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[2011] ZAKZDHC 39
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Body Coporate of Palazzo De Marina and Another v Inrtense Heat Investments 5 (Pty) Ltd (6047/2010) [2011] ZAKZDHC 39 (29 July 2011)
1
IN
THE KWAZULU NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE NO.
6047/2010
In the matter between:
THE
BODY CORPORATE OF
PALAZZO
DE MARINA
…................................................................
FIRST
APPLICANT
YAGAMBARAM
MOONSAMY N.O.
…........................................
SECOND
APPLICANT
and
INTENSE HEAT INVESTMENTS 5 (PTY)
LIMITED …............................RESPONDENT
JUDGMENT
MURUGASEN,
J.
[1] This an application for the
appointment of an administrator to the Body Corporate of a Sectional
Title development in terms
of S 46 of the Sectional Titles Act No 95
of 1986 (the Act).
[2] The Body Corporate of Palazzo de
Marina (the Body Corporate) represented by Yagambaram Moonsamy
(Moonsamy), the chairperson
of the Body Corporate, as first applicant
and the aforesaid Moonsamy in his capacity as the duly authorized
trustee of the Yagambaram
Moonsamy Family Trust which is the owner of
a unit in the Palazzo development as second applicant, launched this
application for
the appointment of Rajesh Maharaj as administrator of
the Body Corporate on the grounds that :
the financial affairs of the Body
Corporate were in ‘an appalling state’ as a result of
the failure of the respondent,
Intense Heat Investments 5 (Pty) Ltd,
the developer and owner of 32 units in the Palazzo , to effect
payment of levies, and
there was a dispute as to the
identity of the duly appointed and authorized trustees of the Body
Corporate, which was prejudicing
the affairs of the Body Corporate
and the Palazzo development.
[3] The applicants aver that the
conduct of the respondent had necessitated the application for the
following reasons :
(i) the failure by the respondent to
pay the levies due by it had compromised the maintenance and
administration of the Body Corporate
and, as at date of the
application, the arrear levies due by the respondent was in excess of
R130 000;
(ii) although the Board of Trustees
had on 3 August 2009 resolved that no set off against levies due
would take place and that the
claims of the respondent would only be
considered if properly vouched, the respondent was in default.
Subsequently legal action
was instituted against the respondent for
recovery of the arrear levies, which the respondent defended;
the lack of funds resulting from
unpaid levies had created financial difficulties and the Body
Corporate could not,
inter alia
maintain the lifts and the
common property or pay insurance premiums and the managing agent’s
fees; and
no financial statements had been
prepared or audited since the date of the establishment of the Body
Corporate in contravention
of the Act.
[4] The applicants also dispute the
authority of M Esmaljee the representative of the respondent who,
with the second applicant
and three other members of the body
corporate, was appointed as trustee at the inaugural general meeting
of the Body Corporate.
[5] The applicants allege further that
after the commencement of the legal action against the respondent,
Esmaljee in contravention
of the relevant management rules called a
Special General meeting of the Body Corporate on 2 April 2010. The
second applicant who
did not attend the Special General meeting,
alleges that various irregularities occurred at the meeting,
including the exercise
by the respondent of its right to vote at the
meeting when it was in arrears with the payment of the levies. He
contends that consequently
the decisions taken at the meeting were
not only invalid but have also exacerbated the problems of the Body
Corporate.
[6] Further, a firm of attorneys,
Antony Whatmore and Company, was appointed as the legal
representative of the Body Corporate at
the meeting, although the
same firm also appeared to represent the respondent.
[7] The appointment of the
administrator was consequently also sought to rectify the abuse by
the respondent of its majority vote.
