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[2018] ZAKZDHC 29
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Govender and Another v Naidoo and Others (13422/2014; 5146/2016) [2018] ZAKZDHC 29 (26 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 13422/2014
CASE
NO: 5146/2016
In
the matter between:
Kreban
Govender First
Applicant
Kovini
Govender Second
Applicant
and
Strini
Naidoo First
Respondent
Siva
Moodley Second
Respondent
Cyril
Moonsamy Third
Respondent
Avesh
Brijlal
Fourth
Respondent
Naresh
Theeruth Fifth
Respondent
Vinesh
Ruthilal Sixth
Respondent
Vasu
Narismulu Seventh
Respondent
Kuben
Pillay
Eighth
Respondent
Barry
Budree Ninth
Respondent
Kiruben
Govender Tenth
Respondent
Judgment
Lopes,
J
[1]
Two applications came before me on the 8
th
March 2018. The second application is an extension of the
first, and it makes sense to deal with both of them in one judgment.
The applicants in both applications are Mr and Mrs Govender and the
respondents in both applications are the trustees of the Body
Corporate of RiverClub Mews, a Sectional Title Development situated
at 15 Leeway Road, Queensburg, KwaZulu-Natal. The applications
concern the efforts of Mr and Mrs Govender to obtain permission from
the trustees to be allowed to keep in their section as pets,
an
African Grey parrot and a small Jack Russel dog.
[2]
The first application under case number 13422/2014 sought an order
directing four trustees to furnish their response to the
Govenders’
application for written consent to keep their pets in their section.
That application was opposed and answering
and replying affidavits
were delivered. The sectional title development consisted of
phase one and phase two. They
are separate entities in the
sense that they stand apart from one another, have different
entrances and phase two is fully enclosed
by its own boundary.
The first application was brought against the persons whom the
Govenders believed were the trustees
of the body corporate, of phase
two. However, it was accepted during the course of the
application that in fact there could
be only one body corporate which
governed both phase one and phase two. A consolidated body corporate
was formed, and the necessary
additions to the trustees initially
cited were then made and the correct respondents brought into the
first application.
The first application was not finally
determined because the new body corporate made a decision in writing
refusing permission
for the Govenders to keep their pets in their
section.
[3]
After permission was declined, the Govenders instituted the second
application under case number 5146/2016 seeking an order
reviewing
the decision of the trustees, setting it aside and replacing it with
an order that the Govenders are entitled to keep
the pets in their
section. Both the applications were set down for hearing together. In
the first application only the issue of
costs remained to be decided
by me.
[4]
The following aspects were common cause:
(a) The Govenders took
transfer of their section in February 2014.
(b) Because of the
refusal of the trustees to allow the Govenders to keep their pets in
their section, the Govenders have not as
yet moved into it.
(c) In the first
application the Govenders cited only four respondents as trustees of
the body corporate of phase two. When
their attention was drawn
to the fact that the four trustees were not the only trustees, and
that phases one and two constituted
one sectional title scheme with
one body corporate, the Govenders joined the fifth to tenth
respondents.
(d) The fact that there
should have been only one body corporate only came to light when the
trustees sought legal advice.
It was also the reason why the
trustees did not timeously respond to the Govenders’ request to
keep their pets as they should
have done.
(e) All that remains of
the initial application is the question of costs.
(f) In addition, and at
some stage between the two applications, the parties attempted to
refer the dispute to arbitration.
That referral was ultimately
unsuccessful as the parties were unable to agree on the powers of the
arbitrator.
(g) It also emerged
during the first application that the rules governing the conduct of
the section owners in the development had
not been registered.
The parties were agreed that the management and the conduct rules
applicable are those contained in
the schedule to the
Sectional
Titles Regulations to
the Sectional Titles Schemes Management Act,
2011.
(h) Regulation one of the
conduct rules provides:
‘
1.
Keeping of animals, reptiles and birds. –
(1)
The owner or occupier of a section must not, without the trustees’
written consent, which must not be unreasonably withheld,
keep an
animal, reptile or bird in a section or on the common property.
3)
The trustees may provide for any reasonable condition in regard to
the keeping of an animal, reptile or bird in a section or
on the
common property.
(4)
The trustees may withdraw any consent if the owner or occupier of a
section breaches any condition imposed in terms of sub-rule
(3).’
(i)
The
applicants applied to keep their pets in their section on the 11
th
June 2014. Permission was declined by the trustees on the 13
th
April 2015.
