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[2015] ZAKZDHC 19
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Paganelli and Another v Beisheim and Others (3087/2014) [2015] ZAKZDHC 19 (10 March 2015)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 3087/2014
In
the matter between:
LIANA
PAGANELLI
.................................................................................................
1
ST
APPLICANT
ROBERTO
PAGANELLI
.........................................................................................
2
ND
APPLICANT
and
HELENE
BEISHEIM
............................................................................................
1
ST
RESPONDENT
BODY
CORPORATE OF SAN
KELLIND
.........................................................
2
ND
RESPONDENT
AMAFA
AKWAZULU-NATALI
.........................................................................
3
RD
RESPONDENT
JUDGMENT
Delivered
on: Tuesday, 10 March 2015
OLSEN
J
[1]
The applicants in this matter are a wife and husband who own a
sectional title unit known as Unit 11, San Kellind. The
first
respondent owns Unit 12, San Kellind. The second and third
respondents are the body corporate of San Kellind and Amafa,
the
latter being a provincial heritage conservation agency established
for the province of KwaZulu-Natal. No relief is sought
against
the second and third respondents.
[2]
The sectional title development known as San Kellind is situate on
property on which the original farmhouse of the Farm Brickfield
(estimated to be 100 years old) had been constructed. The
establishment of the sectional title development saw the original
farmhouse being divided into two, and housing Units 11 and 12, which
feature in this application. It also saw the construction
of a
six storey building, quite separate from the farmhouse, which houses
Units 1 to 10.
[3]
The applicants’ Unit 11 is on the ground floor of the original
farmhouse. Unit 12 lies above Unit 11.
[4]
The kitchen of Unit 11 spans the full length of what might be
described as a wing of Unit 11. There is a window at each
end
of the kitchen, designed to provide natural light in the room.
The applicants have found that the windows are too small
as a result
of which they mainly rely on artificial light in the kitchen.
They accordingly decided that the existing windows
should be replaced
with larger ones designed in the style of the windows in the lounge
of the unit which are part of the original
construction of the
farmhouse. That entails, of course, removing the existing
windows as well as some of the surrounding
masonry in order to
accommodate the new larger windows.
[5]
For reasons which need not be discussed in this judgment the first
respondent has consistently opposed the execution of the
applicants’
plan to install larger windows. (It should be mentioned that
the validity of the grounds of objection is
disputed by the
applicants.) The applicants first revealed their plans by
presenting their proposal to the trustees of the
second respondent in
May 2012, and because of the first respondent’s opposition the
proposed work has not yet been done.
The essence of the dispute
between the parties revolves around who has the power to make the
decision that the work should be done,
or to sanction it: the
applicants, a majority decision of the trustees, a special resolution
of the trustees or body corporate
or a unanimous resolution of all
the members of the body corporate? Attorneys became involved,
furnishing conflicting opinions.
[6]
The answer to the principal question (i.e. who can give the go-ahead)
turns very much on who owns each of the windows and the
associated
walls. In the case of the window conveniently labelled “W1”,
is the window and associated wall area,
insofar as it lies on the
outside of the median line referred to in
s 5
(4) of the
Sectional
Titles Act, 1986
, common property or common property subject to the
exclusive use of the applicants? In the case of the window
labelled “W2”,
and the associated wall area, are they
wholly within Unit 11, or does the part on the outside of a median
line drawn through the
wall and window constitute common property?
This latter debate arose because the wall into which “W2”
is set
divides the interior of the kitchen from a porch, and the
parties could not agree on whether the boundary of Unit 11 lies along
the median line of the outer wall of the porch or along the median
line of the inner wall of the porch, which is the outer wall
of the
kitchen.
[7]
In the light of the impasse which arose over these issues the
applicants launched these proceedings in which they seek the decision
of the court as to which regime governs each of the windows, offering
three alternative orders as the possible outcomes.
The decision
of the court would determine where the decision making power lies,
how the decision is to be made, and which legal
provisions would
govern the execution of the work. Obviously a finding that a
unanimous resolution of the members of the
body corporate is required
would not suit the applicants as this would afford the first
respondent a veto power which, judging
from the papers, would
inevitably be exercised.
[8]
The papers delivered in this application paint a sorry picture of the
conflict which prevailed before the application was launched.
Fortunately matters took a turn for the better, but only on the day
of the hearing. The parties agreed the status of the
window
“W2” and on the order I should make with respect to it.
The applicants’ case with respect to this
window is conceded in
substance.
[9]
The parties also agreed on the status of the window “W1”.
The area of it (and the associated masonry to be
removed to
accommodate a larger window) which lies on the outside of the median
line is common property, but not common property
of which the
applicants have an exclusive use. The portion to the inside of
that median line is of course part of Unit 11.
