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[2017] ZAFSHC 173
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Goldex 16 (Pty) Ltd v Bpdy Corporate of Waterford Golf and River Estate SS 139/2006 and Another (3979/2016) [2017] ZAFSHC 173 (13 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
Of
Interest to other Judges: YES
Circulate
to Magistrates: NO
Case
number: 3979/2016
In
the matter between:
GOLDEX
16 (PTY)
LTD
Applicant
and
THE
BODY CORPORATE OF WATERFORD
GOLF
& RIVER ESTATE SS
139/2006
1
st
Respondent
MOGWELE
TRADING 291 (PTY) LTD t/a
CORAL
PROPERTY MANAGEMENTSOLUTIONS
2
nd
Respondent
HEARD
ON:
29
JUNE 2017
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
13
OCTOBER 2017
I
INTRODUCTION
[1]
The original owner and developer of immovable property situated in
the district of Parys, Free State Province on the one hand
and the
Body Corporate established in respect of the sectional title scheme
registered with the Registrar of Deeds on such immovable
property and
the managing agent of the Body Corporate on the other hand, are at
loggerheads. The correct interpretation of certain
sections of the
Sectional Titles Act, 95 of 1986 (“the
Sectional Titles Act&rdquo
;)
and the Sectional Titles Schemes Management Act, 8 of 2011 (“the
Management Act”) with specific reference to the
obligation of a
holder/owner of a Registered Real Right of Extension to pay levies to
the Body Corporate
in
casu
is
paramount to the main dispute. In addition to a statutory
obligation to pay levies, the Body Corporate relies on an agreement
between it and the developer. Other issues must be resolved as
well as will appear soon.
II
THE PARTIES
[2]
Applicant is Goldex 16 (Pty) Ltd, (“Goldex”) a private
company with registered address in Johannesburg, it being
the
original owner of immovable property described as Subdivision 9 (of
4) of the farm Luciana 214, Free State Province, measuring
23, 0869
hectares. It is the developer of the Waterford Sectional Title
Scheme (“the Scheme”) which Scheme is
operated on the
aforesaid immovable property and
inter alia
also still the
registered owner of a Real Right of Extension in the Scheme in
respect of 18 vacant stands clearly demarcated on
the Certificate of
Real Right of Extension issued to it. Adv GF Porteous appeared
before me on behalf of Goldex, duly instructed
by Jordaan and Wolberg
Attorneys, c/o
Rossouws Attorneys,
Bloemfontein.
[3]
First respondent is the Body Corporate
of
Waterford Golf and River Estate
(“the
Body Corporate”), duly established in terms of
s 36(1)
of the
Sectional Titles Act.
[4
]
Second respondent is Mogwele Trading 291 (Pty) Ltd, t/a Coral
Property Management Solutions (“the Managing Agent”).
[5]
The Body Corporate and the Managing Agent were represented by Adv P
Strathern SC, instructed by Brian Kahn Inc, c/o Claud Reid
Inc,
Bloemfontein.
III
THE RELIEF CLAIMED
[6]
I have to adjudicate a main application by Goldex as well as a
counter-application by the Body Corporate. In order to
put the
reader in the picture, I deem it necessary to quote the relief sought
fully. It needs to be pointed out that Goldex
initially relied
on
s 37(1)(bA)
of the
Sectional Titles Act for
the declaratory relief
sought, but eventually, and after having been alerted thereto by the
Body Corporate in its answering affidavit,
requested an amendment in
order to rely on s 3(1)(d) of the Management Act which Act came into
operation on 7 October 2016.
There was no objection to the
amendment and all relevant issues have been canvassed fully. The
amendment is granted accordingly.
[7]
In the amended notice of motion Goldex seeks the following relief:
“
1.
declaring that no levies or other amounts whatsoever are due and
payable by the Applicant to the First
Respondent in respect of Real
Rights of Extension Nos
[the
numbers are not repeated]
in
Waterford Golf and River Estate SS 139/2006 (“the Scheme”),
save and except for such amounts as envisaged in section
3(1)(d) of
the Sectional Title Schemes Management Act 8 of 2011 (“the
STSMA”) which the First Respondent has necessarily
expended in
respect of the actual part or parts of the common property of the
Scheme reserved in terms of the abovementioned Real
Rights of
Extension and which the First Respondent may, from time to time, seek
to recover from the Applicant in terms of section
3(1)(d) of the
STSMA;
2.
ordering and directing the First Respondent to furnish to the
Applicant within 10 (ten) days of
this order, the following detailed
statements;
2.1
in respect of each of Real Right of Extension No’s
[again
not repeated]
statements
reflecting only such amounts as may be due and payable by the
Applicant to the First Respondent by virtue of the provisions
of
section 3(1)(d) of the STSMA;
2.2
in
respect of Real Right of Extension No RR82 in the Scheme, a statement
reflecting only such amounts as may be due and payable
by the
Applicant to the First Respondent by virtue of the provisions of
section 3(1)(d) of the STSMA and of
section 25(5A)(b)
of the
Sectional Titles Act 95 of 1986
as amended (“the STA”)
read with
section 37(1)(b)
of the STSMA
(sic)
;
3.
ordering
and directing the First Respondent, upon receipt of written request
from Knowles Husain Lindsay Inc or such other conveyancers
as the
Applicant may direct and against payment by the Applicant of the
amounts reflected as due in the relevant statement of account
furnished in terms of paragraph 1 above, to furnish a certificate as
envisaged in
section 15B(3)(a)(i)(aa)
and/or
section 25(4A)(a)
of the
STA in respect of any such Real Right of Extension certifying that
all monies due to the First Respondent by the Applicant
have been
paid;
4.
ordering
and directing the First Respondent to furnish, on the last day of the
month following the month during which this order
is granted and on
the last day of every month thereafter, a further detailed statement
of account as described in paragraph 1 above,
in respect of each Real
Right of Extension which remains registered in the name of the
Applicant;
5.
ordering
and directing the First Respondent, upon receipt of written request
from Knowles Husain Lindsay Inc or such other conveyancers
as the
Applicant may direct and against payment by the Applicant of the
amounts reflected as due in the most recent statement of
account
issued in terms of paragraph 1 or 3 above, to furnish a certificate
as envisaged in
section 15B(3)(a)(i)(aa)
and/or
section 25(4A)(a)
of
the STA in respect of any such Real Right of Extension certifying
that all monies due to the First Respondent by the Applicant
have
been paid;
6.
ordering,
directing and authorising the Sheriff of the above Honourable Court
in the event that the First Respondent fails to comply
with any of
the orders contained in paragraphs 1 to 4 above, and at the request
of Knowles Husain Lindsay Inc or such other conveyancers
as the
Applicant may direct and against payment by the Applicant of the
amounts reflected as due in the most recent statement of
account
issued in terms of paragraphs 1 to 3 above, to furnish on the First
Respondent’s behalf, a certificate as envisaged
in
section
15B(3)(a)(i)(aa)
and/or
section 25(4A)(a)
of the STA in respect of
any such Real Right of Extension certifying that all monies due to
the First Respondent by the Applicant
have been paid;
7.
