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[2011] ZAGPPHC 214
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Guthrie and Another v Etango Game Lodge (Pty) Ltd and Another (66601/2010) [2011] ZAGPPHC 214 (9 December 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. 66601/2010
DATE:09/12/2011
PETER
JOHN
GUTHRIE
.....................................................................................
First Applicant
LESLIE
GUTHRIE
...........................................................................................
Second
Applicant
and
ETANGO
GAME LODGE (PTY)
LTD
...............................................................
First Respondent
PETE
LOURENS
........................................................................................
Second Respondent
JUDGMENT
Van
der Byl, AJ:-Introduction
[1]
The two Applicants are, by virtue of a Certificate of Registered
Title dated 14 July 2007, the registered owners of a unit consisting
of a section described and identified as Section No. 43 on Sectional
Plan No. SS 422/09 in the scheme known as Etango Private Game
Reserve
on the farm Rhenosterhoekspruit situate in the municipal area of Bela
Bela in the Limpopo Province ("the Scheme")
and an
undivided share in the common property in the Scheme.
[2]
The First Respondent is admittedly the developer of the Scheme.
[3]
The two Applicants purchased the portion on which the unit was
constructed from the First Respondent in terms of a deed of sale
concluded between the parties on 15 March 2007.
[4]
In terms of the deed of sale (record p. 29), read together with the
conditions of sale (record p. 22) -
(a)
the purchase price was a sum of R650 000;
(b)
the Applicants warranted to commence with the construction of a unit
within five years and that such construction shall be completed
within one year (clause 3.4);
(c)
the Applicants will be liable from date of transfer for the payment
of a monthly levy to the body corporate (clause 5);
(d)
the First Respondent will, within a period of six months after the
date of registration or on completion of the construction
of the
unit, provide for household purposes a water point (clause 6.2);
(e)
the Applicants shall be allowed to use only the safari vehicle
allocated by the body corporate to their unit (upon completion
thereof) on the property (clause 12.2(a);
(f)
no hunting of any kind is allowed on the property or anywhere in the
scheme save for such selective culiing as may be directed
by the body
corporate (clause
12.2(0);
(g)
the First Respondent undertakes and warrants that certain specified
game will
reside on the common property (clause 13);
(h)
the First Respondent or body corporate will supply an electrical
connection point at any border of the unit, the connection
fee and
other expenses in respect of the electrical box and cables to be
borne by the Applicants (clause 19.2).
Applicant's
case
[4]
It is the Applicants' case, as set out in their founding affidavit -
(a)
that they were approached during or about March 2007 by
representatives of the First Respondent to invest in a share of a
private
game reserve;
(b)
that on the basis of a brochure (record p. 46, Annexure G2) setting
out details pertaining to the purchase of such share provided
to them
at the time it was
represented
to them, inter alia -
(i)
that the game reserve will be fully stocked with game;
(ii)
that a new clubhouse or wellness centre would be build which would
include a gymnasium, squash court, beauty salon, lounge
and a rock
faced heated swimming pool;
(iii)
a six seater game drive vehicle would be included in the purchase
price of the stand;
(c)
that they were by these representations induced to purchase the
section i question and concluded the deed of sale to which
I have
already referred to;
(d)
they completed the building of their unit and took occupation during
December 2008 and have at the time the application was
launched
expended an amount of approximately R3 329 817 on improvements of the
property;
(e)
that during or about June 2010 they noticed a drastic decrease in the
game roaming in the reserve and were upon enquiry informed
by the
game rangers that the Second Respondent had been selling the game;
(f)
that the First Respondent failed to provide the erection and
installation of an electrical connection and to make available
the
six seater game vehicle as
provided
in the deed of sale;
(g)
that they on 30 July 2008 contacted the two Respondents and enquired
when the electricity would be connected and the safari
vehicle be
delivered;
(h)
that the Respondents in a reply by way of an email dated 31 July 2008
indicated
(1) in relation to the electricity, that the Second
Respondent was in a meeting with the electrical engineers and that
Eskom are
allowing oniy 3KVA per house, but that they have come up
with a system that will supply 6KVA per house, and
(2), in
relation to the vehicle that they will supply them with their vehicle
once they have taken occupation of their unit.
