Unit 1501 Twin Towers South (Pty) Ltd v Trustees for the time being of the Twin Towers Body Corporate and Others (10089/2005) [2007] ZAWCHC 42 (25 July 2007)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2007
>>
[2007] ZAWCHC 42
|

|

Unit 1501 Twin Towers South (Pty) Ltd v Trustees for the time being of the Twin Towers Body Corporate and Others (10089/2005) [2007] ZAWCHC 42 (25 July 2007)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO: 10089/2005
In
the matter between:
UNIT 1501 TWIN TOWERS
SOUTH (PTY) LTD
Applicant
And
THE TRUSTEES FOR THE
TIME BEING OF THE
1
st
Respondent
TWIN TOWERS BODY
CORPORATE
THE TWIN TOWERS BODY
CORPORATE
2
nd
Respondent
THE REGISTRAR OF
DEEDS
3
rd
Respondent
THE OWNERS OF TWIN
TOWRERS
4
th
Respondent
JUDGMENT:
25/07/07
VAN
REENEN, J:
1] The
applicant, a company with a share capital and incorporated in
accordance with the company laws of the Republic of South Africa
is
the registered owner in terms of Title Deed No ST 18730/1998 of
Sections 81 and 184 in the sectional title scheme established
in
respect a block of flats consisting of residential and commercial
components known as Twin Towers (The Scheme) and situated in
Sea
Point.
2] The
first respondent is the Trustees for the time being of the second
respondent.
3] The
second respondent is the Body Corporate of Twin Towers (the Body
Corporate) established during 1979 in accordance with the
provisions
of the Sectional Titles Act, No 66 of 1971 (the 1971 Act) and as
such has perpetual succession as well as the capacity
to sue and
being sued in its own name in respect of, inter alia, any matters
arising out of the exercise of any of its powers or
the performance
or non-performance of any of its duties.
4] The
third respondent is the Registrar of Deeds, who has been joined
herein pursuant to the provisions of Section 97(1) of Act 47
of 1937.
Other than having filed a report, the third respondent has not
participated in these proceedings. The owners of the other
residential units in the said sectional title scheme are the 4
th
to 106
th
respondents.
5] Section
27 of the 1971 Act (which was repealed by the Sectional Titles Act
No 95 of 1986 (the 1986 Act) as from 1 June 1998)
provides as
follows as regards the control and management of bodies corporate: -
“
(1) A
building and the land on which it is situated shall as from the date
of the establishment of the body corporate be controlled
and managed,
subject to the provisions of this Act, by means of rules.
(2)(a) The
rules shall provide for the control, management, administration, use
and enjoyment of sections and the common property,
and shall include
(i) the rules contained in Schedule I
which shall not be added to, amended or repealed except by unanimous
resolution of the members
of the body corporate;
(ii) the rules contained in Schedule 2
which may be added to, amended or repealed by special resolution of
the members of the body
corporate.
Until such time as special rules are
made for the control and management of a building and the land on
which it is situated, the
rules set forth in Schedules 1 and 2
shall, as from the date of the establishment of the body corporate,
be in force in respect
of such building and land.
When any such special rules have been
made, or when any rule has been added to, amended or repealed, the
body corporate shall lodge
with the registrar a notification in the
prescribed form of such special rules, addition, amendment or
repeal, and the registrar
shall in the prescribed manner make a
reference thereto on the schedule to the relevant sectional plan
referred to in section 5
(3) (f).
No addition to or amendment or repeal
of any rule pursuant to subsection (2) (a) (i) shall be of any force
or effect until the body
corporate has lodged with the registrar a
notification in the prescribed form of such addition, amendment or
repeal and the registrar
has in the prescribed manner made a
reference thereto on the schedule to the relevant sectional plan
referred to in section 5 (3)(f).”
6] The
members of the second respondent at an extraordinary meeting held on
5 September 1979 by unanimous resolution adopted rules
in
substitution of the rules contained in Schedule 1 of the 1971 Act and
in terms of Section 5(3)(f) thereof duly submitted them
to the third
respondent..
7] Rule
31.1 of the 1979 rules provides as follows: -
“
31.1 The liability of owners to
make contributions, and the proportions in which the owners shall
make contributions for the purposes
of section 30(1) of the Act, or
may in terms of section 35 of the Act, be held liable for the payment
of a judgment debt of the body
corporate, shall be modified in terms
of Section 24(3) of the Act as follows:
The residential owners shall
contribute to the costs of maintenance of the lifts in the
residential towers on the basis that
the owners of sections on
each floor shall contribute one one hundred and twentieth part of
the cost of lift maintenance multiplied
by the number of the floor
in each case. The amount allocated to each floor in terms of the
above formula shall be borne by
the owners of sections on that
floor in proportion to their participation quota.”