………
8.
ordering
and directing such of the Respondents who oppose this
application to pay the costs hereof, jointly and severally,
the one
to pay the other to be absolved.”
[8]
The following relief is sought by first respondent in the
counter-application:
“
1.
Ordering and directing the applicant within thirty days of the date
of granting of an order herein, to
sign all necessary documents, make
all necessary applications and in general do all things necessary so
as to bring about and cause
the registration of praedial servitudes
in favour of the applicant, over the buildings, and/or services which
are situated on adjacent
agricultural land which is owned by the
applicant and held by it under deed of transport T7589/2004 and which
consist of the following:
1.1
The estate manager’s house;
1.2
The ‘pump house’ which houses the water reticulation
system which supplies potable
water to the scheme and the individual
units;
1.3
The water purification plant and water storage tanks;
1.4
The sewerage works of the scheme;
1.5
All other necessary services and accessories which are required for
the security and running
of the scheme;
1.6
The eighth and ninth ‘holes’ of the ‘Classic Par 3
nine hole Golf Course’;
1.7
Paths and means of access to the boathouses.
2.
Directing the applicant to transfer to the first respondent, Units 1
and 2 of the scheme known
as The Body Corporate of Waterford Golf &
River Estate, with scheme registration number
SS139/2006
, which are
presently held and owned by the applicant and which consist of
2.1
A gate house; and
2.2
Ablution facilities.
3.
Granting judgment against the applicant in favour of the respondent
for
3.1
Payment of the sum of R2 474 652.69;
3.2
interest thereon at 10.5%
per
annum
a
tempore morae
to
date of final payment.
4.
Ordering the applicant to pay the first respondent’s costs of
the counter
application on the scale as between attorney and client,
including the costs occasion by the employment of senior counsel.
5.
Granting the first respondent further and alternative relief.”
IV
SUMMARY OF THE DISPUTES BETWEEN THE PARTIES
[9]
The main issue to be considered is whether Goldex as the owner of a
Real Right of Extension in the Scheme is statutory obliged
to
contribute to the Body Corporate’s levy fund in accordance with
the provisions of the
Sectional Titles Act and
the Management Act.
In addition, and if it is found that Goldex has no such statutory
obligation towards the Body Corporate,
the further matter to be
considered is whether Goldex is in any event entitled to a
declaratory order, or whether it is contractually
bound to settle the
levies, special levies and penalties claimed by the Body Corporate.
[10]
The other issues,
i.e
the Body Corporate’s right to claim transfer of Units 1 and 2
in the Scheme and registration of certain praedial servitudes,
as
well as its monetary claim in respect of levies allegedly due and
payable by Goldex, will also be considered in due course.
[11]
The parties have different views on the main issue (as is the case in
respect of the others matters). It is for this
court to decide
in respect of the main issue whether Goldex in its capacity as owner
of a registered Real Right of Extension in
the Scheme is liable for
payment of levies charged by the Body Corporate. Goldex denies
liability, save in respect of limited
obligations as contained in s
3(1)(d) of the Management Act, whilst the Body Corporate insists that
Goldex is statutory liable
for levies charged against it as if it was
an owner in the Scheme and member of the Body Corporate,
alternatively and/or in addition,
in that it bound itself
contractually to pay levies as if it were the owner of sections in
the Scheme and member of the Body Corporate
as defined in the two
Acts.
[12]
Before I proceed to deal with certain principles applicable to
sectional title schemes, it is necessary to emphasise that Goldex
decided to develop the property in a totally different manner than
the accustomed way of developing sectional title schemes,
i.e.
either to develop the scheme as a whole, or in phases. Goldex
had in mind to establish a golf and river estate providing
for 48
residential units to be built alongside a mashie golf course and with
access to the river for boating activities.
Initially it merely
erected two buildings, to wit a gate house and ablution facilities,
being units 1 and 2 on the sectional plan
registered in 2006.
Thereafter the sectional plan was amended and/or extended insofar as
provision was made for the reservation
of Goldex as developer’s
right to extend in terms of
s 25
of the
Sectional Titles Act. A
Certificate of Real Right of Extension in favour of Goldex in respect
of 48 separate real rights of extension on separate demarcated
areas
of the common property was registered. The idea was to sell the
various real rights of extension (loosely referred
to as vacant
stands) set out in its Certificate of Real Right of Extension to
individual purchasers who would then for their own
account erect
houses on the particular demarcated areas. Therefore, instead
of Goldex building 48 houses in the Scheme at
its costs and then sell
and transfer the sections to individual purchasers, it decided to
sell “vacant stands” set
out in the Certificate of Real
Right of Extension in terms of s 25 of the Sectional Title Act to
individuals, and by doing so,
shifting the financial risk to the
purchasers.
[13]
The downturn in the local economy following the worldwide financial
crisis in 2008 was probably not expected and furthermore,
it was
probably not anticipated that purchasers of real rights of extension
would find it much more difficult to obtain finance
than purchasers
of completed houses. Consequently, by the time Goldex brought
its application, it was still the registered
owner of a Real Right of
Extension in respect of 18 vacant stands as set out in its
Certificate of Real Right of Extension for
which it could not find
buyers, although a period of nine years has lapsed since opening of
the sectional title register.
[14]
The manner in which Goldex decided to develop ensured that it as the
owner of the Real Right of Extension, or any of its subsequent
purchasers, did not obtain ownership of a portion of the common
property in respect of which a Real Right of Extension was reserved.
A person/entity only acquires ownership as defined in the relevant
two Acts upon the exercise of a Real Right of Extension through
the
construction of a dwelling on the demarcated area of the common
property for which the real right was reserved and the subsequent
registration of an amendment of the sectional plan together with the
inclusion of the unit in the sectional title register of the
Scheme.
