a right of way in favour of parking
bays 5 and 6 (as
numbered on the provisional diagram). Those rights of way are
incorporated in the notarial agreement but in the
draft agreement
only the rights of way in favour of parking bays 1 and 2 and parking
bays 5 and 6 are mentioned. The omission from
the draft agreement of
the right of way in favour of parking bays 3 and 4, which is exactly
the same as the right of way granted
in respect of parking bays 1 and
2 and which is required in order to gain access to the parking bays,
is a patent error. The signatories
could not have intended to grant a
right to use the parking bays without at the same time granting a
right of way to access these
parking bays. Read with the provisional
diagram which is an annexure to the draft agreement I am satisfied
that the signatories
intended to authorise the registration of the
right of way not only in respect of parking bays 1 and 2 but also in
respect of parking
bays 3 and 4.
[2
2] Storeroom
S3 is delineated on the sectional plan as an exclusive use area. In
order to make use of the storeroom access over
parking bay 2 is
required. No express provision for such access is made in the draft
agreement but there can be no doubt that had
the signatories been
asked the question they would have answered but naturally the
servitude right to parking bay 2 should be made
subject to such
access being granted to whoever is entitled to the use of that
exclusive use area. The signatories therefore by
implication directed
the appellant to impose the qualification to the servitude granted in
respect of parking bay 2.
[23
] It
follows that the court a quo correctly dismissed the application and
that the appeal should be dismissed with costs.
__________________
P E STREICHER
JUDGE OF APPEAL
APPEARANCES
:
For Appellant: E Fagan
Instructed by
Bernadt Vukic Potash & Getz, Cape Town
Lovius-Block, Bloemfontein
For Respondent: S P Rosenberg SC
Instructed by
Smith Tabata Buchanan Boyes, Cape Town
E G Cooper & Sons Inc, Bloemfontein