[8] The application is opposed by the
respondent which contends that it was not substantially in arrears
with payment of its levies
as it performed certain cleaning and
maintenance services for the Body Corporate and paid expenses on
behalf of it, and such amounts
lay to be set off against the levies
payable by it. The respondent also disputes that it has failed to
produce documents in connection
with the services and payments or
that set off had taken place, averring that the managing agents
Ballito Estates had made legitimate
payment for services rendered by
the respondent on the premises of the Palazzo development with the
knowledge of the second applicant
and had refunded the respondent
after it had effected payment of its levies. It alleges that after an
accounting is conducted,
it is possible that the Body Corporate may
in fact owe the respondent money.
[9] The respondent also contends that
it is the conduct of the second applicant which led to the dispute in
respect of the board
of trustees as the applicants failed to comply
with the relevant management rules relating to the convening of
meetings of the
Body Corporate. The respondent also disputes the
authorization of the Body Corporate to bring the application, and the
appointment
of the second applicant as trustee and /or chairperson of
the Body Corporate and contended that the various resolutions relied
on by the applicants are invalid.
[10] The respondent further denies
that there is any need for the appointment of an administrator as the
financial affairs of the
Body Corporate were and are not in the state
alleged by the applicants. It avers that it was the conduct of the
applicants in failing
to effect payment for essential services which
had resulted in the disconnection of water and electricity to the
Palazzo development.
[11] The respondent alleges further
that the special meeting called on 2 April 2010 pursuant to a special
resolution of the trustees
passed on 17 March 2010 to dispense with
the relevant Management rules regulating the convening of meetings
was intended specifically
for the purposes of the removing as trustee
or causing the resignation of the second applicant and trustee A
Moodley and validly
electing a chairperson and trustees and
appointing a new managing agent to replace the illegally appointed
Amereda Property Management
CC (Amareda).
[12] Effectively the respondent denies
all the allegations of the applicants, in particular that the
respondent was responsible
for the adverse state of the Body
Corporate’s financial affairs and contends that their
complaints were spurious and unfounded,
that the financial woes of
the Body Corporate are attributable instead to the deregistration of
the managing agent close corporation,
Amareda, and its failure to
furnish the books of account of the Body Corporate, and that the
conduct of the second applicant was
contrary to the interests of the
Body Corporate.
[13] The respondent has also submitted
that as the trustees elected by the Special General meeting were
attending to their obligations,
the appointment of an administrator
was unnecessary ; alternatively an administrator ought to be
appointed to assist the managing
agent Maxprop only insofar as
necessary and until new trustees are appointed and the outstanding
levies collected.
[14] In terms of an order of court
dated 6 August 2010, Rajesh Maharaj (Maharaj) was appointed as
interim administrator and directed
to investigate and report to the
court on the financial affairs of the Body Corporate, the need for
the administration of the Body
Corporate under Section 46 and if
there was such need, the implementation of the Rehabilitation Plan
annexed to the application
and any proposed amendment thereto, and
the anticipated period for the implementation and completion of the
rehabilitation of the
first applicant.
[15] Subsequently by way of an
application under case number 10454/2010, the Respondent herein
sought an order for the removal or
replacement of Maharaj on the
grounds that he had been appointed as administrator on the basis that
he was a suitably qualified
and a neutral party to investigate the
problems beleaguering the Body Corporate which included the conduct
of the managing agent
Amareda Property Management CC (Amareda). It
had however subsequently come to light that Maharaj had a business
relationship with
one R Moodley, the sole member of the Amareda,
which had not been disclosed and which the respondent believed would
conflict with
Maharaj’s responsibility as administrator, as
part of his duties required him to investigate the conduct of
Amareda.
[16] In terms of an order taken by
consent Maharaj was removed and replaced with the current interim
administrator, Tracy Ludwig
(Ludwig) and the costs of the application
under Case Number 10454/2010 were reserved for determination with the
current application.
[17] Adverting to the allegations of
the parties, the versions of the applicants and the respondent are
clearly diametrically opposed
as each party strenuously rejects the
complaints against it or him and seeks instead to lay all blame on
the other party.