At this stage the former holder/owner of the Real Right of Extension
becomes an owner for purposes of the two Acts
insofar as he/she/it
acquires an undivided share in the common property in accordance with
the participation quota allocated to
the newly created section.
V
SECTIONAL TITLE OWNERSHIP IN PERSPECTIVE
[15]
Sectional title ownership is still relatively new in South Africa.
In 1973 new concepts in respect of fragmented ownership
of immovable
property were introduced in this country when the Sectional Titles
Act, 66 of 1971 was put into operation. This
Act was repealed
by the present
Sectional Titles Act, 95 of 1986
, but the conceptual
framework for sectional titles was maintained.
[16]
According to GJ Pienaar,
Sectional
Titles and other fragmented property schemes
,
2010 ed at 58 the conceptual framework for sectional titles includes:
1.
the possibility of dividing a building into sections which sections
can be the objects of individual
ownership
(s 2(a)
& (b);
1
.25cm; margin-bottom: 0cm; line-height: 200%">
2.
the creation of the concept “common property”, which
common property is being held in undivided
bound common ownership
shares by all owners of sections (ss 2(a), 2(c) and 16(1));
3.
the creation of a new form of immovable property, a sectional title
unit, comprising a section of the
building and an undivided share in
the common property
(s 1
- “unit”) and
s 3(4)
;
1
.25cm; margin-bottom: 0cm; line-height: 200%">
4. the
creation of a new form of ownership, namely individual ownership of a
section combined with the undivided
bound common ownership share in
the common property
(s 2(b)
and (c);
1
.25cm; margin-bottom: 0cm; line-height: 200%">
5.
the participation quota of each sectional owner, which determines
inter alia
the extent of the undivided share of such owner in
the common property
(s 1
- “participation quota”);
6.
the body corporate of the sectional title scheme of which all the
sectional title owners are members
(s 36(1)).
[17]
A sectional title unit is regarded as immovable property, it being
defined as a section together with its undivided share in
common
property apportioned to that section in accordance with the quota of
the section. The unit is a composite immovable thing
and an
independent legal object. See
inter
alia
s
3(4)
of the
Sectional Titles Act. A
unit has two components,
namely a section of the building(s) –
e.g
a flat or office in a building or a loose-standing building forming
part of the sectional title scheme - and an undivided share
in the
common property in accordance with the participation quota.
[18]
It is possible to develop a sectional title scheme in phases by
extension of the scheme which may be exercised by the developer
(or
its successor in title) or by the body corporate. Extension of
the section title scheme is provided for in
s 25
of the
Sectional
Titles Act. There
is good reason to allow for extensions of a
sectional title scheme in that the initial capital outlay of the
developer can be kept
at an affordable level. In doing so, cash
flow problems can be minimized by using the profit of the initial
phase to develop
further phases. A developer and owner of land
may for example decide to initially build only ten town houses as
part of the
initial phase or phase 1, although the land provides for
sufficient space to build another ten town houses. Instead of
the
developer being forced to build twenty town houses simultaneously
at huge capital expense, it could develop phase 1 first, sell
the ten
town houses and use the profit to continue with construction of the
next ten town houses in the second phase. The
Sectional Titles
Act provides
for sufficient safeguards to protect the rights of the
owners of sections in phase 1, but it is not required to deal with
these
aspects further for purposes of this judgment.
VI
AUTHORITIES REGARDING INTERPRETATION OF LEGISLATION AND OTHER
DOCUMENTS
[19]
In an oft-quoted judgment Wallis JA summarised the current state of
our law regarding the interpretation of documents, including
contracts, as follows in
Natal
Joint Municipal and Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at para [18]:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into
existence. Whatever the nature of the document, 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.”
Thus,
the matter must be approached holistically and context and language
must be considered together with neither predominating
over the
other.
See
also
Bothma-Batho
Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) at paras [10]-[12].
[20]
In
BP
Southern Africa (Pty) Ltd v Mahmood Investments (Pty) Ltd
[2010]
2 All SA 295
(SCA) Lewis JA stated the following in a unanimous
judgment at para [11]:
“
It
is settled law that the contractual provision must be interpreted in
its context, having regard to the relevant circumstances
known to the
parties at the time of entering into the contract …. It is
also clear that the position must be given a commercially
sensible
meaning …”
In
Novartis
v Maphil
[2015]
ZASCA 111
, 3 September 2015, the same learned judge of appeal stated
the following at para [28]:
“
[28]
The passage cited from the judgment of Wallis JA in
Endumeni
summarizes the state of the law as it was in 2012. This court did not
change the law, and it certainly did not introduce an objective
approach in the sense argued by Novartis, which was to have regard
only to the words on the paper. That much was made clear in
a
subsequent judgment of Wallis JA in
Bothma-Botha
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013] ZASCA 176
;
2014 (2) SA 494
(SCA), paras 10 to 12 and in
North
East Finance (Pty) Ltd v Standard Bank of South Africa Ltd
[2013] ZASCA 76
;
2013 (5) SA 1
(SCA) paras 24 and 25.
A
court must examine all the facts - the context - in order to
determine what the parties intended. And it must do that whether
or
not the words of the contract are ambiguous or lack clarity. Words
without context mean nothing.”
(emphasis
added)
VII
GOLDEX’ STATUTORY OBLIGATION TO PAY LEVIES
[21]
Bearing in mind the authorities in respect of the interpretation of
statutes, I shall now consider the relevant provisions
of the two
Acts and the arguments of counsel in order to arrive at my conclusion
in respect of this aspect of the case. Counsel
could not refer
me to any authorities directly in point and I was also unsuccessful
in this regard. I remind the reader that
I have already
referred to some aspects of sectional title ownership
supra
and
shall not necessarily repeat any thereof. It should also be mentioned
that I do not intend to refer to
s 37
of the
Sectional Titles Act
which
was initially amended and thereafter repealed on 7 October
2016. My focus will be (as was the case with counsel) on the
new
Act, the Management Act and in particular s 3 thereof, read with
other provisions in both Acts.
[22]
Section 2(1) of the Management Act stipulates that bodies corporate
are created as follows:
“
(1) With effect
from the date on which
any person other than the developer becomes the owner of a unit
in a scheme, there shall be deemed to
be
established
for that scheme
a
body corporate
of which
the
developer and such other person are members, and any person who
thereafter becomes an owner of a unit in that scheme is a member
of
that body corporate.
