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[2017] ZAKZDHC 24
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Padachie v Body Corporate of Crystal Cove and Others (6592/2016) [2017] ZAKZDHC 24 (15 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 6592/2016
In
the matter between:
ARUMUGAM
PADACHIE
APPLICANT
AND
BODY
CORPORATE OF CRYSTAL COVE
FIRST
RESPONDENT
ROYSTON
ARTHUR WAYNE WILSON
SECOND
RESPONDENT
THE
REGISTRAR OF DEEDS, KWAZULU-NATAL
THIRD
RESPONDENT
ORDER
1.
The Applicant is ordered to pay the Second Respondent the costs
occasioned by the hearing on 1 June 2017 such costs to include
the
costs of preparation and of the Heads of Argument from 8 May 2017 to
the date of hearing on 1 June 2017.
JUDGEMENT
RADEBE
J
INTRODUCTION
[1]
The Applicant is an adult male accountant and is an owner of two
units within the First Respondent's sectional scheme, namely
unit 21
and unit 35. The Second Respondent is an adult male and chairperson
of the First Respondent. The latter is a Body Corporate
of Crystal
Cove, duly established in accordance with the terms and the
provisions of Sectional Title Act, 95 of 1986, having its
address at
Flat 3, 186 South Beach Road, La Mercy, KwaZulu-Natal.
[2]
On 11 July 2016 the Applicant lauched the application in question by
way of Notice of Motion, , seeking an order against the
First
Respondent to the effect that the First Respondent: (a) be directed
to make available for an inspection by the Applicant
at the offices
of the Registrar of the Honourable Court, on a date and time to be
arranged with the Registrar, certain documents
listed in the said
Notice of Motion;
[1]
(b) be
directed to agree to the aforesaid inspection within 30 (thirty) days
of the granting of the order; (c) be directed to provide
to the
Applicant, at the aforesaid inspection, copies of all the documents
referred to in (a) hereof. Further, against the Second
Respondent the
Applicant sought an order for costs of the application on an
attorney-and-client scale. The First and Second Respondents
opposed
the application.
[3]
When the application came before me for hearing on 1 June 2017 the
first issue, namely, the Applicant's entitlement to inspection
and
copying of the documents sought had become academic. The second issue
namely, that of costs, remained to be decided. At the
conclusion of
the argument presented by Mr Edy, for the Applicant and Mr Boulle,
for the First and Second Respondents, I gave an
order in line with
paragraphs 1 and 3 of the Notice of Motion.
[2]
Judgement in respect of costs of the application was adjourned to 15
June 2017.
BRIEF HISTORY
[4]
During 2010 the Applicant's brother requested the documents in
question on behalf of the Applicant. It is common cause that
by that
time there already existed an acrimonious relationship between the
Collin Padayachie, the Applicant's brother, the Applicant
and the
Second Respondent with vulgar utterences hurled between them.
[3]
The
Second Respondent invited the inspection of the documents but
declined to permit the making of copies. The email from the Second
Respondent to the Applicants brother reads as follows:
"As you should be
well aware, you may INSPECT these documents and make notes. Copies
will not be provided... As previously
advised you may inspect
documents relating to the BC in my presence. The earliest time
available for this Monday, 4th October"
[4]
The
Second Respondent thought it prudent that he should be present in
order to safeguard the documents against unlawful removal
or
defacing.
[5]
The Second Respondent addressed the said correspondence as chairman
of the Crystal Cove Body Corporate (BC). There are of course
other
email correspondence between the Applicant's brother and the Second
Respondent which are in their respective personal capacities.
These
are the ones that contain unsavoury language.
[5]
[6]
It is apparent from Annexures 0
1
; 0
2
; 0
4
;
0
5
and o
6
that the Second Respondent extended
an invitation for inspection only, and this to be done in his
presence (i.e putting aside the
unsavoury utterances by BOTH parties.
The Applicant did not deny these invitations in his Replying
Affidavit.
