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[2008] ZAWCHC 274
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Body Corporate of the Santa Barbara Scheme v GVS Property Manage and Another (17161/2008) [2008] ZAWCHC 274 (24 October 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISIONAL)
CASE
NUMBER
:
17161/2008
DATE
:
24
OCTOBER 2008
In
the matter between:
BODY
CORPORATE OF THE SANTA
BARBARA
SCHEME
APPLICANT
and
GVS
PROPERTY MANAGE
2
nd
RESPONDENT
MR
G J SLABBERT 3
rd
RESPONDENT
JUDGMENT
ALLIE,
J
:
In
this matter I have heard extensive submissions and read the papers,
and I have heard submissions on the three primary preliminary
points
made by the respondents' counsel initially, nameiy that the matter
ought to be dismissed as one in which a proper case for
urgency was
not made out on the founding papers and as one which did not afford
respondents adequate opportunity to deal with the
issues in the
founding papers.
Then
on the issue of dispute of fact, it is contended that there were
numerous disputes of material fact, which couid not be resolved
by an
application of this nature and that it was contended on behalf of
respondents that the applicants knew, prior to bringing
this
application, that these material facts were already in dispute.
Then
on the issue of
focus
standi
it
was contended on behalf of respondents that a valid special general
meeting of the Body Corporate was held on 2 October 2008,
in which
the trustees were removed, including the deponent to the papers on
behalf of applicant, namely Ms Boshoff and that, therefore,
Ms
Boshoff did not have the necessary authority to bring this
application and did not have
focus
standi
too.
She did not have the authority to represent the Body Corporate in
this application.
In
response to this, of course, on behalf of applicant, it was submitted
that the special general meeting called on 2 October 2008
in which
she and her co-trustees were purported to be removed as trustees, was
invalid for the reason that the meeting did not
comply with Rule 53
of the Management Rules of the regulations made in terms of the
Sectional Titles Act. More specifically, it
has been argued on behalf
of the applicants that it did not comply with Rule 53 inasmuch as a
letter that at least 25% of the owners
of the units, addressed to the
trustees requesting that they call a special general meeting within
14 days, did not reach the applicant.
The applicant disputes,
therefore, that the meeting of 2 October was validly called.
That
aspect I mention pertinently, because that is one of the disputes of
material fact on these papers, that is, whether in fact
the special
general meeting of 2 October 2008 was validly called in terms of the
management rules and whether in fact the decisions
made at that
meeting, and more pertinently whether the decision made to remove
what I call the old trustees, were in fact valid.
And that, I think
it is common cause, would impact on the authority of Ms Boshoff to
bring this application on behalf of the Body
Corporate.
Because
the validity or the regularity with which the meeting was called, is
a material dispute of fact and is, t would accept,
a
bona
fide
dispute
of fact, that is an aspect which would have to be dealt with in terms
of the
Plascon
Evans
rule and, therefore, the allegations concerning the validity of that
meeting would have to be looked at on the basis of the respondents'
papers, together with the applicant's papers to the extent that there
is agreement on that aspect. As I have pointed out it is
agreed that
in fact due notice was sent out to owners that the meeting would be
held. There is no difficulty that the meeting was
correctly convened,
but what seems to be in dispute is really whether in fact the owners
had the authority to calf that meeting,
because it is in dispute
whether in fact the trustees received the notice of the owners
requesting them to call that meeting within
14 days.
However,
on the respondents' version, it is clear that the respondents state
that the owners letters requesting the trustees to
call such a
special general meeting, was in fact posted by the 3
fd
respondent to all the trustees, and what is then disputed by the
applicant on its papers, is the proof of that postage. However,
the
applicant in its papers say at paragraph 67 of the founding papers,
the deponent, Ms Boshoff, in fact had knowledge of the
fact that such
a special general meeting would be held on 2 October 2008. So whether
in fact she actually received the request
of the owners in terms of
Rule 53, has to be determined with reference to the papers of the
respondents, which says that the letters
were in fact posted to,
inter
alia,
amongst
others, Vis Boshoff.
So
based on the application of the
Plascon
Evans
rule, I would have to accept that version and, therefore, find that
Ms Boshoff has not shown that she has the necessary authority
to
bring this application on behalf of the Body Corporate of the Santa
Barbara Scheme and, therefore, on that basis I dismiss the
application and order that Ms Boshoff pay the respondents'
costs
in this application. However, I am not satisfied that merely by
virtue of short notice it was necessary to employ two counsel,
and I
will not accede to
the
request
of* the respondents that that cost should include the costs of two
counsel. So the order is merely that Ms Boshoff will
pay the costs of
the respondents and that cost would include the cost of one counsel
in this matter.
ALLIE,
J