”
(emphasis added)
[23]
Any doubt about the status of a developer has been put to bed by s
2(2) of the Management Act which reads as follows:
“
(2) The
developer
ceases to be a member of the body corporate
when he or she ceases to have a share in the common property as
contemplated in
s 34(2)
of the
Sectional Titles Act.”
(emphasis
added)
[24]
Section 34(2)
of the
Sectional Titles Act reads
as follows:
“
(2) When the
ownership
in every section is held by any person
or persons
other
than the developer,
the
developer
shall
,
subject to the provisions of
section 25(1)
cease to have a share or
interest in the common property.”
(emphasis
added)
The
language that the legislature adopted is clear and unequivocal: a
developer ceases to be a member of the body corporate when
it ceases
to own any section in the scheme and any share in the common
property. This occurs when it has transferred all
the units in
the scheme. As mentioned
supra
,
a unit comprises a section together with its undivided share in the
common property apportioned to that section in accordance
with the
participation quota of the section.
[25]
It is necessary to understand the concept of “participation
quota” and for that reason I quote from
s 32(1)
of the
Sectional Titles Act:
“
Subject
to the
provisions of
section 48
, in the case of a scheme for residential
purposes only as defined in any applicable operative town planning
scheme, statutory plan
or conditions subject to which a development
was approved in terms of any law
the
participation quota of a section shall be a percentage expressed to
four decimal places, and arrived at by dividing the floor
area,
correct to the nearest square metre, of the section by the floor
area, correct to the nearest square metre, of all the sections
in the
building/buildings comprised in this scheme.
”
(emphasis
added)
[26]
Section 11(1) of the Management Act reads as follows:
“
(1) Subject to
subsection (2) the quota of a section must determine -
a.
the value
of the vote of the
owner
of the section in any case where the vote is to be reckoned in value;
b.
the
undivided share in the common property of the
owner
of the section;
c.
subject to
section 3(1)(b), the
proportion
in which the
owner
of the section must make contributions for the purpose of section
3(1)(a)
or may in terms of section 14(1) be held liable for the payment of a
judgment debt of the body corporate of which he or she is
a member.”
(
emphasis
added)
It
is important to acknowledge that membership in a body corporate
provides members with rights: to vote; but also obligations:
to pay
levies. The participation quota plays a role in each case.
A simple example may enlighten the reader. If a sectional
title
scheme consists of ten sections which are exactly the same size –
100 square metres – the participation quota
percentage of each
section is 10.0000 and the aggregate of all quotas is 100.0000.
Refer also to annexure FA2 for the calculations
in respect of units 1
and 2
in
casu.
In
my example the owner of each section will have equal voting power and
each will have to contribute equally to the levy fund of
their body
corporate. There is no room to claim anything else from a
person who does not own a section, save for the provision
in s
3(1)(d) of the Management Act. Also, a non-owner does not have any
voting rights.
[27]
Section 3(1)(a) - (f) of the Management Act reads as follows,
paraphrased to some extent:
“
3
Functions of bodies corporate
(1)
A body
corporate must perform the functions entrusted to it by or under this
Act or the rules, and such functions include –
(a)
to
establish and maintain an administrative fund which is reasonably
sufficient to cover the estimated annual operating costs –
(i)……
(ii)……
(iii)…..
(iv)…….
(b)
To
establish and maintain a reserve fund in such amounts as are
reasonably sufficient to cover the cost of future maintenance and
repair of common property……
(c)
To require
the
owners
,
whenever necessary, to make contributions to such funds: Provided
that the body corporate must require the
owners
of sections
entitled to the right to the exclusive use of a part or parts of the
common property
,
…., to make such additional contribution to the funds as is
estimated necessary to defray the costs of rates and taxes,
insurance
and maintenance in respect of any such part or parts, including the
provision of electricity and water, unless in terms
of the rules the
owners
concerned
are responsible for such costs,;
(d)
To require
from a
developer
who is
entitled
to extend the scheme
in terms of a right reserved in
section 25(1)
of the
Sectional Titles Act, to
make such
reasonable
additional contribution
to the funds as may be necessary to defray the cost of rates and
taxes, insurance and maintenance of the part or parts of the common
property
affected
by the reservation
,
including a contribution of electricity and water and other expenses
and costs in respect of and attributable to the relevant
part or
parts;
(e)
To
determine the amounts to be raised for the purposes of paragraphs
(a), (b)
and (c)
;
(f)
To raise
the amounts so determined by
levying
contributions on the
owners
in proportion to the quotas of their respective sections
;”
(emphasis
added)
[28]
Mr Strathern submitted that the word “additional”
indicates that the contribution contemplated in s 3(1)(d) of
the
Management Act is in addition to or supplementary to an already
existing contribution payable by Goldex
in casu
, or for the
argument, any other developer in similar circumstances. So
interpreted, a sensible grammatical interpretation
will be achieved.
I do not agree. In my view the contribution to be made by the
owner of a Real Right of Extension
to the levy fund is merely in
addition to the contributions to be made by the owners of sections.
As stated
supra,
the owner of a Real Right of Extension is not
the owner of a section in the sectional titles scheme and the full
amounts envisaged
in s 3(1)(a) and (b) are to be covered by the
owners of sections in accordance with the participation quotas of the
respective
sections.
[29]
Mr Strathern also submitted that Goldex’ argument that it is
liable only for the actual costs related to the undeveloped
stands is
irrational and incapable of reconciliation with the way in which
schemes and developments come into being and in which
subsequent
purchasers of Real Rights of Extension become owners or subsequent
developers. As mentioned above, the
modus
operandi
adopted by Goldex in respect of this Scheme is the exception rather
than the rule. Instead of what developers normally do,
Goldex
chose not to prepare a sectional plan for 48 sections, to construct
48 houses and thereafter sell the sections to individual
purchasers.
In the strange scenario in casu, each purchaser of a Real Right of
Extension becomes a developer in the sense
that he/she/it is expected
to construct his/her/its own house on the demarcated area of the
common property, whereafter amendments
to the sectional plan are
endorsed providing for the new sections. This is apparent from
the sectional plan, Annexure FA3
to the founding affidavit, and the
various endorsements thereto. Only sections 1 and 2 (the gate
house and ablution facilities)
appear on the original sectional plan,
but the plan has been amended over time to include several other
sections. I accept
that the sectional title register was also
extended to include the further sections and exclusive use areas set
out in the endorsements
referred to and that the relevant
Certificates of Registered Sectional Title have been issued in order
to comply with
s 25(11)
and (12) of the
Sectional Titles Act.