However, the
parties have not been able to agree on who has the power to make the
decision as to whether the window “W1”
should be
replaced. That is the remaining issue to be determined in this
judgment.
[10]
The applicants contend that what is proposed to be done falls within
the ambit of Rule 4 of the Conduct Rules which are annexure
9 to the
Regulations promulgated in terms of the
Sectional Titles Act, and
which were first published in GNR.664 on 8 April 1988. The rule
is headed “Damage, Alternations or Additions to the
Common
Property” and reads as follows.
“
4.
(1) An owner or occupier of a section shall not mark, paint, drive
nails or screws or the like into, or otherwise damage, or
alter, any
part of the common property without first obtaining the written
consent of the trustees.
(2) Notwithstanding
sub-rule (1), an owner or person authorised by him, may install-
(a) any locking
device, safety gate, burglar guards or other safety device for the
protection of his section; or
(b) any screen or
other device to prevent the entry of animals or insects:
Provided
that the trustees have first approved in writing the nature and
design of the device and the manner of its installation.”
[11]
The applicants argue that the replacement of the window will amount
to an alteration to that small portion of the common property
lying
to the outside of the median line notionally passing through the
window and that part of the associated masonry which would
be removed
in order to accommodate a larger window. They argue that a
purposive construction of
Rule 4
illustrates that the intention
behind it is primarily, if not exclusively, to regulate the conduct
of a unit holder with respect
to that part of the common property
which is inherently tied to the section belonging to the owner.
The rule implies, the
applicants argue, that such an alteration is
permitted as long as it enjoys the prior written consent of the
trustees. Given
the provisions of the rule, a majority vote of
trustees in favour of such consent would suffice.
[12]
Counsel for the first respondent argues that on a proper construction
of Conduct
Rule 4
it does not authorise a section owner to “alter”
the common property (with the consent of the trustees) otherwise than
in a minor respect of the type and relative insignificance of those
set out as examples in the rule; that is to say marking, painting
and
driving nails or screws into common property. Counsel
effectively invokes the
ejusdem generis
or
noscitur a sociis
rule. Its operation was succinctly described by Innes CJ in
Director of Education, Transvaal v
McCagie and Others
1918 AD 616
at 623.
“
General
words following upon and connected with specific words are more
restricted in their operation than if they stood alone.
Noscuntur a sociis
;
they are coloured by their context; and their meaning is cut down so
as to comprehend only things of the same kind as those designated
by
the specific words – unless, of course, there is something to
show that a wider sense was intended.”
[13]
I see three difficulties with the application of the rule in this
case in order to cut down the meaning of the words “or
alter”
where they appear in
Rule 4
(1).
(a)
Firstly, I do not think that painting the
common property which is the exterior of a unit is necessarily
insignificant in any way.
Re-painting the same colour may not
be too bad, but painting a unit a different colour to all the others
may be quite significant
indeed.
(b)
At the risk of indulging in excessive
peering at the language, the structure of
Rule 4
(1) seems to me to
go against the application of the rule in the manner suggested by
counsel for the first respondent. The
list of forbidden
activities is followed by the words “or otherwise damage, or
alter, …”. The word “otherwise”
qualifies the word “damage” and suggests that the word
“damage” may be read in the light of the list that
goes
before. But a comma follows the word damage which isolates the
phrase “or alter” from the list. If
the comma had
been left out, or if the word “otherwise” had been
employed again so that the phrase read “or otherwise
alter”,
the need to employ the
ejusdem generis
rule to cut down the meaning of the word “alter” would
have been more obvious.
(c)
Sub-Rule 4 (2), which expressly authorises
an owner to install the devices listed there, commences with the
words “notwithstanding
sub-rule 1”. That means that
but for sub-rule 4 (2) the items listed in that rule would have
fallen within the prohibition
contained in sub-rule 4 (1).
Bearing in mind that what sub-rule 4 (2) is speaking to is the
installation of these items on
common property (i.e. the exterior of
a unit), I do not think that, for instance, a steel safety gate
guarding a door can be regarded
as an insignificant imposition on the
exterior face of the unit in the same way as the driving of a nail or
a screw into the exterior
of the wall would be. That suggests
that sub-rule 4 (1) is not intended to be confined to minor
alterations; nor to minor
damage; which seems logical.
[14]
I conclude that what Conduct
Rule 4
conveys is that aside from the
exceptions stipulated in sub-rule 4 (2), an owner is not permitted to
damage or alter the common
property (and I think it is confined to
the common property associated with an owner’s section) in any
way, even in such
a minor way as driving a screw or nail into an
exterior wall, without the permission of the trustees; which suggests
that alterations
may be done with the permission of the trustees.
