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[2013] ZAGPPHC 298
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Mphigalale v Body Corporate of Protea Estate and Another (16763/13) [2013] ZAGPPHC 298 (17 October 2013)
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG HIGH COURT, PRETORIA)
CASE
NO. 16763/13
DATE:17/10/2013
In
the matter between:
TSHIFIWA
VICTOR MPHIGALALE APPLICANT
and
THE
BODY CORPORATE OF PROTEA ESTATE 1st RESPONDENT
PEDRO
CLOETE N.O. 2nd RESPONDENT
JUDGMENT
HASSIM
A AJ
1.
The applicant is a resident and owner of a sectional title unit in
Protea Estate. The First Respondent is the Body Corporate
of Protea
Estate created in terms of the provisions of the Sectional Titles Act
95 of 1986 (the Act).
2.
The first respondent claims arrears levies from the Applicant. It is
common cause that the applicant is in arrears and is liable
for
payment of past levies, but there is dispute as to the amount. The
applicant denies that the amount being claimed is accurate.
3.
The dispute was referred to arbitration in terms of the prescribed
Management Rule 71 (1) and (2), contained in Annexure 8 of
the
Sectional Titles Act. These
provisions provide:
“
(1)
Any dispute between the body corporate and an owner or between owners
arising out of or in connection with or related to the
Act, these
Rules or the conduct rules, save where an interdict or any form of
urgent or other relief may be required or obtained
from a Court
having jurisdiction, shall be determined in terms of these Rules.
(2)
If such a dispute or complaint arises... and .... Not be resolved.,
either of the parties may demand that the dispute or complaint
be
referred to arbitration.”
2.
The applicant seeks orders preventing the first respondent from
proceeding with the arbitration and declaring that the arbitration
process is an invalid process to resolve the dispute between the
parties.
3.
Counsel for the applicant made two submissions in this regard: that
the applicant did not consent to the arbitration and that
the notices
that are required to be served on trustees and managing agents were
not so served and therefore the process is invalid.
In relation to
this second argument, no averment to that effect was made in the
founding papers, and the respondents were not put
to the proof
thereof. During argument counsel for the applicant conceded that the
issue was raised for the first time in argument.
I therefore cannot
make a finding in favour of the applicant in this regard.
4.
It is common cause however that the relevant notices were sent to the
applicant. However, the applicant contends that he has
not consented
to the arbitration process once the notices were served.
5.
I turn then to the first argument: that is, that the applicant did
not consent to the arbitration.
6.
The legislative framework relating to the management and control of
sectional title schemes is set out in the Act. Section 35(1)
provides
that the sectional title shall be controlled by rules as from the
date of the establishment of the body corporate, subject
to the
provisions of the Act.
7.
Section 35(2) reads :
“
(2)
The rules shall provide for the control, management, administration,
use and enjoyment of the sections and the common property
and shall
comprise -
(a)
management rules, prescribed by regulation, which rules may be
substituted, added to , amended or repeal by the developer when
submitting an application for the opening of a sectional title
register, to the extent prescribed by regulation, and which rules
may
be substituted, added to, amended or repealed from time to time by
unanimous resolution of the body corporate as prescribed
by
regulation...”
8.
In terms of Regulation 30 (1) made in terms of the Act, the
management rules contemplated in section 35 (2)(a) of the Act shall
be those rules as set out in Annexure 8 to the Regulations.
9.
lt is common cause that there was no amendment, additions or other
changes effected to the rules by the developer, and that
it is the
rules contained in Annexure 8 of the Regulations that govern this
matter.
10.In
Body Corporate Pinewood Park v Dellis (Pty) Ltd
2013 (1) SA 296
(SCA)
at para 15, Mpati P held as follows:
“
It
is a matter of pure logic that, when a purchaser purchases a unit in
a sectional title scheme after a section title register
has been
opened, he or she would be deemed to have consented, or agreed, to be
bound by the existing rules relating to that scheme...It
seems to me
therefore that the arbitration procedure provided for in management
rule 71 is consensual.”
13.
Despite this, counsel for the applicant sought to rely on Body
Corporate of Greenacres v Greenacres Unit 17 CC
2008 (3) SA 167
(SCA)
in that the SCA did not find that arbitration was compulsory. Indeed,
the court in that case left the question open. The
judgment in
Pinewood has since resolved the point. But I need not dwell on this
point any further since the notion of ‘compulsory
arbitration’
that was being considered by the SCA was whether or not the
arbitration procedures under the Act are excluded
by virtue of
section 40 of the Arbitration Act. Mpati P clarified that the
management rules are consensual or contractual in nature
and that the
arbitration process provided for by Rule 71 is not prescribed by an
Act of Parliament or Regulations and therefore
does not fall within
the ambit of the exclusion in Section 40 of the Arbitration Act.
14.
The undisputed fact in this matter is that the applicant
contractually agreed to the arbitration process upon purchasing the
sectional title unit.
15.
The applicant made no averments in the founding affidavit as to the
prejudice that would flow to him should the arbitration
proceed.
16.
I therefore make the following order:
16.1.
The application is dismissed with costs.
JUDGE
HASSIM A AJ