[30
]
I am in agreement with Mr Porteous’ able argument.
Clearly the development
in
casu
is
an exception and not the norm and something the legislature never
considered when the Acts were drafted. If
s 34
of the
Sectional
Titles Act is
read with
s 25
of that Act and s 3(1) of the Management
Act, and bearing in mind the context within which the Acts were
promulgated and the purpose
of the legislation, I am satisfied that
the legislature did not foresee or cater for the exception with which
we are confronted
in
casu.
The owner of a Real Right of Extension in terms of s 25 or its
successor in title can never be regarded as an owner of a
section.
Therefore the full amount required for the funds established in terms
of s 3(1)(a) and (b) of the Management Act
needs to be contributed by
the owners of sections and no one else. I also agree with Mr
Porteous that in terms of s 3(1)(d)
the Body Corporate is only
entitled to recover from Goldex actual amounts expended on the actual
part of the common property reserved
in terms of the Real Right of
Extension. If the legislature intended anyone other than the
owners of sections to contribute
to the funds established in terms of
s 3(1)(a) and (b), it would have stated so in clear and unequivocal
terms. On a plain
reading of s 3(1), in the context of s 32(1)
of the Sectional Title Act which I quoted
supra
as well
as other provisions, the owners of sections are liable for the costs
contemplated in s 3(1)(a) and (b) and the developer
(and owner of a
Real Right of Extension in terms of s 25) and its successors in
title, are liable
“
to
make such reasonable additional contribution to the funds as may be
necessary to defray the cost of rates and taxes, insurance
and
maintenance of the
part
or parts of the common property affected by the reservation,
including a contribution to the provision of electricity and water
and other expenses and costs in respect of and attributable to the
relevant part or parts
.”
(s 3(1)(d) - emphasis
added)
[31]
It is important to consider the use of the words
“
owners”
in s 3(1)(c) and s
3(1)(f) on the one hand and
“
developer
who is entitled to extend the scheme”
in
s 3(1)(d) on the other hand. The distinction makes it
abundantly clear that Goldex’ situation as developer entitled
to extend the scheme cannot be equated to that of owners of
sections. The clear and unambiguous language of the legislature
suggests that the developer cannot be held responsible for levies
payable as provided for in s 3(1)(a) and (b), but only for such
reasonable additional contributions mentioned in s 3(1)(d).
[32]
I agree with Mr Porteous that a Real Right of Extension is a
sui
generis
limited
statutory right. It is deemed to be a right to immovable
property which may be mortgaged and transferred by registration
of a
notarial deed of cession in respect of the whole, a portion or a
share in such right. In the case of cession of a portion,
the
portion must be identified to the satisfaction of the Surveyor
General. Refer to
s 25(4)
of the
Sectional Titles Act.
There
can be no doubt that this is what occurred
in
casu
.
I refer to annexure FA5 of the founding affidavit. Neither
Goldex as owner of the Real Right of Extension, nor any
subsequent
purchaser of a portion of such right becomes owner of the portion of
the common property in respect of which such right
was reserved and
ownership of a section will only be obtained upon completion of the
dwelling to be constructed. Only hereafter
will levies become
payable to the Body Corporate as provided for in
s 25(5A)(a)
and (b)
of the
Sectional Titles Act which
I quote:
“
(5A) (a)
If
the right reserved
in terms of subsection (1)
is
exercised
,
the
developer
or his or her successor in title
shall
immediately after completion of the relevant unit apply for the
registration
of the relevant plan of extension and the inclusion of such unit in
the relevant sectional title register;
(b) If the developer or
his or her successor in title fails to take such steps and fails to
register the relevant plan of extension
within 90 days of completion
for occupation of the unit,
the
developer or his or her successor in title shall be liable to the
body corporate for the amounts payable in terms of section
3(1)(b)
of the Sectional Titles Schemes Management Act
as
if the unit has been included in the relevant sectional title
register on the date of completion
.
(emphasis
added)
This
may strengthen the argument that no levies are payable by Goldex as
the developer until such time as dwellings have been constructed
in
the exercise of the Real Right of Extension. I must note that
the reference in s 25(5A)(b) is to s 3(1)(b) (the reserve
fund) only
and not to s 3(1)(a) (the administrative fund which is the general
fund utilised by bodies corporate to pay running
expenses.)
Whether this is an oversight or not, is not clear. In my view
the subsection as it presently reads cannot
be used to support the
Body Corporate’s submissions in the light of all other aspects
raised herein. Mr Strathern’s
argument contained in
paragraph 29.1 of his heads of argument (which he amended during oral
argument) that both the
Sectional Titles Act and
the Management Act
“
recognise
that a developer is the owner of a section shown on a Sectional Title
Scheme diagram until sold”
is
rejected. He could not refer me to any particular section(s) in
either Act in support of this submission.
[33]
It is necessary to consider the following further issues as well,
bearing in mind the authorities referred to. The Body
Corporate
was established when the Judin Children’s Trust became the
registered owner of a unit. I refer to
s 36(1)
of the
Sectional
Titles Act. This
could only occur after exercising its Real
Right of Extension and the construction of a dwelling on the
appropriate demarcated
area, whereafter the sectional plan was duly
amended and the sectional title register amended to include the
particular unit.
Refer to
s 25(5A)(a)
of the
Sectional Titles Act. From
then on the Judin Children’s
Trust became liable for the payment of levies in terms of s 3(1)(a)
and (b) of the Management
Act.
[34]
Goldex knew that the Scheme would collapse if it did not pay any
levies or if no provision was made for the purchasers of Real
Rights
of Extension to pay levies
.
In fact, nobody would be interested in becoming involved in the
Scheme. Therefore and insofar as Goldex had a significant
interest in the success of the Scheme, it provided in its deeds of
sale with purchasers of Real Rights of Extension that they shall
pay
levies as if they were the owners of sections.
[35]
Goldex’ deponent, Mr Hulme stated that it made
ex
gratia
payments to the Body Corporate to ensure that it operated
successfully. No doubt, Goldex was fully aware of the fact that
it could not be expected of the Judin Children’s Trust to
settle the huge monthly bill of a high maintenance development
such
as the Waterford Scheme, consisting of a mashie golf course, river
frontage lawns and jetties to name a few facilities, although
it is
precisely Goldex’ argument that the Judin Children’s
Trust became legally responsible for virtually all the expenses.