Extending the application of that rule to any part of the common
property
which is not associated with an owner’s section makes
no sense at all. The common property is under the control of
the body corporate through its trustees. Management
Rule 33
(annexure
8
to the regulations, which I discuss hereunder) confines
what the trustees themselves can do by way of alterations to common
property.
It would be surprising indeed if Conduct
Rule 4
was
intended to convey that a single owner of a unit can alter any of the
common property at all with the approval of the trustees
gained by
majority vote when, if the trustees themselves proposed to effect the
same alteration, they would need either the unanimous
consent of all
owners or a special resolution of owners, depending on which part of
Management
Rule 33
applies.
[15]
In my view, even if the first respondent is right in saying that not
any alteration can be made to the common property which
is the
exterior of a particular section by the owner of that section under
Conduct
Rule 4
, looking at the rule as a whole the installation of a
larger window “W1” is covered by the rule. The
proposed
project is not substantial : its effect is no more
significant than what
Rule 4
(2) allows. But it is something
that cannot be done without the written consent of the trustees who
would have more scope
to refuse permission than would be the case
under
Rule 4
(2).
[16]
The first respondent contends that the proposed alteration with
respect to window “W1” can only be carried out
under
Management
Rule 33.
Management
Rule 33
appears under the
heading “Improvements”. Sub-rule 33 (1) appears
under the heading “Luxurious Improvements”.
It
provides that the trustees need a unanimous resolution of owners to
effect or remove improvements of a luxurious nature on the
common
property. Sub-rule 33 (2) appears under the heading
“Non-luxurious Improvements”. It provides that
if
the trustees wish to effect or remove improvements to common property
other than luxurious improvements they must follow a particular
process. They must give written notice of their intention to
all owners not less than 30 days before the trustees intend
to
proceed with the work. The notice must provide details of the
costs to be incurred, how the costs are to be financed and
the effect
it will have on levies; and of the need and desirability and effect
of the proposed work. If any owner asks for
it, a special
general meeting must be convened to discuss the matter. The
proposal may then be approved by way of a special
resolution of
owners passed at the meeting.
[17]
The first respondent argues that sub-rule 33 (1) applies. The
argument is based solely on the proposition that anything
not
necessary must be classified luxurious. In my view that
argument cannot be sustained.
[18]
The legislation contains no definition of the word “luxurious”.
One must conclude that the well-established classification
of
improvements recognised in our common law must be the context within
which
rule 33
falls to be interpreted. In our law we recognise
necessary improvements, useful improvements and luxurious
improvements.
This classification was described as follows in
United Building Society v Smooklers’
Trustees and Golombick’s Trustees
1906
TS 623
at 627.
“
The
authorities classify the expenses which one man may conceivably
bestow on the property of another under three heads: (1)
necessariae
impensae
, that is, expenses which are
necessary for the preservation of the property; (2)
utiles
impensae
, that is, expenses which,
although they are not necessary to preserve the property,
nevertheless improve its market value; and
(3)
voluptuariae
impensae
, that is, expenses which
neither preserve the property nor increase its market value, but
merely gratify the caprice or fancy of
a particular individual.”
Although
the definition of the category of “useful improvements”
may be criticised because it allows obviously luxurious
improvements
to fall within it when they increase the value of the property, the
system of classification remains good law.
(See, for instance,
Goudini Chrome (Pty) Limited v MCC
Contracts (Pty) Limited
[1992] ZASCA 208
;
1993 (1) SA 77
(A) at 84 – 85.) Against that legal background it seems
clear that the non-luxurious improvements contemplated by Management
Rule 33
(2) are both necessary and useful improvements. The question
as to whether the traditional classification falls to be modified
when considering Management
Rule 33
, to exclude patently luxurious
improvements from what is contemplated by sub-rule 33 (2) despite the
fact that they may to some
extent improve the value of the common
property, does not need to be decided in this case. In my view
the proposed substitution
of window “W1” brings about an
improvement which is arguably necessary, definitely useful, and not
patently luxurious.
[19]
The installation of a larger window “W1” is useful
because it creates the utility of an increased level of natural
light
in the applicants’ kitchen, and for that reason will surely
increase the value of the section. There is no dispute
upon the
papers as to the fact that the redesigned window “W1”
will improve the visual impact of the common property
which is the
outer face of the section and that must, notionally in any event,
improve the value of the common property.
It might also be
argued that as windows are a necessity, there is no reason to regard
the replacement window as anything less of
a necessity than is the
existing one.
