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[2016] ZAGPPHC 595
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Body Corporate of Windsor v Mount Amanzi Shareblock Limited (12240/2015) [2016] ZAGPPHC 595 (12 April 2016)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE NORTH GAUTENG HIGH COURT
[REPUBLIC
OF SOUTH AFRICA]
DATE:
12 APRIL 2016
CASE
NUMBER: 12240/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
THE
BODY CORPORATE OF WINDSOR
HEIGHTS
SECTIONAL TITLE SCHEME
….........................................
FIRST
APPLICANT
SKY
AFRICA PROPERTI ES 24
CC.
...............................................
SECOND
APPLICANT
WALTER
SZEZINSKI
............................................................................
THIRD
APPLICANT
WALTER
SZEZINSKI
…....................................................................
FOURTH
APPLICANT
IRFAAN
KHOTA
…................................................................................
FIFTH
APPLICANT
NICOVANECK
.........................................................................................
SIXTHAPPLICANT
WILHELMINA
VAN
ECK.
................................................................
SEVENTH
APPLICANT
INA
VAN
STADEN
.................................................................................
EIGHT
APPLICANT
THEUNS
F DREYER
….........................................................................
NINTH
APPLICANT
DINA
SCHOEMAN
................................................................................
TENTH
APPLICANT
ALBERTUS
SCHOEMAN
..............................................................
ELEVENTH
APPLICANT
GINA
JACOBS
...............................................................................
TWELFTH APPLICANT
GIDEONJACOBS
......................................................................
THIRTEENTH
.
APPLICANT
MARIUS
PRETORIUS
.............................................................
FOURTHEENT
APPLICANT
MELISSA
PRETORIUS
................................................................
FIFTEENTH
APPLICANT
ERIC
RYCROFT
...........................................................................
SIXTEENTH
APPLICANT
ISOBEL
RYCROFT
................................................................
SEVENTEENTH
APPLICANT
LIANIE
.
SCHNAAR-CAMPBELL
..
N.
.
0.
.....................................
EIGHTEENTH
APPLICANT
EDWARD
AUCAMP
..................................................................
NINETEENTH
APPLICANT
CLIVE
GOMEZ
.............................................................................
TWENTIETH
APPLICANT
LIZEL
GOMEZ
........................................................................
TWENTY
FIRST APPLICANT
MARY
ANNE VAN DER WESTHUIZEN
...........................
TWENTYSECOND APPLICANT
FRED
TRENTELMAN
..............................................................
TWENTY
THIRD APLICANT
JACO
SWART
TWENTY
..................................................................
FOURTH
APPLICANT
JACO
SWART
TWENTY
........................................................................
FIFTH
APPLICANT
And
MOUNT
AMANZI SHAREBLOCK LIMITED
…
............................................
RESPONDENT
JUDGMENT
MAVUNDLA
J;
[1]
The applicant is the Body Corporate of Windsor Heights Sectional
Title Scheme, situated on Portion [2... of Portion 1…,

Hartbeesfontein 4…], as provided for in s16 of the Sectional
Titles Act No 95 of 1986 ("the
Sectional Titles Act&quot
;). The
second to twenty fifth applicants are owners of units and occupiers
of units within the sectional title scheme's property.
The scheme
property is not owned by the first respondent, but by the individual
owners jointly. The body corporate is established
for each sectional
title scheme and, as per the provisions of s36 (4) of the Act. The
body corporate is responsible for enforcement
of the Rules and the
control, administration and management of the communal property.
[2]
The applicants seek an order in terms of which the respondent is
ordered:
to
forthwith restore the applicant's' unrestricted access to the
Windsor Heights Sectional Scheme property ("scheme property")

being [Portion 2.. of Portion 1.., Hartbeesfontein];
to
forthwith restore the applicants' unrestricted use of the access
road to tho scheme property, which leads through the respondent's

