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[2015] ZAKZDHC 87
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Goordayal and Another v Body Corporate of Riverside Mews and Others (10576/2014) [2015] ZAKZDHC 87 (6 November 2015)
In
the High Court of South Africa
KwaZulu-Natal
Local Division, Durban
Case
No :10576/2014
DATE:
06 NOVEMBER 2015
In
the matter between :
Balraj
Goordayal
..............................................................................................................
First
Applicant
Shomina
Goordayal
.....................................................................................................
Second
Applicant
And
The
Body Corporate of Riverside
Mews
....................................................................
First
Respondent
Sanjay
Singh
..............................................................................................................
Second
Respondent
EThekwini
Municipality
.............................................................................................
Third
Respondent
Judgment
Lopes
J
[1]
The applicants, who are married in community of property, are the
sectional title owners of Unit 5 of a sectional title development
described as Riverside Mews. The first respondent is the Body
Corporate of Riverside Mews and the second respondent is the current
chairman of the body corporate. The third respondent, the eThekwini
Municipality was joined by the other respondents. No relief
was
sought against it.
[2]
The history of the matter may be summarised as follows :
(a)
There are eight units in Riverside Mews.
(b)
On the 25th January 2014 a meeting was held by the trustees of the
Body Corporate on the premises of Unit 5.
(c)
At the meeting Mr Goordayal tabled plans which he had drawn for the
extension of Unit 5. These plans, copies of which were
annexures ‘A’
and 'B’ to Mr Goordayal’s founding affidavit, had,
apparently, previously been signed by
Mr Singh, as ‘Chairman,
Riverside Mews’. The purpose of the meeting was, inter alia,
to revisit the plans. The minutes
of the meeting (although referred
to as a meeting held on the 5th March 2014), are disputed.
(d)
Certain of the trustees had queries with regard to the extensions
envisaged, and Mr Goordayal took them outside the unit and
explained
the extensions to them. According to the respondents, Mr Goordayal
explained that the intended alterations to his unit
consisted an
extension of an open-deck similar to the sun-deck on the adjoining
Unit 6, repairs to his swimming pool and the construction
of a
‘privacy’ wall between Units 5 and 6.
(e)
It is clear from the copies of annexures ‘A’ and ‘B’,
that the extensions envisaged are an open deck
on the first floor of
Unit 5, together with the enclosure of a sun room below it. The
effect of the alterations is to extend the
living area of Unit 5, in
addition to creating the open deck.
(f)
When the applicants’ plans were submitted for approval by the
eThekwini Municipality, one of the Municipality’s
requirements
was that a letter be provided on the letterhead of the Body Corporate
addressed to the Head, Development Planning,
Environment and
Management Unit in a form complying with a pro forma letter provided
by the Municipality.
(g)
Mr Singh, as chairperson of the Body Corporate, had on the 1st April
2014 signed a letter confirming that the Body Corporate
had no
objection to the development of a boundary wall construction and
swimming pool renovation to Unit 5. In addition, on the
25th January
2015, he had signed a letter confirming that the Body Corporate had
no objection to ‘the development depicting
additions and
alterations to Unit number 5…’, and recorded that ‘all
submission plans have been signed’.
(h
When the Mr Goordayal then approached Mr Singh to obtain the letter
sought by the Municipality, Mr Singh refused to sign it.
(i)
Mr Singh’s stance is that he and the other members of the Body
Corporate were misled by Mr Goordayal at the meeting of
the 25th
January 2014. They had been misled inasmuch as Mr Goordayal had told
them that the only alterations which he wished to
pursue were the
construction of the first floor open deck and the repairs to the
swimming pool. Mr Singh concedes that Mr Goordayal
also wanted the
construction of a small wall between Units 5 and 6 in order to create
privacy for the owners. The Body Corporate
had had no objection to
the construction of the open deck, the small wall and the swimming
pool renovations.
(j)
Despite the fact that the applicants did not have building plans
which were passed by the eThekwini Municipality, they engaged
the
services of DDSS Consulting who notified the Body Corporate on the
10th February 2014 of their intention to commence construction
of the
building works. The letter from DDSS Consulting indicates that the
Body Corporate’s consent had been granted in October
2013.