[20]
The objection made by the applicants to a conclusion that Management
Rule 33
applies is that it deals only with improvements which the
trustees wish to effect. I agree with the argument made by
counsel
for the first respondent that there is nothing wrong with the
notion of the trustees deciding that they wish to effect the
alteration
to window “W1” because that is requested of
them by the applicants, whose consent to such an improvement is in
any
event necessary because it involves an alteration to their
section (i.e. that part of window “W1” and the associated
wall which lies on the inside of the median line).
[21]
In the circumstances I conclude that the proposed replacement of
window “W1” can be effected either
(a)
by the applicants with the permission of
the trustees under Conduct
Rule 4
; or
(b)
by the trustees with the consent of the
applicants under Management
Rule 33
(2).
Of
course in the latter case the work would be undertaken at the expense
of the applicants but under the control of the trustees,
as otherwise
their permission would not be secured. The notice contemplated
by Management
Rule 33
(2) would record that the replacement of window
“W1” would have no effect upon levies paid by the owners.
[22]
The applicants’ notice of motion conveyed that they would seek
no order of costs except against any respondent opposing
the
application. The second and third respondents played no part in
these proceedings. The first respondent’s
opposition was
aimed at achieving an outcome which required a unanimous resolution
of all owners (which obviously could not be
achieved without the
first respondent’s co-operation) before either of the windows
could be replaced. (I say that notwithstanding
the last minute
concession made with regard to window “W2” on the day the
application was argued.) The first
respondent has not succeeded
in achieving her desired outcome. Although the applicants are
not going to be granted all the
relief they originally sought (the
omitted relief is not discussed in this judgment because of
concessions made on the day of argument),
the applicants have
achieved substantial success. Costs ordinarily follow that
result. I have given consideration to
the question as to
whether it would be proper to diminish the prejudice of that outcome
to the first respondent either wholly (by
ordering each party to pay
their own costs) or partially. I have decided against that
course primarily because on these papers
it is clear that the
applicants’ proposal enjoyed the support of the trustees and of
the overwhelming majority of owners
at the outset, and that the
windows would have long since been installed in accordance with law,
and without the burden of this
costly litigation, but for the
intransigent attitude adopted by the first respondent. The more
reasonable stance adopted
by the first respondent on the day of the
hearing came too late and did not go far enough.
I
accordingly make the following orders which reflect my understanding
of what counsel have agreed should be done if I should reach
the
conclusions which I have.
A.
(1) It is declared that the portion
of the window and surrounding wall forming part of Unit 11, San
Kellind, depicted as “W1”
on the extract from Sectional
Plan 16 of 1997 which is annexure “X” to this judgment
and order, which lies on the outside
of the median line, forms part
of the common property of San Kellind.
(2) It is
declared that the alterations to the said window “W1”
proposed by the applicants may be undertaken
(a) by the
applicants with the prior written consent of the trustees as
contemplated by Conduct
Rule 4
applicable to San Kellind, and with
due regard to the provisions of Management Rules 68 (1) (iii) and
(iv); or
(b)
by the trustees of the second respondent, with the consent of the
applicants, under Rule 33 (2) of the Management Rules of San
Kellind.
B.
(1) It is declared that the window
depicted as “W2” on the extract from Section Plan 16 of
1997 which is annexure “X”
to this judgment and order
forms part of Unit 11, San Kellind.
(2)
It is declared that any proposed alteration to window “W2”
may be undertaken at the instance of the applicants,
but with due
regard to the provisions of Management Rules 68 (1) (iii) and (iv).
C.
The declaratory orders set out in
paragraphs A and B above affect only the internal decision-making
processes of San Kellind with
respect to the applicants’ desire
to alter windows “W1” and “W2”, and do not
affect the applicants’
responsibility, nor that of the second
respondent, to comply with all other applicable laws with respect to
the proposed alterations
to those windows.
D.
The first respondent is ordered to
pay the applicants’ costs.
OLSEN
J
Date
of Hearing: MONDAY, 02 MARCH 2015
Date
of Judgment: TUESDAY, 10 MARCH 2015
For
the Applicants: MR P J COMBRINCK
Instructed
by: LARSON FALCONER HASSAN PARSEE INC
2
ND
FLOOR, 93 RICHEFOND CIRCLE
RIDGESIDE
OFFICE PARK
UMHLANGA
ROCKS
DURBAN
(Ref.:
N KINSLEY/JD/02/P283/001)
(Tel
No.: 031 – 534 1600)
For
the 1
ST
Respondent: Ms K NORTHMORE
Instructed
by: BICCARI BOLLO MARIANO INC
12
CORPORATE PARK
11
SINEMBE CRESCENT
LA
LUCIA RIDGE OFFICE ESTATE
LA
LUCIA
DURBAN
(Ref.:
K Northmore/DB1239)
(Tel.:
031 – 5666 769)