[18] It is not necessary to traverse
the factual background to the application and the affairs of the Body
Corporate as the report
of Ludwig contains all the pertinent facts.
The contents of the report are not in dispute although it has been
suggested by the
parties that Ludwig’s recommendations are
either not in accordance with the provisions of the Act or not
necessary for the
efficient functioning of the Body Corporate as the
complaints have been resolved and the managing agents are dealing
effectively
with their responsibilities.
[19] What emerges clearly from a
perusal of the affidavits of the parties, the supporting
documentation and the report of Ludwig,
is that neither the second
applicant nor the respondent, despite their vociferous protestations,
have come to court with unsullied
hands.
[20] When the application was launched
the financial affairs of the Body Corporate were compromised as it
could not meet its financial
commitments. The payment of
inter
alia
utilities and services, rates, insurance, the maintenance of
lifts in the development were not effected timeously and the Body
Corporate had fallen into arrears as levies were only paid by the
owners who constituted a small percentage of the holders of the
units
while the developer who held the larger proportion of the units, 32
out of 38, did not meet the levy payments for the units.
[21] As Ludwig reports, the Respondent
‘had perpetuated the culture of nonpayment of its levies and
had insisted on set off
although it had been agreed that it should
claim for expenses and no set off should take place.”
[22] That the nonpayment of levies by
the respondent and the resultant problems was ongoing is evident from
the minutes of the meetings.
One such example is evident in the
minutes of the meeting of the trustees on 25 May 2009 where it is
recorded that the respondent
had agreed to pay the outstanding levies
but only at the meeting on 1 September 2009 was it confirmed that the
payment had been
effected, and that the expenses had been refunded to
the respondent.
[23] Ludwig also reports that at a
meeting called and held on 7 June 2010, the arrear levies as at 30
June 2010 were R238 052;
the payment for insurance, lifts etc in
the approximate sum of R44 000 was due; the payment of insurance
premiums to Santam
was in arrears. The contract for the lift was
finalised and confirmed on 5 July 2010.
[24] Yet the respondent in its
affidavit dated 17 June 2010 denies that it is in arrears with the
levy payments, and claims that
a reconciliation will place the
respondent in credit. Annexure AA22.1 to the respondent’s
supplementary affidavit, the Revenue
Billing statement dated 24 April
2010, indicates that the account was in arrears and payment was
effected on 17 May 2010.
[25] It is common cause that the
respondent was liable at the time of the application, to the extent
of approximately eighty percent
(80%) of the levies. The Body
Corporate was forced into financial constraints as a result of the
nonpayment of levies. The responsibility
therefor must be attributed
to the respondent.
[26] Turning to the conduct of the
second applicant, the following is noted by Ludwig:
(i) Esmaljee and trustee P Naidoo were
not notified of the meeting on 21 January 2010 when legal action
against the respondent was
considered. It was noted that nonpayment
of levies by the respondent, and the ‘incorrect offset of
expenses’ without
trustee approval was a problem; the contract
for the lifts was not in place and the electricity account was not
paid because of
the levy arrears.
(ii) Esmaljee was also not given
notice of the Emergency General Meeting held on 30 March 2010 or the
Emergency Trustee Meeting
held on 16 April 2010. It was resolved at
the latter meeting that the Body Corporate would apply for the
appointment of an administrator
and Ravi Moodley (Moodley) who had
assumed the role of managing agent, was mandated to meet with the
attorneys and provide documentation
to them, while Moonsamy was
authorized to sign the necessary documentation. No minutes of the
meeting are on record.
[27] As pointed out by Ludwig, the
failure to give Esmaljee, as trustee, notice of the meeting albeit he
was respondent’s
representative and the respondent had
defaulted with the levy payments, was irregular and given that Rule
54 (1) is peremptory,
any decision taken at that meeting, including
the decision to apply for the appointment of an administrator, is
void
ab initio
.