(k)
Building construction duly commenced and it was only at that stage,
according to Mr Singh, that the Body Corporate became aware
of the
full nature and extent of the anticipated extensions.
(l)
This precipitated a flurry of correspondence between the attorneys
acting for the applicants and the attorneys acting for the
body
corporate. Complaints were made by the Body Corporate about the
manner in which the building operations were being carried
out, and
in particular the storage of building materials on the site in a
parking space provided for the applicants, as a result
of which they
had begun to use a visitor’s parking space for themselves. Mr
Goordayal’s attorneys recorded that ‘Our
client
categorically denies that he is extending his lounge and diningroom
area …’.
(m)
As the parties were unable to resolve their differences, on the 9th
September 2014 the applicants delivered this application,
seeking an
order compelling Mr Singh to sign the municipality’s pro forma
letter of consent on behalf of the Body Corporate,
in order to allow
the building alterations to go ahead in accordance with the plans
which had been signed by Mr Singh. In the
alternative the applicants
sought an order that the Deputy Sheriff of Durban North sign the
necessary documents in the event that
Mr Singh refused or failed to
do so.
(n)
The respondents opposed the application and have launched a
counter-application for an order directing the applicants to demolish
the building works which have been pursued without approved building
plans, and to remove all building rubble from the precincts
of Unit 5
and the surrounding area, together with an order interdicting the
applicants from effecting building alterations to Unit
5 without
approval and the proper plans passed by the eThekwini Municipality.
The Body Corporate also sought to interdict the
first applicant from
parking his motor vehicle in an obstructive manner in the complex.
Each party sought costs against the other
on a punitive scale.
[3]
A number of issues arise from the affidavits delivered by the
parties. They include, inter alia :
(a)
whether the members of the Body Corporate were misled by Mr Goordayal
with regard to the nature and extent of the alterations
he intended
to effect to Unit 5 ;
(b)
whether the Body Corporate was authorised to oppose the application
and seek the relief set out in the counter-application;
(c)
whether the building work already undertaken by the applicants was
lawfully carried out, and whether and to what extent they
may fall to
be demolished;
(d)
whether the Body Corporate is entitled to interdict the applicants
from effecting further building alterations.
[4]
Mr Maharaj who appeared for the applicants submitted that if I were
to find that an irresoluble dispute of fact existed on the
papers, I
should refer the matter for the hearing of oral evidence and reserve
the question of costs.
[5]
I do not believe that it is possible for me to resolve these issues
on the papers before me. I am not persuaded that a referral
to oral
evidence would be helpful, because of the issues which arise on the
papers. There are contradictions in the founding
papers of the
applicants, and improbabilities on both versions. I am concerned
that the issues are too wide-ranging for a court
hearing oral
evidence to resolve them. Such a referral would require that the
parties define the issues, which they have not done
with any, or any
sufficient clarity, which would have enabled me to draft an
appropriate order. I have decided to refer the matter
to trial. As
the applicants do not have passed building plans they cannot complain
of being interdicted against continuing building
operations pending
the resolution of the matter. The requisites for an interim
interdict have, in any event, been satisfied.
[6]
I accordingly make the following order :
(a)
the application is referred to trial;
(b)
the first applicant’s founding affidavit shall stand as a
simple summons, and the second respondent’s answering
affidavit
shall stand as a notice of intention to defend;
(c)
the applicants are directed to deliver a declaration within fifteen
days of the date of this order, and the respondents are
to deliver a
plea thereto and claim-in-reconvention within twenty days of the date
of the service upon their attorneys of the declaration;
(d)
the provisions of the Rules of this Court shall apply to the further
conduct of the matter;
(e)
pending the resolution of the trial, the applicants are interdicted
and restrained from carrying out any further building alterations
to
Unit 5, Riverside Mews, without approved building plans and any
necessary consent from the Body Corporate of Riverside Mews;
(f)
all questions of costs are reserved for decision by the trial court.
Date
of hearing : 9th October 2015
Date
of judgment : 6th November 2015
Counsel
for the Applicants : M Maharaj
(Instructed
by Azgar Ally Khan and Associates)
Counsel
for the Respondents : S Khan
(Instructed
by Ramdass & Associates)