8] Whilst
Section 24 (2)(c) of the 1971 Act provided that the participation
quotas of sections in a sectional title scheme would determine
the
proportion in which the owner of any section had to make
contributions to an administrative expenses fund for the purposes of
Section 30(1) thereof and in terms of Section 35 thereof could be
held liable for the payment of any judgment debt of a body corporate
of which he/she/it wass a member, subsection 24(3) thereof empowered
the members of a body corporate to make rules by means of unanimous
resolution whereby, inter alia, the liability of an owner of any
section to make contributions for the aforementioned purposes could
be modified. As the rules passed in 1979 were intended for inclusion
in Schedule I of the 1971 Act in substitution of those originally
promulgated, it upon lodgement with the third respondent constituted
an implied repeal thereof merely by virtue of compliance with
the
procedural requirements of Section 27(2)(a)(i) of the 1971 Act and
the exercising of the powers conferred upon members of bodies
corporate by the provisions of subsection 24(3) thereof. In terms of
the provisions of subsection 27(5) the rules so made were binding
on
bodies corporate and the owners and occupiers of any sections in such
a scheme.
9] Section
59 of the 1986 Act repealed the laws specified in the schedule
thereto, one whereof was the 1971 Act. However, Section
60(7)
thereof provides that notwithstanding such repeal and subject to the
provisions of subsection 60(4) thereof, any unaltered
rules that were
contained in Schedules 1 and 2 of the 1971 Act shall lapse and would
be deemed to have been replaced, subject to
addition, amendment or
appeal by the Management and Conduct rules contemplated in
subsections 35(2)(a) and (b) of the 1986 Act.
As the resolution
adopted by the members of the second respondent on 5 September 1979
in effect repealed the rules that were contained
in Schedule I and
introduced rules additional to those contained in Schedule 2, the
provisions of subsection 60(70)9a) of the 1986
Act do not find
application at all and the provisions of subsection 60(7)(b) of the
1986 Act apply only to the unamended rules.
In the premises the
provisions of subsection 60(8) of the 1986 Act, which provides as
follows, apply only to rules made in substitution
of the rules
originally promulgated in Schedule 1 and 2 as they constitute rules
“… other than those referred to in subsection
(7)”.
“
(8)
Subject to the provisions of subsection (4) of this section, any
rules other than rules referred to in subsection (7) of this
section,
applying in respect of a scheme immediately prior to the commencement
date, shall, subject to such substitution, addition,
amendment or
repeal as contemplated in paragraph (a) or (b) of section 35(2) of
this Act, as the case may be, remain in force after
the said date,
except to the extent that any such rule may be irreconcilable with
any prescribed management rule contemplated in
section 35(2)(a), in
which case the management rule concerned shall apply. Provided that
any such rules shall as from the commencement
date be deemed to be
supplemented by any rule for which it does not make provision but for
which provision is made in the prescribed
rules.”
10] Accordingly,
unless the provisions of subsection 60(4) of the 1986 Act found
application or one or more of them are irreconcilable
with any
prescribed Management and Conduct rules as contemplated in
subsections 35(2)(a) and (b) of the 1986, namely the management
rules
that have been promulgated as Annexures 8 and 9 to the regulations
promulgated in Government Notice R 664 of 8 April 1988 and
subsequently amended the 1979 rules, would have remained in force.
11] The
aforegoing constitutes the statutory and regulatory matrix against
which the applicant, on 6 October 2005, instituted proceedings
in
this court by way of notice of motion against the respondents in
which it claimed an order in the following terms: -
“
1] Declaring
that Rule 31.1.5 (
“the
offending rule”
)
of the Rules of the Sectional Title Scheme known as Twin Towers
(
“Twin
Towers”
registered in terms of Act No. 66 of 1971 under no. 25/1979, is
irreconcilable with Rule 31 of the Prescribed Management Rules
referred
to in Section 35(2)(a) of Act 95 of 1986 and that the
aforesaid Rule 31 of the Prescribed Management Rules applies to the
costs of
the maintenance of the lifts in the residential towers of
Twin Towers.
2]
Alternatively
,
an Order that the offending rule is not reasonable as contemplated in
Section 35(3) of Act No. 95 of 1986 and I set aside.
3] Costs of suit only in the event of
this matter being opposed.