Obviously this liability decreased as new owners came on the scene.
It is apparent from the first budget prepared on behalf
of the Body
Corporate (when the Judin Children’s Trust was the only owner)
that it budgeted for annual expenses of R1 698 800.00.
Goldex’ argument that it made
ex
gratia
payments
to ensure the smooth running of the Scheme and that it never
contracted to pay levies to the Body Corporate will be considered
infra
,
bearing in mind all relevant facts, including the minutes of the
various meetings placed before the court.
[36]
Mr Strathern submitted that a further unjust consequence is the fact
that Goldex as developer can, on its version, enjoy all
the benefits
of the Scheme at no or limited costs whilst being subsidised by the
owners and members of the Body Corporate.
This, he submitted,
the legislature could never have intended. He relied upon the
following judgments, to wit
Heritage
Hill Home Owners’ Association v Heritage Hill Devco
(Pty) Ltd
2013 (3) SA 447
(GNP), (“
Heritage”
)
a judgment by Kollapen J, and Heritage Hill Devco (Pty) Ltd v
Heritage
Hill Home Owners’ Association
2016 (2) SA 387
(GP), a judgment by the full bench on appeal from the
judgment of Kollapen J, as well as
Body
Corporate of Fish Eagle v Group Twelve Investments (Pty) Ltd
2003 (5) SA 414
(W) (“
Fish
Eagle”
).
[37]
I am of the view that the decisions are clearly distinguishable.
Heritage
Hill
had
to do with a developer of a township who refused to pay levies to the
homeowners’ association on the ground that it was
not the owner
of any individual erven within the township, but only of an undivided
remainder. The
Deeds Registries Act, 47 of 1937
applied,
defining an “erf” as “every piece of land
registered as an erf … and includes any defined portion,
not
intended to be a public place, of a piece of land laid out as a
township.” In
Heritage
the
farmland was converted into a township and all erven were depicted on
a general plan in order for the township to be proclaimed.
The
individual unsold erven belonging to the developer had an identity
similar and comparable to erven already sold and transferred.
The homeowners’ association was formed to create a structure
for the benefit of all owners of land in the township, all of
whom
automatically became members of the association on account of their
ownership. The articles of association specified
that levies
were payable by property owners and not only homeowners. All
members could participate in decision-making processes.
The developer was clearly the registered owner of the unsold erven
within the context of the particular articles of association.
As indicated, Goldex is not an owner of any sections in the Scheme,
bearing in mind
inter
alia
the
provisions of
s 34(2)
of the
Sectional Titles Act.
[38
]
Fish
Eagle
is equally distinguishable. The court found that no member of a
body corporate is entitled to dispute liability for the payment
of
levies on the ground that he/she thinks the levies to be excessive.
I have shown that Goldex is not a member of
the Body Corporate.
[39]
In conclusion, in respect of this part of the enquiry, I find that
Goldex in its capacity as the owner of a Real Right of Extension
in
the Scheme is not an owner for purposes of the
Sectional Titles Act
and
the Management Act and therefore not statutory liable for payment
of levies as claimed by the Body Corporate. The only possible
liability would be for such contributions specifically stipulated in
s 3(1)(d), but that is not what the Body Corporate claims
from
Goldex. However, this conclusion does not mean that Goldex is
entitled to the relief claimed. I considered whether
it would
be possible to take into consideration equity and fairness in
interpreting the sections of the two Acts in order to prevent
inequitable and unfair consequences. I am reminded by the
dictum
of Wallis JA in
Endumeni
at paragraph [26]:
“
An
interpretation will not be given that leads to impractical,
unbusinesslike or oppressive consequences or that will stultify the
broader operation of the legislation or contract under
consideration.”
I
cannot see how I could possibly read into any sections of the two
Acts words and/or excise words from sections in order to reconcile
the legislation with the approach of the Body Corporate. It is
the legislature’s task to draft legislation.
[40]
The next issue to consider is Goldex’ possible liability based
on contract: its contractual undertakings to pay levies
to the Body
Corporate in respect of all so-called vacant stands, the particular
areas of the common property earmarked for development.
I refer
to annexure FA5 of the founding affidavit, to wit the amendment of
the sectional plan to provide for real rights of extension.
VIII
THE BODY CORPORATE’S RELIANCE ON A CONTRACTUAL UNDERTAKING TO
PAY LEVIES
[41]
The main application by Goldex, being the applicant seeking a
declaratory order and thus final relief, must be adjudicated
on the
basis of the principles set out in
Plascon-Evans Paints.
The
Body Corporate denies that Goldex made
ex gratia
payments
towards the fund established by the Body Corporate for the running of
the Scheme or that some payments were made under
protest as alleged.
An order can only be granted on the second leg of the enquiry into
the main application if the facts
stated by the Body Corporate
together with the admitted facts in Goldex’ affidavits justify
such order. Obviously,
if no real, genuine and
bona fide
dispute has been raised, or if the Body Corporate’s
allegations or denials are far-fetched or untenable, the court may be
justified in rejecting them if it is otherwise satisfied with the
inherent credibility of Goldex’ version.
[42]
The Body Corporate is of the view that Goldex is contractually bound
to pay levies in respect of the vacant stands mentioned
in its
Certificate of Real Rights of Extension of which it is still the
holder on the basis as if it was the owner of sections
in terms of
the
Sectional Titles Act. Goldex
, on the other hand, is of the
view that no levies or other amounts are due and payable to the Body
Corporate in respect of its
Real Right of Extension with specific
reference to 19 demarcated and numbered areas on the common property.
[43]
On Mr Hulme of Goldex’ version it has paid an aggregate amount
in excess of R4.4m to the Body Corporate between 14 June
2007 and
February 2016, which contributions the Body Corporate submits was for
nothing else than levies raised and which Goldex
contractually agreed
to pay. Goldex now claims that many payments were made
ex
gratia
and in some instances payments were made under protest.
I could not find any indication prior to the filing of the founding
application that payments were made
ex gratia.
This was
raised for the first time in the founding affidavit.
[44]
The Body Corporate attached numerous minutes and deeds of sale to the
answering affidavit. It is not my intention to
discuss and/or
refer to each of these documents. However, I shall mention some
and quote from them when I believe it is necessary
to do so.