[5]
Ms
Mills
who
appeared for the Govenders, indicated at the outset of her argument
that she would not request a referral to oral evidence in
order to
resolve any disputes of fact which appear on the papers. She
submitted that the test for the resolution of disputes
of fact
in applications as set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 620
(A) does not apply in review applications. Ms
Mills
submitted that in review applications what must be considered is
whether the decision-maker may have been taken into account
considerations
which were irrelevant, or did not take into account
relevant considerations. I do not agree with the submission
that the
Plascon-Evans
test
does not apply where disputes of facts are raised in review
applications. Decisions may be reviewed by way of action
as
well as application. If one follows the application route, the
approach to disputes of fact in application proceedings applies.
[6]
It is clear from the papers that the erstwhile members of the body
corporate which was believed to operate in respect of phase
two only,
were of the view that a decision had previously been taken by the
section owners of phase two that no pets would be allowed
in phase
two. Those rules were, however, inapplicable because they had
never been registered. The members originally
believed
separate body corporates should govern phases one and
two, because they appear to be separate and distinct
developments,
even though they are part of the same scheme. Phase one
consists only of duplexes with small garden areas,
whilst phase two
comprises simplexes and duplexes, with some sections being completely
self-standing. The whole of phase two is
enclosed. The point is
made in the founding affidavits that pets were always permitted in
phase one of the scheme, and as
there should be only one body
corporate for both phases, the same rules should apply to both
phases. It was accepted, however,
by the Govenders that the
rule set out above vests the trustees with the discretion to refuse
their consent for pets to be kept
in any section. That
discretion must be exercised reasonably.
[7]
The Govenders maintained that they were informed by the person who
sold them their section that pets were also allowed in the
phase two
of the scheme. They only realised that that was not the case
after the registration of transfer of the section
into their names.
There is a dispute of fact on this issue, but in my view it is
not necessary to determine that dispute
because Ms
Mills
conceded
in argument (correctly, in my view) that the Govenders were bound to
have established the applicable rules from the then
body corporate of
phase two, prior to signing a purchase agreement. That they did
not do so is their fault. It is common
cause that at the time
the trustees took the decision not to allow the Govenders to have
their pets in their section, the single
body corporate had been
established and the trustees were aware of the discretion which they
were obliged to exercise.
[8]
Ms
Mills
submitted that the sole issue in this application is
whether the trustees properly applied their minds in reaching their
decision.
In this regard she referred to
Body Corporate of the
Laguna Ridge Scheme No 152/1987 v Dorse
1999 (2) SA 512
(D) at
517G-J, where McCall J referred to the judgment of Corbett JA
in
Johannesburg Stock Exchange and Another v Witwatersrand Nigel
Ltd and Another
1988 (3) SA 132
(A) at 152A-D, including the
following:
‘
Such
failure may be shown by proof
,
inter alia
,
that the decision was arrived at arbitrarily or capriciously or
mala
fide
or as a result of unwarranted adherence to a fixed principle or in
order to further an ulterior or improper purpose; or that the
president misconceived the nature of the discretion conferred upon
him and took into account irrelevant considerations or ignored
relevant ones; or that the decision of the president was so grossly
unreasonable as to warrant the inference that he had failed
to apply
his mind to the matter in the manner aforestated…’
[9]
Ms
Mills
,
and Mr
Hoar
who appeared for the respondents, were in agreement that one good
reason to refuse the application of the Govenders was sufficient
to
carry the day. Ms
Mills
submitted, however, that all the reasons put forward by the body
corporate were bad ones.
[10]
In their letter of the 13
th
April 2015 the trustees
recorded that they were guided in making their decision by the
following factors:
‘
1.
It is a longstanding principle that pets have not been permitted to
be kept at / in sections in Phase 2 of RiverClub Mews;
2.