property;
to
restore the applicants' unrestricted access to the respondent's
property;
That
pending the final determination of the dispute between the
applicants and the respondent in respect of the levies charged
by
the respondent, the respondent:
2.4.1
be ordered to grant the applicants full access to the respondent's
facilities;
2.4.2
be interdicted and restrained from interfering with and or limiting
in any way whatsoever, the use and enjoyment of the aforesaid

facilities by the applicant;
2.4.3
be interdicted and restrained from interfering with and or
interrupting the applicants'
(i)
access to the scheme property;
(ii)
water supply;
(iii)
any other services provided to the applicants by the respondent.
[3]
The respondent is opposing the application and has counterclaimed in
terms of Rule 6(7) seeking an order in terms of s21(c)
of the Supreme
Court Act No 10 of 2013, declaring the first applicant, the Body
Corporate of Windsor Heights Sectional Title Scheme,
liable to the
respondent for the levies charged by the respondent in terms of
notarial servitude No K8235/ 1996 calculated as 7.6%
of the total of
such expenses incurred by the respondent for:
3.1
security services;
3.2
sewerage services and refuse removal;
3.3
staff salaries for operational staff employed in the running of the
respondent's facilities;
3.4
maintenance of gardens and grounds of Windsor Heights;
3.5
electricity consumption on the common area of Windsor Heights and the
respondent;
3.6
telephone expenses in respect of the operations of the facilities of
the respondent; and
3.7
the costs of the front office and reception of the respondent's
facilities;
3.8
Payment of R40 280.per month for 12 months from 1 October 2014;
3.9
Interest on each of the monthly payments from the day of the month on
which each payment fell due at the statutory prescribed
rate of
interest to date of payment, and
3.10
a costs order against the applicants jointly and severally the one
paying the other to be absolved; and
3.11
further or alternative relief.
[4]
The main application is in essence one of spoliation allegedly
committed by the respondent. The spoliation complained of
in
casu,
is
not the classical dispossession of corporeal commodities in the
physical possession of the despoiled, but one of quasi- possessory

rights, namely access to use of certain facilities owned by the
respondent, to which by agreement the applicants are entitled to.
[1]
The means of deprivation is allegedly in the form of the unilateral
increment of levies by the
respondent.
[5]
In the matter of
ATM
Solutions
(Pty) Ltd
v
Olkru Handelaars CC
[2]
the Supreme Court of Appeal held that:
"[9]
The cases where quasi-possession has been protected by a spoliation
order have almost invariably dealt with rights to
use property (for
example, servitudes or the purported exercise of
servitudes-'gebruiksregte') or an incident of possession or
control
of the property. The law in this regard was recently succinctly
stated in First Rand Ltd v Scholtz N0
[3]
where
Malan AJA pointed out that spoliation order-
'does
not have a "catch-all function" to protect the
quasi-possession of all kinds of rights irrespective of their nature.

In cases ... where a purported servitude is concerned the mandament
is
obviously the appropriate remedy, but not where contractual rights
are in dispute or specific performance of contractual obligations
is
claimed: its purpose is the protection of quasi- possession of
certain rights. It follows that the nature of the professed right,

even if it need not be proved, must be determined or the right
characterized to establish whether its quasi
possessio
is deserving of protection by the mandament.
[4]
'
Mere
personal rights are not protected by the
mandament.
Thus only
rights to use or occupy property, or incidents of occupation, will
warrant a spoliation order."
[6]
The respondent denies that there was any spoliation, contending that
it has a right in its own discretion to increase the levies.
It has
also counterclaimed seeking the court in terms of s21 of the Supreme
Court Act to declare the increment of the levies to
be reasonable and
that they were per agreement between the parties, and therefore
enforceable.
[7]
The first applicant is a Body Corporate Windsor Heights Sectional
Title Scheme established in terms of the provisions of section
36(1)
(c) of the Sectional Titles Act No 95 of 1986 ("the
Sectional
Titles Act&quot
;), and is instituting the application in its name,
joined by owners of units and occupiers of units within the scheme.
[8]
The scheme is situated on Portion [2.. ]'84, Hartbeesfontein 445 -JQ
("the scheme property"). In terms of
s16
of the
Sectional
Titles Act, Act
95 of 1986 ("the Act") a sectional titles
scheme property is owned by owners of sections jointly in undivided
shares
proportionate to the quotas of their respective sections as
specified on the relevant sectional plan. The scheme property is,
therefore,
not owned by the body corporate but by the individual
owners ('the owners") jointly. The body corporate is responsible
for
the enforcement of the Rules and control, administration and
management of the common property.
[9]
The relevant scheme property is an island, land-locked within the
boundaries of a RCI Holiday Resort conducted by the respondent.