Goldex entered into at least three deeds of sale with different
purchasers for the cession of Real Rights of Extension
prior to the
registration of the Scheme on 29 June 2006 in terms of
s 11
of the
Sectional Titles Act.
[45
]
On 14 June 2007 the Body Corporate was established in that the Judin
Children’s Trust, the first purchaser of a Real Right
of
Extension, had its dwelling registered as a section – section 3
– in the Scheme.
[46]
On 23 August 2007 the Body Corporate held its first special general
meeting. Messrs Hulme and Sneech represented Goldex
at the
meeting. It was agreed in paragraph 12.2 of the minutes that as
from 16 June 2007 the Body Corporate would be responsible
for
maintenance and equipment. I quote the following
verbatim
from
paragraph 13.3:
“
It
was agreed that levies will commence at R2000 per month until 31
December 2007 then will be increased to R2500 per month until
the
next AGM which should be in August 2008. Payment of the base
levies will be monthly in advance by debit or stop order
to alleviate
body corporate cashflow collection problems. Interest on
outstanding levies will be levied at prime plus 2 percentage
points.
The developer will pay his share of the levies in respect of actual
costs incurred of the unsold 48 stands prorata.”
The
copy of the minutes presented to the court has not been signed by the
trustees. However Goldex’s Mr Hulme at no
stage objected
to copies being placed before me and also did not deny the
correctness of these minutes or any of the other placed
before the
court. The 2007/2008 budget accompanied the notice of the
meeting. Levy income, excluding special levies
was budgeted to
be R1 959 600 (the total income to be R2 318 100)
and the expenses were budgeted to be R1 698 800.
[47]
In the light of the budget which was duly approved, the Judin
Children’s Trust would become liable for levies of about
R2m
for the year, if Goldex’ viewpoint is accepted and also bearing
in mind the legislation considered
supra.
I accept that
it was ever intended that levies would be payable in respect of units
1 and 2. Clearly, Messrs Hulme and Sneech
on behalf of the
developer, Goldex, did not believe that it could be expected of the
first sectional title owner to pay all expenses
of the Body
Corporate. It is therefore no surprise that Goldex agreed to
pay pro rata in respect of all of the unsold 48
stands. The use
of the term “pro rata” can mean nothing else than that
Goldex accepted an obligation in respect
of each vacant unsold stand
measured against the entire costs of the Scheme. The agreed
levy is directly in line and reconcilable
with the amounts payable by
Goldex’ purchasers, in particular Mr Cowley referred to in the
next paragraph. It is highly
probable that the proposed levy of
R2 000 per month, to be increased during the 2007/2008 financial
year to R2 500, was
arrived at by dividing the total expenses by
48, and consequently, it is accepted that it was agreed that a levy
was to be paid
in respect of each vacant stand or section.
[48]
In the deeds of sale entered into between Goldex and various
purchasers, provision was made for payment of levies. It
escapes any logic that Goldex would be insisting on such payments to
be made to the Body Corporate if it had no statutory or contractual
obligation towards the Body Corporate. The deed of sale with Mr
GA Cowley, which was concluded on 2 February 2005 and long
before the
opening of the sectional title register, provides as follows and I
quote from paragraph 7.1.1:
“
the
purchaser shall be obliged to make payment of the levies attributable
to the real right of extension…..The share of expenses
to be
levied against the purchaser in terms hereof shall be equal to that
levied against the owners or purchasers of all the other
proposed
portions of the real right of extension…. It is anticipated
that the proposed levy will be between R2500 –
R3000 per month
including maintenance and building insurance.”
[49]
Even if Goldex was not statutory obliged to pay levies, nothing
prevented it to agree to the payment of levies and also contracting
with its purchasers to ensure that they pay levies. The
Scheme’s very existence was in danger if nobody was prepared
to
accept liability. Obviously, the entity that would have
suffered the most if the Scheme failed was Goldex. It must
have
spent a small fortune to develop the Scheme. I reiterate that
Goldex must have known that the Scheme would collapse
unless it
provided financial assistance in the form of levies to ensure that
the Body Corporate’s books balance.
[50]
At a meeting of trustees held on 9 December 2010 attended by Messrs
Hulme and Sneech on behalf of Goldex it was recorded that
Goldex was
in arrears. If read in context, it could only mean that its
levies were in arrears.
[51]
On 5 October 2012, nearly two years later, Mr Hulme on behalf of
Goldex for the first time queried the correct calculation
of levies,
although Goldex acknowledged its obligation to pay levies. Mr
Hulme stated during the meeting that
“
he
was not happy with what he had to pay over the past five years.”
However
Goldex accepted that levies be increased from R2500 to R3200 for
vacant stands and from R2 500 to R3600 for completed
units.
[52]
At the AGM of 24 March 2015 it was agreed by majority vote that
Goldex would be charged 50% of the agreed levy on all Goldex
and
owner vacant stands. This agreement followed upon a memorandum
circulated by Mr Hulme to owners earlier. Goldex
did not object
ex facie
the
minutes of this meeting to the above or the further agreement to
charge Goldex with 50% of the special levy to be raised,
i.e.
R6 800 per vacant stand.
[53]
I am satisfied that the golden thread that emerges from the minutes
of meetings is that Goldex agreed to pay levies on the
same basis as
other subsequent owners/developers of vacant stands over which they
held Real Rights of Extension.
IX
THE BODY CORPORATE’S ENTITLEMENT TO THE REGISTRATION OF
SERVITUDES AND TRANSFERS
OF UNITS 1 & 2 IN THE SCHEME
[54]
It is Goldex’ case that the counter-application is a clear
attempt to obfuscate the determination of its application
and that it
was in any event entirely unnecessary. I do not agree with this
submission, particularly with reference to the
registration of
servitudes and transfer of units 1 and 2. There is no reason
why this should not have been done some time
ago and I am of the view
that Goldex has been dragging its feet all along. Although
there was no demand in this regard earlier,
Goldex knew what its
obligations towards the Body Corporate and its members were and still
are. I accept Mr Porteous’
submission that there is no
controversy about the registration of servitudes and transfers and
that it is apparent from the correspondence
between the attorneys
that processes have been embarked upon to see to this. Fact of
the matter is that counsel has no authority
to oversee the processes.
