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[2015] ZAKZDHC 49
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Body Corporate of Reberry Park v Grundler (12886/2014) [2015] ZAKZDHC 49 (2 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
No: 12886/2014
DATE:
02 JUNE 2015
NOT
REPORTABLE
In
the matter between:
THE
BODY CORPORATE OF REDBERRY
PARK
............................................................
Applicant
And
ANDRÈ
GRUNDLER
...........................................................................................................
Respondent
JUDGMENT
Gorven
J
[1]
Redberry
Park is a scheme administered under the Sectional Titles Act.
[1]
On 12 March 2009, a rule nisi was issued calling upon the Body
Corporate of Redberry Park (the Body Corporate) to show cause why
the
respondent should not be appointed as administrator in respect of the
scheme for a period of 36 months. This rule nisi
was confirmed
on 18 October 2010.
[2]
The order stipulated that the respondent
would have all of the powers and duties of the Body Corporate
provided for in the Act to
the exclusion of the Body Corporate. This
pursuant to s 46(3) of the Act which reads as follows:
‘
The
administrator shall, to the exclusion of the body corporate, have the
powers and duties of the body corporate or such of those
powers and
duties as the Court may direct.’
[3]
The present application was launched with
an affidavit deposed to by the owner of a unit in Redberry Park,
Clementine Lindiwe Mfeka.
She purported to do so on behalf of the
Body Corporate. In the founding affidavit, she averred that she was
the chairperson of
the trustees of the Body Corporate having been
‘elected in a meeting which was held following the regulation
of the Sectional
Titles Act . . .’ The case made out by her for
the removal of the respondent is that his term of appointment by the
court
terminated 36 months after confirmation of the rule nisi on 18
October 2010. Despite his appointment having lapsed, she averred,
the
respondent ‘sought to reinstate himself’ by continuing
operating on the bank account and taking legal actions against
members of the Body Corporate. The order envisages that a board of
trustees, which Ms Mfeka says has been elected by the Body Corporate,
resumes running the scheme on behalf of the Body Corporate.
[4]
The respondent, in answer, put up the court
orders relating to his appointment. After the confirmation of the
rule nisi in October
2010, two further orders were made. The first
was granted on 12 March 2012 and the second on 25 February 2013.
The latter
appointed the respondent as administrator for 36 months
from that date. This means that, absent some other intervening
factor,
the appointment terminates in February 2016. In reply,
Ms Mfeka did not deny that the court orders referred to above were
granted and have not been set aside.
[5]
Mr Thango, who appeared in support of the
application, conceded that the court order in question meant that the
application did
not make out a case that the respondent was no longer
clothed with the authority of an administrator under s 46 of the
Act.
This means that the averment of Ms Mfeka that the order
appointing the respondent as administrator has lapsed through
effluxion
of time must be rejected. This also means that the Body
Corporate remains divested of its powers, and those who claim to have
been
elected trustees, have no powers in relation to the Body
Corporate or the running of the scheme.
[6]
Mr Thango went on to submit that the
respondent had behaved improperly as administrator. Section 46(4) of
the Act entitles a body
corporate, a local authority, a judgment
creditor of the body corporate or any owner or other person having a
registered real right
in or over a unit to apply to court to remove
from office or to replace an administrator. However, in the present
matter, no such
case was made out on the papers. The only case made
out was that the order appointing the respondent had lapsed. This,
too, Mr
Thango candidly and correctly conceded. There is therefore no
basis to grant the order sought.
[7]
The question of costs then arises. Since
the application must fail, the costs should follow the result unless
there is some other
basis to order the respondent to pay the costs.
Although submissions were made in argument that the respondent had
not acted in
the interests of members of the Body Corporate, there
were no averments to that effect in the papers. The submissions were
therefore
without foundation. There is therefore no basis for a costs
order against the respondent.
[8]
Ms Mfeka, who deposed to the founding and
replying affidavits, did not, in law, have the authority to represent
the Body Corporate.
She did not even aver under oath that the
application had been authorised by the Body Corporate. The Body
Corporate is therefore
not properly before the court. If a costs
order were granted against the named applicant, this would mean that
the Body Corporate
would be liable to pay costs. This, in turn, means
that the costs would be funded by all the members of the Body
Corporate by way
of levies, whether general or special. I can see no
basis on which members of the Body Corporate should be saddled with
any costs,
whether on a party and party basis or as between attorney
and client. The appropriate costs order is therefore that Ms Mfeka
should
pay the costs on the scale as between attorney and client.
[9]
There is clearly no basis for granting the
relief sought. There is also clearly no basis for ordering anyone
other than the deponent
to pay the costs of the application. There is
also no basis on which the members of the Body Corporate should be
liable for the
attorney and client portion of the costs.
[10]
In the result:
1
The application is dismissed.
2
The deponent to the founding and replying affidavits, Clementine
Lindiwe Mfeka, is ordered to pay the costs of the application
on the
scale as between attorney and client.
T
R GORVEN
DATE
OF HEARING: 2 June 2015
DATE
OF JUDGMENT: 2 June 2015
FOR
THE APPLICANT: P Jorgensen,
Instructed
by ERASMUS VAN HEERDEN ATTORNEYS.
FOR
THE RESPONDENTS: K Thango,
Instructed
by THANDI SIMA AND ASSOCIATES.
[1]
Sectional
Titles Act 95 of 1986
.