[7]
On 1 July 2015 the Applicant sent an email to the Second Respondent,
requesting inspection, pursuant to the Trustees' Report
and the
tabled Annual Financial Statements for the year ended 30 November
2014; and, the publication of the AGM documentation and
the
Chairman's Report. The Second Respondent's response was
inter
alia
that
the Trustees have no problem with regard to any matters pertaining to
the BC and that any owner has always been free to ask
bona
fide
questions
relating to the management of the complex, however, there were time
constraints within which the request could addressed.
As on 27 July
2015 the time and date of the inspection had not been possible to be
set.
[6]
The Applicant does not
deny this as it is not addressed in his.
[8]
On 14 July 2015 the Applicant revived his request for an
inspection.
[7]
Correspondence by
emails again ensued, culminating in correspondence through attorneys
Rhugbeer & Associates, dated 1 September
2015, demanding
inspection and the making of copies of the documents by not later
than 4 September 2015.
[8]
This
followed upon several other email requests in the intervening period.
The demanding was considered by the Second Respondent
to be
unrealistic, given the time frame of three days, vis-a-vis the volume
of documents.
[9]
On 2 September 2015 the First Respondent's Attorneys replied to the
letter of demand for inspection, reiterating that the inspection
of
document may be done, but no copying would be permitted. It further
invited the Applicant to suggest a suitable time and date.
It is
significant to mention that the First Respondent's attorneys drew
Applicants; attention to the provisions of the Management
Rules of
the Body Corporate, specifically Rule 34(3) and 35(2). In terms of
Rule 35(2) inspection by an owner is allowed.
In
terms of rule 34(3) the Trustees shall make all Minutes of the
proceedings and the Minutes of the Body Corporate available for
inspection by an owner on the written application by that owner. Both
rules do not allow for copying.
[9]
[10]
On 9 October 2015 the inspection was ultimately scheduled to take
place under strict conditions placed on the Applicant, namely:
10.1. that no laptop
computer and cellular phone was allowed into the room where
inspection was to take place at the managing agent's
office in
Ballito;
10.2. that the Applicant
would not be allowed to take notes as according to the Act and the
Prescribed Management Rules only inspection
of documents was allowed.
[11]
After some brief argument between the Second Respondent and the
Applicant, the latter decided to leave the Balitto offices
as he
found it impossible to inspect volumenous documents, without the use
of his laptop and cellular phone in order to make notes.
[10]
[12]
Notwithstanding the complaint alluded to above, in his Replying
affidavit the Applicant's complaint centres mainly around the
limited
space as well as the insufficiency of documentation available for
inspection;
[11]
the Second
Respondent's action in preventing him from exercising his rights
owner; and the Second Respondent making it as difficult
as humanly
possible for him to inspect the documents.
EVALUATION
[13]
The Applicant launched this application on 11 July 2016. The exchange
of affidavits was completed soon after the filing of
the Applicant's
Replying Affidavit on 28 September 2016. The Applicant's Notice of
Set-down for 1 June 2017 was served and filed
on 26 October 2016.
[14]
On 11 June 2011 the Sectional Titles Schemes Management Act, No.8 of
2011("the New Act") was assented to, and its
commencement
date is 7 October 2016; ("two weeks prior to Set Down").
Its preamble is to
inter
alia,
provide
for the establishment of bodies corporate to manage and regulate
sections and common property in sectional titles schemes
and for that
purpose to apply rules applicable to schemes. Section 10 of the New
Act provides for the management rules. Under the
revised management
regulations, effective from 7 October 2016, the body corporate is
obliged to provide copies of the documents
upon request by the
Applicant for specified records.
[12]
Regulation 27 provides:
"27 Governance
documents and records.
(1) ...
(2) ...
(3) ...
(4) On receiving a
written request, the body corporate must make the records and
documents referred to in this rule available for
inspection by, and
provide copies of them to:- a member..."
[15]
The set of records permitted to be made available are tabulated in
section 27(2) of the Regulations, and include the nature
of the
documents which are the subject matter of this application.