[5]
The Applicants' attorneys of record on 18 August 2010 addressed a
letter to the First Respondent in which it was contended that
the
First Respondent breached the agreement of sale in that -
(a)
it failed to provide the Applicants with a safari vehicle;
(b)
it failed to erect and install an electrical connection point;
(c)
it failed to erect the clubhouse / wellness centre;
(d)
certain game has disappeared from the reserve and that they were
advised that it has sold the game without their consent.
[6]
In view thereof the First Respondent was requested to provide the
Applicants with a written undertaking within 48 hours -
(a)
that no game will be sold or hunted without the written consent of
the Applicants;
(b)
that the clubhouse / wellness centre is erected and in use on 1
December 2010;
(c)
that the Applicants will be provided with a safari game vehicle
within six weeks from date of the letter;
(d)
that the electrical connection will be erected and stalled within
seven days from date of the letter.
[7]
The First Respondent failed to respond to this letter. It is the
Respondents' contention raised in their answering affidavit
that they
did not respond because they were under no obligation to give any
undertakings. In my view, apart from being bad manners
not to
respond, the Respondents should, at least as a matter of courtesy,
have responded to the letter.
[8]
I can now turn to the relief claimed by the Applicants and the
Respondents' response thereto as set out in the answerings
affidavit-Prayers 1, 2, 3 and 4
[9]
In these prayers the Applicants seek an order -
(a)
prohibiting the First and Second Respondents from capturing, selling
or allowing hunting of game on the Etango Private Game
Reserve
without the prior written consent of all the members iof the body
corporate (prayer 1);
(b)
ordering the First and Second Respondents to supply, within 30 days
as from date of this order, comprehensive records to the
Body
Corporate and all its members of game captured, sold, hunted and
culled (prayer 2);
(c)
ordering the First and Second Respondents to provide, within 30 days
as from date of this order, comprehensive records and
information to
the Body Corporate or its members in respect of the proceeds from the
sale of game from 15 July 2009 to date of
this order (prayer 3); and
(d)
ordering the First and Second Respondents to restore, within a period
of one year from date of this order, all such games as
had been
captured and sold during the period referred to in prayer 3 (prayer
4).
[10]
These prayers are obviously based on clause 12.2(i) (record p. 42) of
the Conditions of Sale which reads as follows:
"No
hunting of any kind is allowed on the property or anywhere in the
scheme, save for such selective culling as may be directed
by the
body corporate in a manner prescribed by the body corporate".
[11]
As already indicated the Applicants during or about June 2010 noticed
a drastic decrease in the game roaming in the game reserve
and upon
enquiries made they were informed by the game rangers that the Second
Respondent had been selling the game.
[12]
In response the Respondents admit that approximately 12 wildebeest
were, as allegedly witnessed by the First Applicant, captured
during
or about the end of 2009 and were sold to a third party (record p.
96, paragraph 12.5.2) and, furthermore, admit that, in
addition to
the 12 wildebeest, they also removed and sold two giraffe and culled
four impala (record p. 98, para 12.10).
[13]
In defence of their actions they contend that there is no body
corporate in existence and that the Applicants failed to show
that
they are entitled to enforce rights that only the body corporate can
exercise (record p. 99, para 12.12) and that they had
to do that
because the Reserve is because of its size limited to a maximum of
so-called large stock units" (record p. 95,
para 12.5).
[14]
As far as the existence of a body corporate is concerned, I have been
referred to section 36(1) of the Sectional Titles Act,
1986 (Act 95
of 1986) ("the Act) which reads as follows:
"
With effect from the date on which any person other than the
developer becomes an owner of a unit in a scheme, there shall
be
deemed to be established for that scheme a body corporate of which
the developer and such person are members, and every person
who
thereafter becomes an owner of a unit in that scheme shall be a
member of that body corporate".