Access to the scheme property is gained via an access road that
traverses the respondent's property. It is common cause that there
is
servitude of right of way registered against the property of the
respondent in favour of the scheme property. The access road
is
situated within the boundaries of the servitude. A notarial deed of
servitude was registered over all the subdivisions of portion
42 in
respect of,
inter
alia:
9.1
the provision of water, sewerage services, rubbish removal and
security services by the respondent. The owners and or occupiers
of
the scheme property pay a monthly levy to the respondent for the
aforesaid services; and
9.2
The owners, their tenants and or guest are, further, entitled to use
the respondent's facilities, against against payment of
levy.
[10]
It is common cause that the respondent has a right to unilaterally
raise the levy tariffs, which he did as from October 2013.
It is also
common cause that a dispute has arisen between the applicants and the
respondent over the levy increase. This resulted
in the respondent
denying the applicants access to the shop and restaurants on the
respondent's property. The respondent restricts
access to the scheme
property via measures it implemented at the entrance gate to the
respondent's property. Prior thereto the
applicants and their guests
had free access through the respondent's only main gate, from which a
road to the scheme property traverses
through the respondent's
property. I propose not to traverse all the relevant issues germane
in this matter.
[11]
It is common cause that the applicants' property i.e. the scheme"
is like an island, landlocked within the property of
the respondent.
It is accessible through the main gate of the respondent, with a road
traversing through the respondent's property.
It is common cause that
Portion 42 was subdivided and certain portions thereof, subsequently
sold to De Wildt by the respondent.
The sub-division of Portion 42
and the development of sectional title scheme on the (sub-divided)
portions were made conditional
upon the sub-divided properties to be
notarial tied.
[12]
It is common cause that a notarial deed of servitude was registered
to give effect to the conditions attached to the sub-division
of
Portion 42 and establishment of the sectional title development and
subsequent agreement concluded between the respondent and
De Wildt.
It is not in dispute that the servitude provides for a discretionary
determination of the levy and the extent thereof.
It is stipulated in
the servitude that the respondent is entitled to determine the levy
in its sole
discretion.
[5]
[13]
Although the property owned by the respondent is defined as the
dominant property and all other sub-divisions, including the
scheme's
property, are defined as the servient properties. However, it appears
from the servitudes that:
13.1
Not all rights are granted to the respondent,
inter
alia,
a right of way is granted in favour of the scheme over the property
of the respondent. The same applies in respect of the reciprocal

access to the relevant properties;
13.2
Some servitudes, like the right of way and access, are passive in
nature, e.g. all that is required is that use of the properties
is
noted. Other servitudes, e.g. water and provision of services, use of
the facilities and irrigation servitude (included under
general
conditions) impose an obligation on the scheme to pay for levies as
counter performance.
[14]
The respondent's right to raise levies is derived from a contract
which was concluded between the respondent and De-Wildt,
which
agreement the applicants were not party to. The fact that the
applicants were not a party to the agreement between the respondent