[28] Significantly there is also no
record of a decision to remove Ballito Estates and appoint Amareda as
managing agent and the
agreement between the Body Corporate and
Amareda is not signed and witnessed properly, nor is the juristic
status of Amareda apparent
ex facie the agreement. It is noteworthy
that R Moodley, the active member of Amareda, had over a period of
time attended meetings
of the trustees and participated therein
despite his undetermined capacity and his ‘uninvited’
status as reflected
on the minutes. He therefore appears to have been
acting an advisory capacity to Moonsamy even before the improper
appointment
of Amareda as the managing agent.
[29] Ludwig also found that the
authority of Moonsamy to act on behalf the member of the body
corporate, the Yagambaram Moonsamy
Family Trust, was fatally flawed.
[30] However improper conduct on the
part of the respondent is also evident. On 19 March 2010, Esmaljee
gave notice to the trustees
and Ballito Estate the managing agent who
preceded Amareda, of a Special General meeting to be held on 2 April
2010 to discuss
the resignation of Moonsamy as chairperson and the
illegal appointment of Amerada as managing agent. At the meeting, the
respondent
as developer was represented by 6 persons among whom the
units it held were allocated; but no proxies in respect of this
representation
were made available to Ludwig. At the meeting,
Esmaljee was appointed chairman and four others as trustees of the
Body Corporate.
[31] It was also unanimously agreed
that Amareda be removed as managing agent and the legal proceedings
against the respondent be
withdrawn. Despite the clear conflict of
interest in the decision to withdraw proceedings against the
respondent the representatives
of the respondent participated in the
decision as it was agreed to do so ‘by unanimous vote’
but no reason for the
decision is recorded. Although Ludwig notes
that the institution of the legal action was contrary to the
resolution to hand the
respondent over ‘for collection and
recovery through arbitration or liquidation’, the minutes are
silent as to the
reason for the decision. The conduct of the
respondent’s representative who chaired the meeting was clearly
intended to protect
the interests of the respondent, as despite the
respondent being substantially in arrears with the payment of levies,
no decision
was taken at the meeting for any alternative recovery of
the levies due by it.
[32] It is therefore apparent that
both Esmaljee and Moonsamy whether in their capacities as trustee or
chairperson of the Body
Corporate acted in contravention of the
Management rules and the Act overtly or under the guise of a decision
taken or resolution
passed by the board of trustees at meetings which
were either not quorate or called without due and proper notice, in
order to
manipulate the conduct and the administration of the Body
Corporate to gratify their own interests and objective to assume
control
of the Body Corporate.
[33] While there is currently more and
better compliance with the Body Corporate’s obligations in
terms of Section 37 of the
Act, of major concern is that the
financial statements remain unaudited and the budget unrevised.
[34] Rule 48 of the management rules
requires the managing agent to keep full records of his / her
administration. Ludwig was unable
to finalise her report on the
financial situation of the Body Corporate as no financial reports
were furnished by Amareda, although
Ballito Estates had transferred
funds and other payments were made to it.
[35] Furthermore as the respondent
disputes the figure furnished by Maxprop as owing by it to the Body
Corporate, the dispute may
only be resolved if the financial records
of the successive managing agents and the bank statements are made
available. Similarly
in respect of the current financial status of
the Body Corporate and its creditors, Ludwig was only furnished with
the records
of Maxprop. As her authority under the interim order did
not extend to implementing the rehabilitation plan or reconciling the
financial statements of the managing agents, the bank accounts and
the claims of the respondent, the financial status of the body
corporate remains unascertained and there are still no audited
financial statements.
[36] However Ludwig notes that the
respondent is no longer persisting with its claim of set off but is
now paying what is due timeously.
This is clearly a positive
consequence of the application and the appointment of an interim
administrator, even though the rehabilitation
plan has not been
implemented.