[16]
Pursuant to the provisions of the New Act and Regulation 27(4) the
First Respondent has tendered to comply with the request
and to
provide copies to the Applicant, hence my order dated 1 June 2017
COSTS
I
SSUE
[17]
In paragraph 4 of the Notice of Motion the Applicant asked for the
cost order against the Second Respondent only, on the
attorney-and-client
scale. On 8 May 2017 the Applicant filed his
Heads of Argument dated 4 May 2017.
In
paragraphs 2.2 of the Applicant's Practice Directive, the Applicant
reiterated his cost order sought against the Second Respondent
only.
In paragraph 10 of his Heads of Argument the Applicant again asks for
a costs order against the Second Respondent only. Applicant
basis his
prayer for costs on what he perceives to be the Second Respondent's
conduct in persistently obstructing the Appl icant's
entitlement to
inspect the documents and refusing, without just cause, to permit him
to make copies of the documents.
[18]
However, in a surprise twist, when the application came before me for
hearing on 1 June 2017, Mr Edy submitted that the Applicant
seeks an
order against the First and Second Respondents jointly and severally,
the one paying the other absolved. He further argued
that if the
First Applicant is to pay the costs, then the Applicant is to be
exempted from the Special Levy that may be raised
to cover costs of
the application; and that therefore each member must pay according to
the participation quota. Further, he argued
that the First and Second
Respondents could have withdrawn their opposition in October 2016
after the commencement of the New Act,
instead of waiting until 15
May 2017, when it made the afore-mentioned tender. (see para 16
supra)
He
referred me to the decision in
NXUMALO
AND ANOTHER vs MAVUNDLA AND ANOTHER
[13]
where it was held that:
"... Although the
first applicant had been entitled to seek legal advice regarding the
validity of the will in order to make
an informed decision as to
whether or not to resort to litigation, ... there was nothing more
the first applicant could have done
to secure a copy of the will that
to request the first respondent to furnish him with it, and it was
thus clear that, had the applicants
or their attorneys had sight of
the will on or before 18 November 1999 (the day before the instant
application had been lunched)
, the application could have been
avoided altogether ."
Held further:
"that the fact that
the first respondent's neglect to let the Applicants or their
attorneys have sight of the will on or before
18 November 1999 was
the fundamental cause of the litigation meant that the first
respondent was not entitled to the costs of the
Application. The
first respondent therefore had to pay the costs of the application up
to 19 November 1999."
See also:
GAMLAN INVESTMENTS
(PTY) LTD and ANOTHER v TRILION
CAPE
(PTY) LTD AND ANOTHER;
[14]
where
it was held that a party must pay such costs as have been
unnecessarily incurred through his failure to take proper steps
or
through his taking wholly unnecessary steps.
[19]
Mr Boulle argued that the Applicant asked costs against the Second
Respondent only, and that the only opposition mounted to
the
application is based on that cost order sought, at whatever scale. He
argued that the Second Respondent's summary of the incidents
at issue
stands to be accepted both because it has not been properly refuted
in the Applicant's Replying Affidavit and because
based on the
application of the Plascon-Evans decision, there is no scope to
contend that the Second Respondent acted
mala fide,
grossly
negligently, dishonestly or recklessly.
[20]
In the NXUMALO decision (footnote 13
supra)
[15]
Mbenenge
AJ stated that...
"where a disputed
application is settled on a basis which disposes of the merits except
insofar as costs are concerned, the
Court should not have to hear
evidence to decide the disputed facts in order to decide who is
liable for costs, but the Court has,
with the material at its
disposal, to make a proper allocation as to costs."
[21]
Having regard to the principle enunciated in PLASCON-EVANS PAINTS
LTD
[16]
the issue whether or
not the instant application was necessitated by the Second
Respondent's failure to allow the Applicant to
make copies and or
take notes using his laptop computer and his cellular phone should be
decided on the Second Respondent's version,
which has not been
refuted by the Applicant in its Replying Affidavit.