The sections in RiverClub Mews Phase 2 differ significantly to those
in Phase one and were determined as not being suitable for
the
keeping of pets;
3.1
The two phases have since inception been incorrectly managed as if
separate schemes;
3.2
The new, properly appointed Board of Trustees was appointed on 24
th
January 2015 and have been involved in the complex tasks of preparing
draft Management Rules and Conduct Rules for consideration
by the
members in due course, which Rules would have the effect of legally
separating the management of the two phases, in so far
as is
permissible in terms of the Sectional Titles Act 1995 of 1986;
3.3
The draft Conduct Rules which will be proposed to and considered by
the members will provide for different rules to be applicable
to
those owning and residing in sections in Phase 1 to those owning and
residing in sections in Phase 2, and are principally intended
to
properly implement the rules which have historically been applied in
each phase;
3.4
In the circumstances the Conduct Rules which will be proposed by the
Trustees to apply to owners and residents of sections in
Phase 2 will
include a prohibition on the keeping of any pets;
3.5
It would therefore be remiss of the Trustees to grant consent for the
keeping of a pet in a section in Phase 2 during this interim
period
when, in all likelihood, Conduct Rules will, in the near future be
adopted in terms of which pets are prohibited in Phase
2;
3.6
It shall be unfairly discriminately to grant consent to you, when
owners and residents have previously not been permitted to
keep pets
in Phase 2 and were also not be so permitted in the future (if the
proposed Conduct Rules are adopted, which the trustees
believe is
probable).
In
considering the proposed new Conduct Rules, should the members
resolve to adopt rules which do in fact allow for pets to be kept
at
/ in a section in Phase 2, you shall be welcome to re-apply for
consent.’
[11]
Ms
Mills
submitted that rules relating to pets in sectional title schemes
generally revolve around aspects of nuisance. It is an
unwarranted adherence to a rule to adopt the attitude that, because
no pets were previously allowed, no pets whatsoever will be
allowed.
She submitted that that approach is in fact in contradiction to the
rules which are applicable. She submitted
that that was the
attitude of the body corporate as contained in their decision, and
they were not prepared to look beyond the
aspect of ‘no
animals’.
[12]
Ms
Mills
also submitted that to allow the Govenders their pets would not open
the flood-gates to everyone else being able to do so, because
reasonableness would always be a consideration. The rules as
they stand entitle the trustees to impose conditions, and further
entitles them to withdraw their consent should the conditions not be
adhered to by section owners. The trustees were not
entitled to
adopt the approach that the rules which are likely to come into
force, will constitute a complete ban on animals in
units in phase
two. As the standard rules provided for in the schedule to the
Rules to the Act are applicable, the trustees
could not make
decisions on any likely changes to those rules, until they have been
passed by the members.
[13]
Ms
Mills
submitted that in the circumstances, the decision of the trustees
falls to be reviewed and set aside, and should either be referred
back to them to make a further considered decision, or this court
could substitute its own decision for the decision of the body
corporate.
[14]
With regard to costs Ms
Mills
submitted that the first to fourth respondents should bear the costs
of the first application, which was issued on the 19
th
November, 2014. This is because from June 2014 the respondents
were being advised by attorneys who had told them that there
could
not be two governing bodies, but only one for the entire
development. Ms
Mills
submitted that the inaction of the trustees in this regard was
unreasonable, and the trustees did nothing for approximately seven
months, when a joinder application was brought by the Govenders, and
the newly constituted governing body was asked to respond
to the
application within 30 days. No response was received within the
30 days’ provided, and the Govenders had to
wait a further five
weeks after the joinder application until the 13
th
April 2015, when the decision was ultimately made. The approach
of the trustees is further contained in a letter dated the
9
th
February 2015 when they sought to deflect the Govenders’
application for a decision, by suggesting that the Govenders wait
until the new body corporate was regularised and the new rules
brought into affect. Ms
Mills
submitted that in the circumstances the trustees had left the matter
in abeyance for approximately ten months and they should pay
the
costs of the both applications.
[15]
Mr
Hoar
accepted that the 2011 ‘no pets policy’ adopted by the
then body corporate of phase two was never registered, and
accordingly does not feature in this application. He submitted
that the policy that pets would not be allowed was confirmed
at a
meeting of the body corporate on the 10
th
May 2014. The minutes of that meeting were an annexure in the
trustees’ answering affidavits and disclosed that the
meeting
decided, following upon a request by the Govenders, that no pets
should be allowed ‘as per conduct rules’.
The
meeting was made aware that the conduct rules were not registered,
and confirmed that the conduct rules which were given to
purchasers
of sections at the time they purchased them, reflected that no pets
would be allowed.
[16]
A dispute of fact arises in relation to the accuracy of these
minutes, and Ms
Mills
submitted that the members present at the body corporate meeting did
not really understand the problems facing them. In this
regard
the trustees and their attorneys had not disclosed that the trustees
were not properly authorised until the application
by the Govenders
was launched, and this is why the Govenders went ahead with the first
application. Ms
Mills
alluded to the fact that the trustees could have called a special
general meeting and changed special conduct rule one, but chose
not
to do so.