[37] Nevertheless, the financial
affairs of the Body Corporate require urgent resolution. As the
powers of the interim administrator
were restricted to investigating
and reporting to the court, an administrator with the necessary
powers and authority may compel
the previous managing agents to
provide the necessary documentation and financial records to resolve
the outstanding dispute with
the respondent and ensure that the
statements of the Body Corporate are audited in compliance with its
obligations in terms of
the Act.
[38] Further previous elections of
trustees have been flawed and irregular, in particular in respect of
the representation of the
owners of the units. Therefore there was,
when the interim administrator was appointed, no duly constituted
board of trustees.
This was in the main, a consequence of the power
struggle between the respondent and Moonsamy.
[39]
Appointment of an
administrator
In deciding whether an administrator
ought to be appointed, the court must consider whether such
appointment is in the best interests
of the Body Corporate.
[40] In
Wiiliams v Nathan &
Other
(2006) JOL 18414
(W)
Labe J
held that
“
the appointment of an
administrator by the court is a drastic step for it to take because
it deprives the body corporate wholly
or in part of its powers to run
its affairs.”
He also quotes with approval from
GC
Van Der Merwe & Sonneke: Sectional Titles, Shareblocks and
TimeSharing VOl 1 paragraph [14.6] at 14-82
that a court will
only exercise its discretion to appoint an administrator in
exceptional circumstances and as a “last resort”.
[41] In
Bouramis and Another v Body
Corporate of the Towers & Others
1995 (4) SA 106
(D) Booysen J
held at page 109 G-H that :
“…
.the court should not,
where a duly constituted board of trustees is in existence, grant an
order for the appointment for the appointment
of an administrator
unless the applicant establishes on a balance of probabilities,
firstly that there have been breaches of duties
set out in S39 read
with subsec 37, 38 and 40, and, secondly, that it is likely that the
owners of the units shall suffer substantial
prejudice if an
administrator were not to be appointed by the Court. Such breaches
could take the form of a failure to perform
duties or the improper
performance of duties.”
[42] Similarly in
Dempa Investments
CC v Body Corporate, Los Angeles 2010 (2) 69 (W) Gautschi AJ
at
page 82, applied the following principles:
“
[21.1] The
court has a discretion to appoint an administrator, which must be
exercised judicially, having regard
to the circumstances of the
particular case before it.
[21.2] Special
circumstances or good cause must be shown.
[21.3] It is not
possible to define what would constitute special circumstances or
good cause, but as a minimum
there should be:
[21.3.1] some
neglect, wilfulness or dishonesty on the part of the trustees, or an
event beyond their control;
and
[21.3.2] a likelihood
that the owners of units will suffer substantial prejudice if an
administrator is not appointed.
[21.4] Acts or
omissions which would qualify would include maladministration,
breaches of statutory duties, dishonesty,
inefficiency and managerial
atrophy or deadlock. The list is not exhaustive.
[21.5] The problem
must be such that an administrator could be expected to add value
where the trustees could not.
For instance, mere inexperience on the
part of the trustees may not be sufficient, for they could appoint an
experienced managing
agent. So too it may be insufficient that the
body corporate is experiencing serious financial difficulties, for
the trustees and
managing agent may be as capable an administrator to
deal with the problem. If, however, inexperience is coupled with
wilfulness,
or the financial difficulties have been caused by
maladministration, dishonesty or the like, an administrator could be
expected
to achieve results which the trustees would not.
[21.6] A balance
should be struck between, on the one hand, being slow to interfere in
the management of the scheme
by the body corporate's chosen
representatives and, on the other hand, not hesitating to come to the
assistance of owners of units
who may suffer substantial prejudice by
the actions or omissions of trustees.
[21.7] The applicant
bears the onus to persuade the court that this is a suitable case for
the exercise of the
discretion.”
[43] Applying the
principles in
Bouramis
and
Dempa
to this case, as there
is no duly constituted board of trustees, the financial affairs of
the Body Corporate have not been rectified,
in particular monies due
to the Body Corporate remain unaccounted for and the respondent’s
dispute in respect of levies due
by it remains unresolved, the owners
of units are undoubtedly exposed to substantial prejudice.