and De Wild is neither here or there. This is so because the
respondent's right to raise the levies was registered in the
servitude
agreement, thus converting the personal right of the
respondent into a real right. The consequences thereof are that the
applicants
are bound to recognise and respect this right.
[15]
In as much as the respondent has the right to increase the levies in
its sole discretion, that does not accord the respondent
to
mero
motu,
deny the applicants access to its property and the
enjoyment of the facilities they were entitled to merely because of
their failure
to pay the levies.
[16]
In the matter of Stocks
Housing
v
Department
of Education and Culture
Services
[6]
the
Court held that: "An applicant seeking a spoliation order must
satisfy the Court upon a preponderance of probability that
it was in
possession of the property and that the respondent unlawfully
deprived it of that possession. The
mandament
van
spolie
is a long established
possessory remedy. To the extent that the well-recognised
requirements for its being granted require authority,
see
Nienaber
v
Stuckey
1946
AD 1049
at 1053-4."
[17]
In
casu,
it is common cause that
the applicants had access to the respondent's property and
facilities. It is also common cause that respondent
has since raised
its levies and thereby restricted the aforesaid access subject to
payment of the increased levies. It is common
cause that there is a
dispute between the parties in respect of the increased levies.
Absent an agreement between the parties,
the implementation of the
levies is, in my view, tantamount to despoiling the applicant's right
to access to the facilities. In
the matter of
Zulu
v Minister of Works,
KwaZulu,
and Others
[7]
the Court held that the
despoiled is entitled to restoration, without the court having to
interrogate any dispute regarding the
items forming subject of
spoliation.
[18]
I am of the view that, in circumstances where, as
in casu,
the
applicants do not pay the levies, the respondent cannot without much
ado; deny them access to the facilities over which there
is a
servitudal right, to coerce payment of the levies, without a court
order, otherwise its action amounts to spoliation. I am
therefore
satisfied that the applicants have demonstrated that they were in
peaceful exercise of their right to access the property
and
facilities of the respondent and accordingly entitled to the relief
sought. They are also entitled to the interim relief that
the
respondent be interdicted pending final adjudication of the dispute
pertaining to the levies.
[19]
In so far as the respondent's counterclaim is concerned, in my view,
it stands to be dismissed with costs for the reasons that
follow:
It
is trite in motion proceedings, where there is a dispute of fact the
Court has discretion to either refer the matter to oral
evidence or
dismiss the application. In the matter of
Tamarillo
(Pty) Ltd
v
B
N Aitken
(Pty)
Ltd
[8]
the Appellate Court held
that:
"A
litigant is entitled to seek relief by way of notice of motion. If he
has reason to believe that facts essential to the
success of his
claim will probably be disputed, he chooses that procedural form at
his peril, for the Court, in the exercise of
its discretion, might
decide neither to refer the matter to trial nor direct that oral
evidence on the disputed facts be adduced
before it, but to dismiss
the application.
Room Hire Co (Pty) Ltd v Jeppe Street
Mansions (Pty)
Ltd 19
49 (3) SA
1155
{T) at 1168. But if, notwithstanding that there are disputes on
the papers before it, the Court is satisfied that on the facts stated

by the respondent, together with the admitted facts in the
applicant's affidavits, the applicant is entitled to relief {whether

in respect of all his claims or one or more of them) it will make an
order giving effect to such finding with an appropriate order
as to
costs.
(Cf Stellenbosch Farmers' Winery Ltd v Stelenvale
Winery (Pty)
Ltd
1957 (4) SA 234
(C) at 235;
Burnkloof Caters (Pty) Ltd v Horseshoes Caters
(Green Point) (Pty) Ltd
1976 (2)
SA 930
(A) at 938.) The Court does not exercise discretion in motion
proceedings whether or not to grant claims established by admitted
or
undisputed facts; except perhaps in very extraordinary circumstances
the applicant has a right to an order in respect of such
established
claims. (Room Hire case at 1166)".
[20]
As already pointed out herein above, the respondent has a right to
mero
motu
determined
the levy and or increase thereof in its own discretion? It is trite
where an agreement contains a clause entitling one
of the parties to
determine or increase rental, interest or levies, at its own
discretion, such discretion must be exercised
arbitrio
bani viri.
This means that the
discretion must be exercised reasonably. The increase must be
reasonably applied, the increase must be reasonable,
and the other
party to be affected by such increase, must be informed and invited
to object or agree in such intended increase;
vide
Juglal NO
v
Shoprite
Checkers
t/
a
OFK
Franchise Division
[9]
;
ABSA BANK Ltd v
Lombard.
[10]
Blake and Another
v Cassim and Another
NNO
[11]
In
casu,
as already stated herein above, the respondent has a right
to determine in its discretion the levies, which right flows from the