[22]
It is common cause that the Applicant was permitted to inspect the
documents. It was on 9 October 2015 that the Applicant abandoned
the
inspection after the Second Respondent prevented him from entering
the inspection room at Ballito with his laptop and cellphone.
Applicant's complaint was based on a number of factors which vary
from his being barred from making copies, to taking notes to
limited
space vis-a-vis the volume of documents.
[23]
The Second Respondent's version is that both the First and Second
Respondents took the position of not permitting copying of
documents,
by whatever means based on:
23.1 the then management
rules which at that stage clearly differentiated between the right to
copy and the right to inspect. The
Second Respondent alleges that he
always genuinely believed that it was not permissible to make copies.
23.2 the Second
Respondent had refused permission to anyone to copy document because
such was not expressely permitted in the management
regulations , and
the First Respondent, being creature of statute, had been bound by
the powers defined and limited in the Act.
23.3 the Second
Respondent believed that he position the took was reasonable and
cannot be regarded as mala
fide.
[24]
Mr Boulle argued that the evidence does support the contention that
the Second Respondent's actions in refusing the Applicant
to copy the
documents show any
mala
fides
on
his part; and, that therefore he cannot be burdened with a cost order
against him.
[17]
[25]
In terms of Rule 12(1) (a) of the Prescribed Management Rules at the
time immediately before the launching of this application
the
following provision prevailed:
"12(1)(a) subject to
the provisions of sub-rule (2) every trustee, agent or other officer
or servant of the body corporate
shall be indemnified by the body
corporate against all costs, losses, expenses and claims which he may
incur or become liable to
by reason of any act done by him in the
discharge of his duties, unless such costs, losses, expenses or
claims are caused by the
mala fide
grossly negligent act or
omission of such person."
[26]
Mr Edy did not argue on this point, save to submit that the decision
to refuse the Applicant permission to make copies of the
document was
that of the Second Respondent, personally as shown by the general
tenor of the Answering Affidavit as well as the
contents of annexures
"0
1
” to "0
6
" of the
Founding Affidavit. The applicant did not elect to refer the matter
to oral evidence so as to cross-examine the Second
Respondent in
order to establish
malice or mala
fide
and or gross
misconduct on his part.
[27]
There are various instances in papers that may be looked at to find
whether there is any malice or gross negligence on the
part of the
Second Respondent:
27.1.
the Second
Respondent does admit that there exists a general history of acrimony
between him and Applicant. He alleges that, - notwithstanding
that
acrimony , he had done whatever he had done to address the requests
for documents . However, the Applicant would not have
been satisfied
and would have sought to impugn his name.
[18]
This is not denied by the Applicant in his Replying Affidavit.
27.2.
On 1 July
2015, in response to the Applicant's request for inspection, the
Second Respondent promptly responded within an hour and
seventeen
minutes, pointing out the difficulties the Body Corporate has with
his requests, as well as spelling out the Body Corporate's
policy
regarding dissemination of private information regarding owners of
sectional units.
[19]
27.3. On 29 July 2015,
the Second Respondent replied to the Applicant's threat to seek Court
assistance to achieve the aforesaid
inspection , as follows:
"Your mail below
refers.
You will be advised of
available dates in due course."
[20]
(In response to this the
Applicant proposed various dates to look at)
27.4.
In
FAKIE N.O v CC 11 SYSTEMS {PTY) LTD 2006 (4) SA 326
(SCA)
at
[9] it was held that:
"A deliberate
disregard is not enough, since the non-complier may genuinely, albeit
mistakenly, believe him or herself entitled
entitled to act in the
way claimed to constitute the contempt. In such a case good faith
avoids the infraction.
27.5.
On 2
September 2015 the First Respondent's attorneys responded to the
Applicants' erstwhile attorneys pointing out that neither
Rule 34(3)
nor 35(2) of the Management Rules made allowance for copying of
documents; and, that the Applicant may however, inspect
the
documents.