[17]
Mr
Hoar
pointed out that the minutes of the body corporate meeting reflected
the need for the trustees to start the process of amalgamating
the
two body corporates, and bring the scheme into compliance with the
Act. He submitted that the minutes reflected that
all those
present at the meeting agreed that no pets are allowed in phase two.
[18]
With regard to the decision by the trustees and the items as set out
above constituting their reasons, Mr
Hoar
submitted:
(a) The present matter
was distinguishable from the facts set out in
Laguna Ridge
,
because phase two had been pet-free since 2011.
(b) Buyers were attracted
to the sections in phase two because it was a pet-free zone.
(c) In order to arrive at
a decision whether to review the decision of the trustees, the court
should examine the whole decision
by the trustees, and consider the
fact that they were exercising their discretion. A further dispute of
fact arises concerning
the property adjoining the section which had
been purchased by the Govenders. Mr
Hoar
submitted that
in terms of the scheme, the property surrounding their section was
not an exclusive use area.
(d) With regard to the
nuisance aspects, this had not been addressed in any way by the
trustees. It was a fact of life that dogs
bark and parrots screech or
squawk, and they could constitute a nuisance, particularly when the
Govenders were absent from the
unit during the day. In addition, the
Govenders conceded that their dog does bark, just not excessively. It
was precisely this
nuisance aspect which the section owners in phase
two sought to avoid.
[19]
Mr
Hoar
submitted that in the circumstances it was necessary for the
Govenders to show gross unreasonableness on the part of the trustees,
and indicate either
mala
fides
,
ulterior motives or that the trustees did not apply their minds in
making the decision. He submitted that if I found that the
decision
of the trustees should be set aside, the matter should be referred
back to them for a final decision, because there was
not enough
information on the papers to enable me to make a considered
decision. He submitted that the trustees are far better
placed
than I am to make decisions with regard to the development.
[20]
Mr
Hoar
submitted that any adherence to a fixed principle must be unwarranted
before it can be considered grossly unreasonable. The overriding
consideration in favour of the decision of the trustees, was the
wishes of the section owners in phase two, who did not wish to
have
pets present there. Nothing put forward by the Govenders demonstrated
that their need to keep their pets was different from
the reasons
which any other section holder would have for keeping pets.
There were no extraordinary circumstances which warranted
the keeping
of pets in their case ie medical reasons, etc. In those circumstances
the unanimous will of the section owners of phase
two should prevail,
and the decision of the trustees be upheld.
[21]
Ms
Mills
submitted that the suggestion that the section owners in phase two
were unanimous in not wanting pets, was hearsay, and inadmissible.
She submitted that if that was the case, the trustees should have put
up affidavits by each section owner to indicate that they
did not
wish to have pets. It is, of course, significant, that Ms
Mills
was unable to point to any evidence that any individual owner of
section two wanted to have pets. No affidavits have been submitted
in
this regard by the Govenders. Ms
Mills
submitted in addition that there were no reasons put forward why the
section owners in phase two did not want to have pets on the
property.
[22]
In the decision of the trustees, there are only three reasons given
which are relevant to a consideration of whether pets should
be
kept:
(a) The long standing
principle that pets have not been permitted to be kept in phase two,
based on the will and decision of the
other section owners;
(b) The sections in phase
two differs significantly from those in phase one and were determined
as not being suitable for the keeping
of pets; and
(c) That the body
corporate was going to introduce new rules which would probably
preclude the keeping of pets in phase two.
What
then falls to be considered is whether any of these reasons are
rational and reasonable.
[23]
As the above three reasons were the only ones by which the trustees
were guided in reaching their decision, they undoubtedly
relied upon
the precedent which had been established of not allowing pets.
For the reasons set-out by McCall J at 520G-I
of
Laguna
Ridge
,
the refusal to grant permission in a particular case because of the
fear of creating a precedent is tantamount to a failure to
consider
and decide the application on its own merits. It is simply a
refusal to depart from the general policy of not granting
permission
for the keeping of pets. I agree with the approach of Ms
Mills
in this regard.
[24]
With regard to the history of the attitude of the section owners in
phase two, and the differences between phase two and phase
one, those
differences do not emerge from the decision, nor entirely from the
papers. The trustees have not explained in
their decision why
those differences would be applicable and the effect they would have
on the keeping of pets in phase two.
It would seem then, that
as with the nuisance element, the trustees simply failed to consider
this relevant factor.