[44] Further from
Ludwig’s report it is apparent that the trustees have failed to
perform their duties properly and in the
interests of the Body
Corporate, but have rather been selfserving and an element of
dishonesty pervades the conduct of the second
applicant and
respondent. This is contrary to Section 40 of the Act, which
prescribes that each trustee of a body corporate shall
stand in a
fiduciary relationship to the body corporate.
[45] The deep animosity between
Moonsamy and Esmaljee and the respondent which has divided the
members of the Body Corporate also
militates against an easy
resolution of the problems that continue to beset the Body Corporate.
Under these circumstances, it is
unlikely that a properly elected
board of trustees will be constituted without the intervention and
supervision of an administrator.
[46] Thus although Ludwig suggests a
mentorship, in effect what is required is a short term administrator
who may resolve the outstanding
disputes expeditiously.
[47] In deciding whether the applicant
has established good reasons that the court should exercise its
discretion in favour of appointing
an administrator, much depends on
whether the conduct of the trustees warrants the appointment.
Ironically although the respondent
now resists the appointment of an
administrator so strenuously, it was the appointment of the interim
administrator that led to
the substantial improvement in the affairs
of the Body Corporate.
[48] Although the Body Corporate is
currently being managed effectively and
competently by Maxprop, nevertheless
the powers of a managing agent do not authorize it to attend to the
issues that remain outstanding.
Further as the managing agent must
act on the instructions of the trustees, the appointment of the
trustees must urgently be finalized.
[49] Therefore, although the
appointment of an administrator is a drastic step, in respect of this
Body Corporate, it is a necessary
one, at least until the two major
issues are resolved. However the term of the administrator does not
need to be indefinite as
proposed by the applicants, given the nature
of the unresolved issues.
[50]
Costs
S46 (1) of the act reads as follows :
“
a body corporate, a local
authority, a judgment creditor of the body corporate for an amount of
not less than R500, or any owner
or any person having a registered
real right in or over a unit, may apply to the Court for the
appointment of an administrator.”
It was accordingly not necessary for
two applicants herein, with the concomitant increase in costs.
Further given that the election
process was flawed, the appointment
of the board of trustees was in dispute, and there was no quorum to
pass the resolution relied
on by Moonsamy to represent the Body
Corporate in these proceedings, the application ought not have been
launched in the name of
the Body Corporate. However the Yagambaram
Moonsamy Family Trust as owner of a unit has the necessary locus
standi under S46(1)
to bring the application; and Moonsamy avers that
he is a trustee duly authorized to bring the application on behalf of
the trust,
although no written authority to that effect has been
furnished.
Nevertheless as the affairs of the
Body Corporate were prejudiced by the conduct of the respondent, the
application for the appointment
of an administrator was justified as
it was to the benefit of the Body Corporate.
[51] In my view the circumstances
herein are appropriate for the court to exercise its judicial
discretion in respect of the award
of costs. Firstly the application
was flawed because of the highhanded conduct of Moonsamy, who was so
intent upon having an administrator
appointed, that he relied on an
invalid resolution to make the Body Corporate party to the
application. Secondly, no costs were
sought against the respondent
unless the application was opposed by it, which it did despite its
blameworthy conduct. In the circumstances
the Body Corporate ought
not be mulcted in costs as a result of the conduct of an owner and
the developer. As already found, both
parties have failed to conduct
themselves in accordance with their fiduciary obligations to the Body
Corporate. An appropriate
order for costs will therefore indemnify
the Body Corporate but encumber the Second Applicant and Respondent
with the costs of
the application.
