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South Africa: Kwazulu-Natal High Court, Durban
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2013
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[2013] ZAKZDHC 43
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Body Corporate of Fascadale Heights v Bayne and Others (2907/13) [2013] ZAKZDHC 43 (28 August 2013)
In the KwaZulu-Natal High
Court, Durban
Republic of South Africa
Case
No : 2907/13
In
the matter between :
The
Body Corporate of Fascadale Heights
........................................................
Applicant
and
David
Leslie Graham Bayne
..................................................................
First
Respondent
Michael
Jurgen Radmer
....................................................................
Second
Respondent
Gisela
Rita Dill
......................................................................................
Third
Respondent
___________________________________________________________________
Judgment
___________________________________________________________________
Lopes J
[1] The applicant in this
matter is the body corporate of Fascadale Heights, a sectional title
building situated in Ramsgate, KwaZulu-Natal.
The first respondent is
the owner of unit 10 in the development, and the second and third
respondents are the co-owners of unit
15.On the 18
th
March
2013 and at 2.30pm the applicant sought and obtained an urgent order
in the form of a rule with interim relief directing
the respondents
to remove security gates, positioned in the corridor in front of
their respective units.
[2] The gates were
removed pursuant to the order and the respondents have undertaken not
to re-erect them without the consent of
the applicant. Accordingly,
all that remains to be decided is the question of costs.
[3] The following are
common cause :
(a) in respect of the
first respondent, the security gate in front of his unit had been
erected by a previous chairman of the applicant
approximately ten
years ago;
(b) on the 29
th
January 2013 the first respondent received an email from the
applicant informing him that the insurance company which underwrote
the insurance over the development required that the security gates
be removed, failing which the insurance cover would be withdrawn;
(c) on the 5
th
February 2013, the first respondent requested a copy of the insurance
policy. That was never provided to him;
(d) on the 19
th
February
2013 the first respondent indicated that he would obtain quotes to
remove the security gate and requested to know the precise
municipal
law and wording of the bylaw which it was alleged he had contravened
in having the gate where it was situated;
(e) on the 24
th
February 2013 the first respondent notified the applicant by way of
an email that he regarded it in the interests of the development
that
the security gate be removed, and he enquiried as to the costs of a
handyman to do so. On the 26
th
February 2013 the first
respondent sent a handyman to remove the gate. The handyman was
turned away, apparently by the chairman
of the applicant, because he
did not have consent from the first respondent in writing to remove
the gate;
(f) a decision was made
by the applicant on the 15
th
March 2013 to proceed with an
urgent application in this court. On Saturday the 16
th
March,
notice was given to the respondents. On the 18
th
March, the
day before the application, the first respondent’s attorney
notified the applicant’s attorneys that they
would oppose the
grant of any urgent relief and that the seeking of such relief would
be premature. This was in the light of the
first respondent’s
undertaking to remove the security gate which was done on the 18
th
March 2013, although the surrounding framework was not removed until
after the interim order was granted;
(g) with regard to the
second and third respondents, the second respondent lives abroad and
the third respondent resides in Johannesburg.
The security gate in
front of their unit had also been in existence for a number of years;
(h) the third respondent
was in occupation of unit 15 from approximately the 8
th
February to the 20
th
February 2013. Pursuant to a
conversation which she had with the chairman of the applicant on or
about the 8
th
February 2013 it is clear that she had
received a similar email to that sent to the first respondent, and
that she was aware of
the need to remove the security gate. She
indicated in correspondence that she needed time to remove the gate
and put in a new
gate on the door of her unit, together with burglar
guards on the windows. Her responses to the applicant’s demands
were
somewhat variable in that she asked for an extension of time
within which to remove the offending gate until the 7
th
March 2013, which was shortly thereafter replaced with a notification
that she could only do so by the middle of April. Those letters
were
sent on the 26
th
and 27
th
February 2013
respectively and not responded to by the applicant until, on the 16
th
March 2013, notice was given to her of the urgent application to be
heard on the Tuesday. The notice was also given to her erstwhile
attorneys who no longer acted on her behalf. On the 18
th
March 2013 (on her version) she contacted the caretaker and asked him
to attend to the removal of the security gate. He requested
a short
SMS confirming his authority to do so, which the third respondent
provided. On the morning of the 19
th
March 2013 at 10.00am
the supervisor Mr de Bruin confirmed that he had removed the security
gate, but had not been able to remove
the frame because he did not
have the correct equipment to do so.
[4] It is a sad
indictment on the legal profession in general, and the attorneys in
this matter in particular, that the order in
this matter was sought
on an urgent basis, with such little notice to the respondents.
Notwithstanding that the order was complied
with within a day of its
granting, the parties nevertheless saw fit to file in excess of 250
pages of affidavits and annexures,
the only purpose of which, at that
stage, was to deal with the question of costs.
[5] It is difficult to
understand why the attorneys for the respective parties could not
have put their heads together and saved
themselves considerable time,
and their clients considerable costs, by agreeing an appropriate
order with regard to the costs.
Instead answering and replying
affidavits were filed and the matter was set down on the opposed roll
to be heard in argument for
over an hour.
[6] Having considered the
conduct of the parties in this matter, and in the exercise of my
discretion with regard to the award of
costs, I take the view that
the applicant should not have brought the application out of normal
court times, and on such short
notice to the respondents. If it had
wished to bring such an application it should have afforded the
respondents more notice. The
reasons for not doing so are but poor
excuses for not having given proper notice.
[7] The respondents are
not, however, blameless. They reacted slowly to the request by the
body corporate that they remove the gates
within seven days, failing
which the insurance policy on the building would be jeopardised. In
addition, once the order had been
granted, they filed affidavits
which do not entirely excuse their delay in not having had the gates
removed timeously.It was clear
that the gates had to be removed,
something which was eventually accepted by the respondents.
[8] In all the
circumstances I do not consider it necessary for me to indulge in a
detailed analysis of all the parties’ respective
contentions
regarding the conduct. Suffice it to say that both parties were at
fault in their conduct, when in the circumstances
common sense should
have prevailed, and the matter should have been disposed of without
the resort to expensive and protracted
litigation.
[9] In the circumstances
I make the following order :
The rule is discharged
with each party ordered to pay their own costs of the application.
Date
of hearing : 26
th
August 2013
Date of judgment : 28
th
August 2013
Counsel for the Applicant
: M E Stewart (instructed by BiccariBollo Mariano Inc)
Counsel for the
Respondents : J F Nicholson (instructed by Shepstone & Wylie)