[55]
Notwithstanding my observations in the previous paragraph, it must be
recorded that the Body Corporate failed to serve the
counter-application on the Registrar of Deeds as is required by
s
97(1)
of the
Deeds Registries Act, 47 of 1937
. It might be
possible to grant an order for transfer of units 1 and 2 without any
complications, although Goldex indicated
that it might rather opt for
cancellation of registration of the units in its name, instead of
transferring same to the Body Corporate.
The issue has not been
canvassed fully and I do not have the advantage of a report by the
Registrar of Deeds. However, I
am satisfied that it can do no
harm to order Goldex to transfer the units to the Body Corporate.
It has no objection thereto
in principle. The
causa
of the transfer and whether or not consideration is required have not
been recorded. I shall leave that to the parties and
trust that
they will find common ground.
[56]
There are more serious aspects that must be considered in order to
decide whether relief should be granted pertaining to the
registration of servitudes. This was never considered by any of
the parties or counsel during their argument. No doubt,
the
deeds of sale presented to the court all reflect an undertaking by
Goldex to register reciprocal praedial servitudes over the
land on
which the Scheme is operated as well as Goldex’ adjacent land.
Although it is clear that praedial servitudes are
to be registered,
much will have to be negotiated in order to obtain sufficient clarity
regarding the terms of the servitudes.
I do not intend to
elaborate further, but mention just one aspect: the parties must
obviously agree about the precise area to be
provided for the two
holes (holes eight and nine) of the golf course. The holes have
been laid out, but I do not know where
the borders of the servitude
should be and if this was ever agreed upon. The matter is none
the less important and I trust
that the parties can come to an
agreement in respect of the terms of the servitudes. I am not
in a position to direct Goldex,
with the dearth of information
available, to
“
cause
the registration of praedial servitudes in favour of applicant
(sic)
,
over the buildings, and/or services which are situated on adjacent
agricultural land”
as
prayed for in the counter-application. I would have expected
the Body Corporate to present me with draft notarial deeds
of
servitude, for these to be referred to the Registrar of Deeds for a
report and an opportunity being given to Goldex to consider
the
drafts. This did not happen. The notice of motion is too
vague to issue a meaningful order. In my view a
proper case has
not been made out for such relief.
X
THE BODY CORPORATE’S CLAIM FOR THE PAYMENT OF LEVIES
[57]
There is doubt about the correctness of the
quantum
of the
Body Corporate’s claim. I do not accept Mr Porteous’
submission that the claim is illiquid as it is not
capable of easy
proof. Items might have been claimed that the Body Corporate is
not entitled to, but that does not mean,
in principle, that levies
due and payable cannot be ascertained with relative ease. I
have been told during argument that
supporting documents consist of
about 1 800 pages, but even so, the statements forming part of the
record appear to be clear and
concise.
[58]
Mr Strathern, whilst appreciating some difficulty faced by the Body
Corporate to prove the claim, suggested that this aspect
be referred
to trial, that the counter-application shall stand as a simple
summons and that further filing of pleadings be allowed
to take place
in terms of the uniform Rules of Court. Contrary thereto, Mr
Porteous submitted that the whole counter-claim
shall be dismissed
with costs.
[59]
I believe that, instead of dismissing the counter-claim
in
toto
as
required by Goldex, the matter should be referred to trial. In
doing so, the interests of justice will be served better.
The
parties need to get clarity as soon as possible. The Body
Corporate is not claiming anything for itself, but actually
for and
on behalf of its members. The Scheme finds it difficult to
survive and suffers from financial constraints.
An
appropriate order will be made.
XI
CONCLUSION
[60]
Applicant is not entitled to a declaratory order as sought.
Although it is not liable as owner of a Real Right of Extension
reserved in terms of
s 25(1)
of the
Sectional Titles Act for
the
payment to the first respondent of any amounts other than those
recoverable in terms of s 3(1)(d) of the Management Act, it
has bound
itself contractually to settle levies charged from time to time by
the Body Corporate in respect of all vacant premises,
i.e.
the
areas of the common property demarcated for future construction of
houses, such levies to be calculated and payable on a pro
rata basis
with owners of other sections.
[61]
Prayer 1 of the counter-claim pertaining to the registration of
servitudes cannot succeed, although I am of the view that prayer
2 –
the transfer of units 1 and 2 - may be granted. The monetary
claim – prayer 3 – shall be referred for
trial.
[62]
Mr Strathern sought costs on an attorney and client scale. Most
of the time was spent during argument to show that Goldex
was
statutory liable for payment of the levies claimed. I found in
favour of Goldex in this regard. Although I am satisfied
that
Goldex contractually bound itself to settle the levies charged by the
Body Corporate, I am not prepared to find that the application
was
brought on unreasonable grounds and/or that any other reason exists
as to why a punitive costs order should be made.
The voluminous
answering affidavit with annexures consists of nearly 450 pages, far
in excess of fifty percent of the whole application.
In the
process the Body Corporate unnecessary attached several deeds of sale
and minutes, whilst it could have made use of extracts
from these
documents.
[63]
The costs of the counter-application shall be reserved for
adjudication at the hearing. The Body Corporate obtained
limited success so far and if the attorneys were willing to
communicate with each other in more meaningful terms, it might not
have been necessary to apply for an order to transfer the two units.
Goldex never denied liability to transfer the units to
the Body
Corporate.
XII
ORDERS
[64]
The following orders are made:
1.
The main application of
applicant (Goldex) is dismissed with costs.
2.
Prayer 1 of the counter-claim is dismissed.
3.
Applicant is directed to forthwith transfer to the first respondent
(the Body Corporate of
Waterford Golf and River Estate) units 1 and
2, consisting of the gate house and ablution facilities respectively,
in the Waterford
Golf and River Estate, Scheme registration number
SS139/2006.
4.
First respondent’s monetary claim against
applicant is referred to trial, the counter-application
to stand as
simple summons and further pleadings to be exchanged in terms of the
Uniform Rules of Court.
5.
The costs of the counter-claim are reserved
for adjudication at the trial.
_____________
JP
DAFFUE, J
On
behalf of applicant: Adv GF Porteous
Instructed
by:
Jordaan & Wolberg
Attorneys
Johannesburg
c/o Rossouws Attorneys
Bloemfontein
On
behalf of respondents: Adv P Strathern SC
Instructed
by:
Brian Kahn Inc
c/o Claude Reid
Attorneys
Bloemfontein