agreement concluded between the respondent and De-Wildt.
[21]
According to the respondent, it exercised its discretion
arbitrio
bani viri
in determining the increase of levies. This is
disputed by the applicants. In my view, the dispute cannot be
resolved on the affidavits
as they are. I am disinclined to refer the
matter to oral evidence. The respondent certainly must or ought to
have appreciated
from the correspondence that flew between the
parties around the issue of levies, that there is certainly going to
be a dispute
of facts and in its own peril chose to follow the course
it did. In the premises the counterclaim stands to be dismissed with
costs.
[22]
In the premises the following order is issued:
1.
That the respondent is ordered to:
forthwith
restore the applicants' unrestricted access to the Windsor Heights
Sectional Scheme property ("scheme property")
being
[Portion 2.. of Portion 1.., Hartbeesfontein];
forthwith
restore the applicants' unrestricted use of the access road to the
scheme property, which road traverses the respondent's
property;
restore
the applicants' unrestricted access to the respondent's property;
2.
That pending the final determination of the dispute between the
applicants and the respondent in respect of the levies charged
by the
respondent, the respondent:
be
and is ordered to grant the applicants full access to the
respondent's facilities;
2.1
be and is interdicted and restrained from interfering with and or
limiting in any way whatsoever, the use and enjoyment of the

aforesaid facilities by the applicant;
2.
3 be and is interdicted and restrained from interfering with and or
interrupting the applicants':
(i)
access to the scheme property;
(ii)
water supply;
(iii)
any other services provided to the applicants by the respondent.
3.
That the counterclaim is dismissed.
That
the respondent pays the applicants' taxed or agreed costs of the
main application and the counterclaim.
____________________
N.N.MAVUNDLA
Date
of Hearing
….......................
:
14/ 03 I 2016; Date of Judgment12/ 04 I 2016
APPLICANTS'
ADVOCATE
….....
: ADV DANIEL
PRINSLOO
INSTRUCTED
BY.
.......................
: ELSA
KRUGER AITORNEYS
RESPONDENT'S
ADVOCATE
.....
: ADV H F JACOBS SC
INSTRUCTED
BY
..........................
:
MACROBERTS INC
[1]
Vide Zulu v Minister of Works, KwaZulu and Others
1992 (1) SA 181
(D
& CLD) at186F-J, 187H-188F.
[2]
2009 (4) SA 337
(SCA) at 340 l-341C.1871.
[3]
2008(2) SA 503 (SCA) at 5lO B-C.
[4]
See also Telkom SA Ltd v Xsinet (Pty) Ltd
2003 (5) SA 309
(SCA) at
para 14; cf Impala Water Users Association v Lourens NO and Others
2008 (2) SA 495
(SCA), reported first in
[2004] 2 ALL SA 476
, where
the court considered that rights to water in issue were not purely
contractual in origin and that they were protected
by mandament.
[5]
Record: clause 87 and Clause E2 pages 67 and 70 of the record
respectively.
[6]
1996 (4) SA 231
(CPD) at 2381-J.
[7]
1992 (1) SA 181
( D) a t 187
[8]
1982 (1) SA 398
(AD) at 430G-431A.
[9]
2004 (5) SA 248
(SCA) at 261 D-E.
[10]
2005 (5) SA 350
(SCA) at 3538-C.
[11]
[2008] ZASCA 67
;
2008 (5) SA 393
(SCA) at 402A-D.