[15]
These provisions are echoed in paragraph 11.1 of the Conditions of
Sale (record p. 39) which reads as follows:
"The
Purchaser hereby records that he is aware of the fact that he will
become a member of the Body Corporate of the Scheme
not later than
the date upon which the Dwelling is built and the Sectional Plans
thereof are registered at the Deeds Office.".
[16]
A similar indication appears from clause 7.1 which reads as follows:
"...
The purchaser shall be deemed to be a member of the Body Corporate
from the date of registration of the aforesaid real
right in his name
and thus be liable for the payment of levies".
[17]
The expression "Corporate Body" is defined in paragraph 1
of the Conditions of Sale (record p. 33) as "the Body
Corporate
as contemplated in section 36 of the Act. As already indicated, the
Applicants completed the building of their unit on
or about December
2008. This allegation is not disputed by the Respondents.
[18]
It is clear that the First and Second Applicants are the first and up
to the date on which they became the reg istered owners
of a unit in
the Scheme, the only persons who became owners of a unit in the
scheme.
[19]
At the hearing of this matter, the Respondents seem no longer to have
adhered to the their contention that no corporate body
existed, but
submitted that the Applicants failed to comply with the provisions
with section 41 (2), read with section 36(6), of
the Act and with
management rule 71
[20]
Section 41(1), (2) and (3) of the Act in so far as it is relevant for
present purposes reads as follows:
"
(1) When an owner is of the opinion that he and the body corporate
have suffered damages or loss or have been deprived of
any benefit in
respect of a matter mentioned in section 36(6), and the body
corporate has not instituted proceedings for the recovery
of such
damages, loss or benefit, or where the body corporate does not take
steps against an owner who does not comply with the
rules, the owner
may initiate proceedings on behalf of the body corporate in the
manner prescribed in this section.
(2)
(a) Any such owner shall serve a written notice on the body corporate
calling on the body corporate to institute such proceedings
within
one month from the date of service of the notice, and stating that if
the body corporate fails to do so, an application
to the court under
paragraph (b) will be made.
(b)
If the body corporate fails to institute such proceedings within the
said period of one month, the owner may make application
to the Court
for an order appointing a curator ad litem for the body corporate for
the purposes of instituting and conducting proceedings
on behalf of
the body corporate.
(3)
The court may on such application, if it is satisfied -
(a)
that the body corporate has not instituted such proceedings;
(b)
that there are prima facie grounds for such proceedings; and
(c)
that an investigation into such grounds and into the desirability of
the institution of such proceedings is justified,
appoint
a provisional curator ad litem and direct him to conduct such
investigation and to report to the Court on the return day
of the
provisional order.\
Section
36(6) of the Act referred to in section 41(1) reads as follows:
u(6)
The body corporate shall have perpetual succession and shall be
capable of suing and of being sued in its corporate name in
respect
of-
(a)
any contract made by it;
(b)
any damage to the common property;
(c)
any matter in connection with the land or building for which the body
corporate is liable or for which the owners are jointly
liable;
(d)
any matter arising out of the exercise of any of its powers or the
performance or non-performance of any of its duties under
this Act or
any rule; and
(e)
any claim against the developer in respect of the scheme if so
determined by special resolution".
[21]
First of all, although this contention is in the nature of a legal
contention, it is a contention not raised in the papers.
[22]
It is, however, dependent on facts on which it can be based. In this
case the legal point is based on the question whether
a written
notice was served on the body corporate or whether it was requested
to institute action {Swissborough Diamond Mines (Pty)
Ltd v Govt of
the RSA
1999 (2) SA 279
(T) at 323F). The only allegation that it had
not been done is made in the Heads of Argument filed on behalf of the
Respondents.
[22]
I am accordingly unabie to consider the application of subsection (3)
of section 41.
[23]
Furthermore, it is contended that the Applicants failed to comply
with management rule 71 providing for a dispute between a
body
corporate and the body corporate to be resolved by way of arbitration
and that the game on the nature reserve remain the property
of the
First Respondent. It is not correct as contended in the Heads
.../...
of
Argument filed on behalf of the Respondents that the management rules
are annexed to the Respondent's opposing affidavit. As
in the case of
the Respondents' reliance of section 41 of the Act, this is also an
issue not raised by the Respondents in the papers.