[21]
They were clearly wrong
but that does not mean that the Second Respondent's actions were a
mala
fide.
Even if it were to be said that the Second
Respondent's actions were deliberate that would still not be enough
to conclude that
he acted
mala
fide.
27.6. The Applicant bases
the allegations of mala
tides
on the contents of Annexures
"0
1
” to "0
6
” of which
refer to events that happened during 2009. This period is irrelevant
to the events which surround the request for
inspection and copying
of documents as these happened in 2015/2016 .
[28]
With regard to the irrelevant annexures, it is not permissible for
the Applicant to merely annex irrelevant annexures, like
Annexures 01
to 06 without identifying portions upon which the court should rely
to arrive at a just decision.
[29]
In
HELEN
SUZMAN FOUNDATION v PRESIDENT OF THE RSA.
[22]
It
was stated that:
"it would have been
difficult for any of the parties to determine whether it was not a
free-for -all insult-trading and political
point-scoring contest,
sanctioned by a court of law. A court of law should never serve as a
platform for that kind of engagement."
[30]
The Founding Affidavit includes other annexures which are not
necessary to decide the application, thereby unnecessary burdening
the papers with documents which the Applicant does not need to refer
to.
[23]
This ulterence clearly
has racial connotations.
There are instances of
racial point-scoring, insult-trading which are contained in Annexures
"0
1
”, "0
3
”,"0
5
”
and "0
6
”
30.1 The Applicant says
to the Second Respondent
"Let me break this
down for benefit of those whose eyes and minds are jaundiced with
their past history." (Annexure "0
1
” on
page 159)
30.2 The Second
Respondent writes to the Applicant and
inter alia
says the
following:
"If I was violent
Padachie, you would long ago have been a lot more disabled than you
now boykie... how did I get in and out
of the country smartarse?
...you will soon be seeing your anus from that angle you never
thought possible ..." (Annexure "0
3
” page
161).
30.3 The Applicant writes
to the Second Respondent and says
inter alia:
"Don't you realise
that your violent and agressive words or actions affects no one but
only your pussy attitude." (Annexure
"0
3
",
page 161).
A
court of law cannot be expected to consider this kind of free - for -
all hurling of insults, racial slurs and inuendos which
are
irrelevant for purposes of this application.
[31]
The Regulations changed with the advent of the New Act on 7 October
2016, allowing for copying of documents. Nothing prevented
the
Applicant from making a fresh request based on the New Act and new
regulations.
[32]
Mr Edy referred me to the decision in
THE
BODY CORPORATE OF FASCADALE HEIGHTS vs DAVID L.G. BAYNE AND TWO
OTHERS
[24]
an arguing that both Respondents are to pay the costs as the First
Respondent also opposed the application; and that both were
slow in
making the tender to allow inspection and copying. Mr Boulle referred
to this decision submitting that Lopes
J
concluded
that both sides have a measure of blame.
[25]
In
casu
the
measure of blame is limited to the events after 7 October 2016. This
is a factor that ought to be taken into account in deciding
the issue
of costs.
[33]
In
KALIL
NO AND OTHERS v MANGAUNG METROPLITAN MUNICIPALITY AND OTHERS
[26]
in
which the first respondent obstructively sought to deny the locus
standi of certain of the appellants, (a point which was later
abandoned) Leach JA criticised the obstructive conduct of the
Respondent's officials and warded an adverse costs order against
the
First Respondent.
[34]
In
casu,
Mr Edy argued for an adverse cost order against both
Respondents because of what he alleges to be obstructionist conduct
of the
Second Respondents because of what he alleges to be First
Respondent firstly, the Second Respondent as an official of the First
Respondent.
However,
in this matter, the Second Respondent has not abandoned anything;
secondly; the Applicant has overburdened the papers with
unnecessary
annexures in certain respects; thirdly the Applicant has failed to
show any malice, mala
tides
or gross misconduct on the part of
the Second Respondent. Lastly, the Applicant did not do anything
further to make a fresh request
and to have the matter removed from
the opposed motion roll after the 7 October 2016 when the New Act was
ushered in.