[25]
As the remainder of their reasons were irrelevant to a consideration
of the application to keep pets, the trustees have simply
applied a
hard and fast rule which they clearly intend to implement in all
cases. Once the principle is regarded as a decisive
factor, as set
out by Human J in
Computer
Investors Group Ink and another v The Minister of Finance
1979 (1) SA 879
(T) then the trustees have not considered the matter,
but have prejudged it without having regard to its merit. The
trustees cannot
rely on a possible future decision to change the
current rule one to a ‘no pets’ rule. To do so is
illogical
because the current rule is different. It is noteworthy
that notwithstanding their intention to propose new rules, they have
not
as yet (3 years’ later) done so! In the premises the
decision of the trustees falls to be reviewed and set aside.
[26]
The next question to be decided is whether this court should, in
setting aside the decision of the trustees, substitute its
own
decision. I have considered the factors for so doing as set out
by McCall J in
Laguna
Ridge
at 523B-D. In the present circumstances the trustees did not in
any way consider the question of nuisance, which they should
have
done. In addition, not having viewed the parrot and the dog, I
am in no position to assess what possible nuisance they
could
constitute. Nor am I in any position to be able to assess what
conditions could or should be imposed on any grant of
permission to
keep pets, assuming that was the decision of the trustees. In
order to do so one would have to be familiar
with the lay-out of the
sections and the exclusive and the public use areas. I am not.
Accordingly, I am of the view that
the matter should be referred back
to the trustees for them to reconsider their decision, taking into
account all the relevant
factors, and for them to make a decision.
[27]
The question of costs is not straightforward. In the first
application the Govenders sued only four of the trustees,
and were
eventually compelled to join the correct trustees when the proper
body corporate was constituted. This may well
have been due to
the fact that the members of the body corporate mistakenly understood
the legal position, and believed that they
could constitute separate
body corporates for phase one and phase two. Whether they can,
or whether one body corporate can
make separate decisions for one
part of a development, is not before me. It seems, however, on
the papers that the Govenders
had no option but to bring the
application to compel the trustees to make the decision, which they
did. They are accordingly
entitled to their costs of the first
application.
[28]
The conduct of the Govenders has not been beyond reproach. I
say this because of the minutes of the meeting of the 10
th
May 2014 during which Mr Govender threatened legal action against the
body corporate and ‘threatened to bankrupt the body
corporate
if his wishes were not acceded to’. By their conduct, the
Govenders they have made it clear that had they
properly enquired
into the rules of the body corporate prior to purchasing their
section, instead of merely relying on the say
so of the seller (on
their own version, but which is disputed by the trustees), they would
have been alerted before purchasing
the section to the fact that no
pets were allowed. Given their attitude in remaining in
alternative premises until the matter
is resolved, it seems clear
that they would not have purchased the section had they known that
they would not be allowed to have
pets. Their failure to make what
was in the circumstances an eminently sensible enquiry - ie as to the
conduct rules of the development
- is partly to blame for the
necessity for legal action. These facts are insufficient to
deprive the Govenders of their costs.
[29]
In my view the trustees have been advised by legal representatives
almost throughout the dispute, and I do not believe that,
as lay
persons, they can be held to have been in breach of their fiduciary
duties to the body corporate, and be personally liable
for costs. The
Govenders have, however, been successful in having the decision of
the trustees set aside.
[30]
I was also initially requested to decide the costs of the
arbitration, but this was not pressed in argument by Ms
Mills
for the
Govenders. I do not believe, in any case, that I could have
been able to make such a decision.
[31]
In all the circumstances I make the following order:
(a) The decision of the
respondents, which was communicated in writing to the applicants on
the 13
th
April 2015 refusing their consent for the
applicants to house their pets in section 23 of the RiverClub Mews
Sectional Title Scheme,
is reviewed and set aside.
(b) The matter is
referred back to the respondents to re-consider the application in
all its relevant aspects and to make a decision,
such decision to be
made within 30 days of the date of this order.
(c) The respondents, in
their capacity as trustees of the body corporate are directed to pay
the applicants costs both in case number
13422/2014 and in case
number 5146/2016.
____________________
Graham
Lopes J
Dates
of hearing: 8
th
March 2018
Date
of Judgment: 26
th
March 2018
Counsel
for the Applicants: Ms L M
Mills
(instructed by Lomas-Walker Attorneys)
Counsel
for the Respondents: Mr S
Hoar
(instructed by Northmore
Montague Attorneys)