[24]
I am in any event of the opinion that this is not a matter where
section 41 or rule 71, as explained in the Respondents' heads
of
argument, can find any application. In view of the fact that, as
matters currently stand, the Applicants as owners of their
unit and
the First Respondent, as developer, are the only members of the
corporate body. The dispute is not a dispute between a
member and the
body corporate. It is in fact a dispute between two members of the
corporate body. The damages allegedly suffered
are suffered because
of the actions by the First Respondent, albeit through the Second
Respondent, obviously for the benefit of
the First Respondent. The
damages suffered are accordingly not damages suffered by the
Applicants and the First Respondent as another
member of the body
corporate. The Applicants' case is in fact that the First Respondent
in its capacity as developer has acted
contrary to the provisions of
the Conditions of Sale by capturing and selling game without the
permission of the one or the other
of the Applicants in his or her
capacity as a member of the corporate body.
[25]
The conditions of sale in any event do not correspond with the
provisions of Rule 71 as it allegedly provides. I have not been
placed in possession of the rules and facts relevant to the
application of those rules and am accordingly unable to determine the
force and effect of those rules. Apart from this consideration the
Applicants are, as provided in section 1(3A) of the Act, entitled
to
approach this Court for relief in so far as the parties are unable to
come to a unanimous decision on any dispute between the
Applicants
and the First Respondent.
[26]
In the circumstances I am satisfied that the Applicants have made out
a case in support of the relief claimed in prayers 1,
2 and 3 of the
Notice of Motion.. As far as prayer 4 is concerned, I am unable on
the papers to determine to what extent the game
can be restored to
numbers which may not exceed the limitations of game the reserve may
carry. This is an issue which may be resolved
as soon as the First
Respondent reported to the body corporate in accordance with prayers
2 and 3.
Prayer
5
[27]
In this prayer the Applicants seek an order ordering the First
Respondent to give, within 30 days as from date of this order,
proper
notice of and hold an annual meeting of the body corporate of Etango
Private Game Reserve.
[28]
No allegations are contained in the founding affidavit (or even in
the replying affidavit) in support of this prayer. There
is no
indication in the papers that the have indeed cailed for such a
meeting and that the First Respondent failed or declined
to do so.
[29]
The Applicants are entitled and were at all times that they were
entitled to call for a meeting of the corporate body.
[30]
There is in my opinion no basis or reason for the granting of an
order in terms of which the First Respondent is ordered to
call such
a meeting. Prayer 6
[31]
In tis prayer the Applicants seek an order rectifying the Conditions
of Sale by the insertion after paragraph 13.2 thereof
an additional
paragraph which shall read as follows:
aA
new clubhouse/weiness centre will be build which will include a
gymnasium, squash court, beauty salon, lounge and a rock faced
swimming pool.".
[32]
The Applicants' case in this regard is based on the contents of a
brochure (record p. 46) provided to them at the time the
conclusion
of the agreement of sale was negotiated in which under the heading
"Expansions": it is indicated that "a
new
ClubhouseAA/ellness centre will be built, which will include a
gymnasium, squash court, beauty salon, lounge and rock faced
heated
swimming poof.
[33]
The object of rectification is to have a contract conform to the
common intention of the parties.
[34]
If regard is had to the First Respondent's answering affidavit
(record pp. 91 to 92, para 8), it would appear that the parties
indeed had a common intention that a clubhouse/.wellness centre would
be constructed, but there was no agreement as to when it
should be
constructed. In this regard the First Respondent explains that the
First Respondent in fact contemplated the addition
of a clubhouse on
the presumption that the total of 47 transactions were to be
concluded with third party purchasers resulting
in the construction
of 47 houses before the end of 2016.
[35]
In any event the representation made to the Applicants by way of the
brochure contains no indication when it would be constructed.
[36]
I am accordingly satisfied that a clause to the one suggested in this
prayer be incorporated in the agreement byway of rectification
of the
agreement, but certainly not one providing for such facility to be
constructed within one year as from the date of any order
granted in
this regard as suggested in prayer 7.3 of the Notice of Motion.