[35]
Mr Edy argued that the concession or tender was only made on 16 May
2017. However, that does not negate the fact that nothing
was done by
the App licant, who bears the onus of proof between the yth October
2016 and 16 May 2017. As at 1 June 2017, when the
matter came before
this Court, the relief sought had become academic; there was
insurmountable dispute of fact; and, the App licant
attempted to draw
the First Respondent into arena by seeking a cost order against it,
despite the tender by the First Respondent,
and contrary to the cost
order sought in paragraph 4 of the Notice of Motion.
[36]
For these reasons the following cost order is made:
1. The Applicant is
ordered to pay the Second Respondent the costs occasioned by the
hearing on 1 June 2017 such costs to include
the costs of preparation
of the Heads of Argument from 8 May 2017 to the date of hearing on 1
June 2017.
______________
RADEBE
J
DATE:
14 June 2017
DATE OF
HEARING :
01 JUNE 2017
DATE
OF DELIVERY :
15 JUNE 2017
COUNSEL
FOR APPLICANT :
ADV. C. EDY
INSTRUCTED
BY :
ASHLYN KANDHAI ATTORNEYS
COUNSEL
FOR RESPONDENT :
ADV. A.J. BOULLE
INSTRUCTED
BY :
DE WET LEITCH HANDS INC.
[1]
Record, page 2 para (a) to (c) of Notice of Motion
[2]
Court Order of 1June 2017.
[3]
Record, page 159 to 164, Annexures "01" to "06"
-Founding Affidavit "01" to "06" - Founding
Affidavit.
[4]
Record, page 160, Founding Affidavit, Annexure 02 o 178, para 17.1
Answering Affidavit
[5]
Annexures 01(page 159); 03 (page 161) 05 (p 163)
[6]
Record, pages 27 to 29 para 64of Founding Affidavit; pages 179 to
180, paragraph 19 of Answering Affidavit;
[7]
Record, page 29, Paragraph 64.6 of Founding Affidavit; p. 180 para
20 of Answering Affidavit.
[8]
Record page 35, para 75.8 of Answering Affidavit (Annexure K6) p 18,
para 20.2 of Answering Affidavit
[9]
Record page 36 para 75.10 read with Annexure K10 on page 135, page
180 para 20.3 Answering Affidavit.
[10]
Record page 42 para 89 to p. 43 para 90 and 91 of Founding Affidavit
.
[11]
Record, page 44, page 94 to 96 of Founding Affidavit. Record, page
202, para 34-36 of Replying Affidavit.
[12]
Sectional Titles Schemes Management Regulations, 2016
[13]
2000 (4) SA 349
(D) at 350 E
[14]
1996 (3) SA 692{C)
at 701 G to H
[15]
At 356 e. (see also GAMLAN (supra) at 700 G-J)
[16]
1984 (3) SA 623 (A)
[17]
Record, page 52
[18]
Record,page 182, para 23 of Answering Affidavit
[19]
Record, page 110, to 111, Annexures "H " and "H "
to the Founding Affidavit
[20]
Record, page 127 to 128 Annexure "K2 & K3"of the
Founding Affidavit;
[21]
Record page 135, Annexure K10 of the Founding Affidavit.
[22]
2015 (2) SA 1(cc)
AT 18f (see also National Director) of Public
Prosecutions v Zuma
2009 (1) SACR 36
1(SCA) para 361(47].
Swissborough Diamond Mines (Pty) Ltd and others vs Govt of RSA
1999(2) SA 279(T) at 324G
[23]
For instance, the Conduct Rules, the Financial statements, the
extract from the arbitration proceedings.
[24]
Unreported decision of this Division, case no. 2907/13 dated 28
August 2013
[25]
Fascada le Heights (supra) para [6] to [8] on page 5.
[26]
2014(5) SA 123 (SCA) at 136 [31] and at 137 [34]