[52]
Case Number 10454/2010 :
This application was necessitated by
the failure of Rajesh Maharaj to declare his relationship with Ravi
Moodley of Amareda. The
minutes of the meetings and Ludwig’s
report reveal a relationship between Moonsamy and Moodley which
existed even before
the disputes among the trustees arose and it is
highly improbable that Moonsamy was not aware of the relationship
between Moodley
and Maharaj when the application was launched, as
Maharaj was specifically nominated as the administrator.
The appointment of Maharaj was not in
the interests of the Body Corporate as, despite the protests to the
contrary, it is highly
improbable that as administrator he would have
been an independent party. In any event it was incumbent upon
Moonsamy as the person
who motivated the application to satisfy
himself not only of Maharaj’s credentials but also of his
ability to act independently
and only in the interests of the Body
Corporate and any potential conflict of interest ought to have been
disclosed. It has since
become apparent that the Body Corporate has
suffered financial prejudice through the conduct of Amareda and that
the investigation
of its financial affairs have been impeded by the
failure of Amareda to furnish financial records of the Body Corporate
during
its management, which has been exacerbated because Amareda is
now in deregistration.
Despite the submission that the
applicants represented by Moonsamy did not oppose the application for
the removal of Maharaj, in
my view the Body Corporate was compromised
as a result of Moonsamy’s disingenuous attempt to appoint an
administrator who
would be amenable to his suggestions. Consequently
the second applicant and not the Body Corporate should bear the costs
of the
application.
[53]
The following Order do issue
:
TRACY LUDWIG
is appointed to
act as Administrator of the First Applicant in accordance with the
provisions of section 46 of the Sectional
Titles Act, No. 95 of 1986
(“the Act”)
The term of Administrator shall be
for a period of 6 months from the date of this order.
The Administrator shall comply with
and implement the Rehabilitation Plan as set out in Annexure “YM
16” to the Founding
Affidavit insofar as she deems necessary;
The Administrator shall prior to the
termination of the order produce to this Honourable Court a Report
advising on the completion
of the Rehabilitation Plan, as set out in
Annexure “YM 16” to the Founding Affidavit (“the
Rehabilitation Plan”),
or of the reasons why she is unable or
deems unnecessary to do so;
5. The Administrator shall perform her
functions as provided for in Section 37 of the Act and be empowered
with such powers as provided
for in terms of Section 38 and 46 of the
Act;
6. The Administrator shall, prior to
the termination of her appointment, call a meeting of the members of
the First Applicant, on
at least twenty one (21) days notice for the
purpose of electing and appointing a Board of trustees for the First
Applicant and
shall, in terms of the Act, call upon such members to
nominate Trustees to be appointed to the Board of Trustees of the
First Applicant;
For the purpose of the meeting
referred to in paragraph 5 above the Administrator shall;
7.1 act as chairperson; and
7.2 determine who is eligible to
nominate Trustees and vote in accordance with the provisions of the
Act and Rules;
The remuneration of the Administrator
shall be in accordance with the hourly rate chargeable by an
attorney on the High Court
Tariff from time to time, plus reasonable
travelling costs in the event of her being required to travel
outside the greater Durban
area, or such other amount as this
Honourable Court deems meet. The costs of the administration shall
be paid by the First Applicant.
9. Within seven (7) says of the date
is this order;
9.1 the books, documents, minute
books, resolutions, bank statements, deposit books and other property
belonging to the First Applicant
be handed over to the Administrator;
9.2 any and all monies on behalf of
the First Applicant be paid or caused to be paid into the Trust
Account of the Administrator;
The Second Applicant and the
Respondent are each ordered to
bear its own costs.
The Second Applicant and the
Respondent are each ordered to pay
fifty (50) percent of the taxed costs
of the First Applicant.
The Second Applicant is ordered to
pay the costs of the application under Case Number 10454/2010.
For the Applicant: Adv M Stewart
Instructed by: Biccari Bollo Mariano
Inc.
For the Respondent: Adv PC Prior
Instructed by : Anthony Whatmore &
Company
Date of hearing: 27 May 2011-07-28
Delivered:
29 July 2011