Prayer
7
[37]
In this prayer the Applicants seek an order (prayer 7.3) ordering the
First Respondent to comply with its obligations in terms
of the
Conditions of Saie to the Deed of Sale, as rectified, by
constructing, within one year as from the date of this order, a
new
clubhouse/wellness centre will be build which will include a
gymnasium, squash court, beauty salon, lounge and a rock faced
swimming pool.
[38]
In so far, as I have already indicated, that there is no basis for an
order directing the First Respondent to construct a clubhouse
or
wellness centre within any specified period, there is no basis for an
order in those terms.
[39]
In relation to the provision of an eiectricai connection (prayer
7.1), it is in my view clear that the First Respondent is
by virtue
of clause 19.2 of the Conditions of Sale indeed bound to provide such
a point.
[40]
In relation to the provision of a safari vehicle (prayer 7.2), it is
in my view clear from clause 12.2(a) of the Conditions
of Sale, as
seems to be conceded by the First Respondent in its email dated 31
July 2008 (record p. 62, Annexure G5), that it bound
itself to supply
such a vehicle as soon as the unit is completed and to allocate such
vehicle to their unit.
Prayer
8
[41]
In my view there is no basis for the relief claimed under this
prayer, being in effect a claim for damages.
[42]
In any event if relief is granted under prayers 7.1 and 7.2 there is
no need for relief in these terms.
Order
[43]
In the result I make the following order:-
1,
THAT the Respondents be prohibited from capturing, selling or
allowing hunting of game on the Etango Private Game Reserve without
the prior written consent of all the members of the body corporate.
2.
THAT the First Respondent be ordered to supply, within 30 days as
from date of this order, comprehensive records to the First
or Second
Applicant in his or her capacity as member of the body corporate of
the Etango Private Game Reserve of game captured,
sold, hunted and
culled on the Reserve since 15 Juiy 2007..
3.
THAT the First Respondent be ordered to provide, within 30 days as
from date of this order, comprehensive records and information
to the
First or Second Applicant in his or her capacity as member of the
body corporate of the Etango Private Game Reserve in respect
of the
proceeds from the sale of game since 15 July 2009.
4.
THAT the Conditions of Sale to the Deed of Sale concluded between
the First Respondent and the Applicants during or about March
2007 be
rectified by the addition of the following subclause to clause 13 of
the Conditions of Sale"
"13.3
"A new clubhouse/welness centre will be build which will include
a gymnasium, squash court, beauty salon, lounge
and a rock faced
swimming pool.".
5.
THAT the First Respondent be ordered -
(a)
to supply or install, within 30 days as from the date of this order,
an electrical connection point at the border of section
No. 43 on
Sectional Plan No. SS 422/09 in the scheme known as Etango Private
Game Reserve (of which the Applicants are the registered
owners);
(b)
to obtain and allocate, within 30 days as from the date of this
order, a six-seater game drive vehicle to the section referred
to in
paragraph (a) above.
6.
THAT the First Respondent be ordered to pay the costs of this
application.
P
C VAN DER BYL
ACTING
JUDGEDMENT HIGH COURT
ON
BEHALF OF APPLICANTS: ADV A G JANSE VAN RENSBURG
On
the instructions of: DVD INC ATTORNEYS
do
BOTHA & HUMAN INC Suite 508, 5th Floor Olivetti House Pretorius
Street PRETORIA Ref: M Engelbrecht /MK/JB0121 Tel: (012)
0861 74 75
76
ON
BEHALF OF THE RESPONDENTS:ADV R F DE VILLIERS
On
the instructions of: FRONEMAN ROUX & STREICHER
2nd
Floor, Soetdoring Building cnr Lupin Street & Protea Avenue
Doringkloof, Centurion PRETORIA Ref: Mr. Streicher/jf/AE214
Tel: 012
0667 6158
DATE
OF HEARING: 5 December 2011
JUDGMENT
DELIVERED ON: 9 December 2011