4] Further
and/or alternative relief.”
12] The
provisions of subsection 60(8) of the 1986 Act are stated to be
“subject to the provisions of subsection (4)”. The expression

“subject to” does not have an
a priori
meaning (See:
Pangbourne Properties Ltd v Gill & Ramsden (Pty) Ltd
1996(1) SA 1182 (A) at 1187 J - 1188 A). Whilst it is sometimes
used to signify what is dominant and what is subservient in
a
statutory context (See:
Chevron Engineering (Pty) Ltd v
Nkambule
2003(5) SA 206 (SCA) at 210 E – F) it is also
frequently used to introduce a qualification or limitation and means
“except
as curtailed by” (See:
Premier, Eastern Cape and
Another v Sekeleni
2003(4) SA 369 (SCA) at 375 H – I).
13] I
am in agreement with the submission of Mr Gamble SC - who with Ms
Cowen, appeared for the respondents - that the said expression
is
in subsection 60(8) of the 1986 Act used in the first of the
aforementioned senses. That being the case, it appears to me to
be
axiomatic that any enquiry into whether the applicant is entitled to
the relief claimed in prayer 1 alternatively, prayer 2 of
the notice
of motion, should be preceded by an inquiry into whether the
provisions of subsection 60(4) of the 1986 Act, which provides
as
follows, find application: -
“
(4)
No provisions of this Act shall affect any vested right in respect
of any exclusive use by an owner of a part or parts of common
property conferred before the commencement date by rules made under
the Sectional Titles Act, 1971, or any other vested right granted
or
obtained in terms of that Act, or arising from any agreement
concluded before the commencement date.”
14] That
enquiry is facilitated by the fact that the respondents’ counsel
restricted their argument that Rule 31.1.5 remained unaffected
by the
provisions of the 1986 Act, to the submission that it determined that
the individual members of the second respondent would
contribute to
the maintenance costs of the lifts (as well as the other costs
mentioned in rule 31.1) on a basis different to the
participation
quota - which in terms of the provisions of Section 24(2)(c) of the
1971 Act was the default position - and submitted
that the fact
that such members’ financial obligations were limited and defined
in that manner brought into being a legal right
to make contributions
on that and no other basis and constituted a “… vested right
granted or obtained in terms of that [the
1971] Act …” within
the meaning thereof in subsection 60(4) of the
1986 Act.
15]
I
am of the view that that submission does not have merit. The concept
“right” has not been defined in the 1986 Act. The term
“right”
is sometimes used in statutory enactments as meaning a “legal
right” in the sense of the correlative to a duty
or obligation and
at other times in a wider sense of a legally recognised interest
whether it corresponds to a legal duty or not
(See:
Secretary
for Inland Revenue v Kirsch
1978(2) SA 93 (T) at 94 D –
F). Despite the fact that the legislature refrained from using the
concept “legal rights”,
I am of the view that the contextual
setting in which the word “right” is used in subsection 60(4) of
the 1986 Act strongly
suggests that it was used in the sense of a
legal right ie. a “justifiable claim on legal … grounds, to
have or obtain something
or to act in a certain way” or “a legal
… title or claim to the possession of property or authority, the
enjoyment of privileges
or immunities etc” (See:
Shorter
Oxford English Dictionary on Historical Principles
(3
rd
Edition by CT Onions)).
16] As
in terms of subsection 60(4) of the 1986 Act the vested rights ie.
“one the title of which is complete and unconditional”
(See:
D.V. Cowen: “Vested and Contingent Rights”
1949 SALJ 404
at 406) on which the respondents’ counsel placed reliance, must
have been granted or obtained under the 1971 Act it, in my view,
is
necessary to have regard to its provisions and not those of the 1986
Act. Sections 27(1) and (2) of the 1971 Act provide that
the
building and the land on which it is situated, and in respect of
which a body corporate has been established shall, subject to
the
provisions thereof, be controlled and managed by means of rules
providing for the control, management, administration, use and
enjoyment of sections and the common property and in terms of Section
27(5) would bind their owners and all people occupying any
sections.
17] Section
28(4) of the 1971 Act provided that bodies corporate were, subject to
the provisions of that act, responsible for the
enforcement of any
rules and for the control, administration and management of the
common property.
CG van der Merwe: Sectional Titles, Share
Blocks and Time-Sharing,
volume 1, at 3 – 12 expresses the, in
my view, correct opinion, that lifts form part of the common property
of sectional title
schemes. Section 29 of the 1971 Act imposed an
obligation on bodies corporate to carry out the duties assigned to
them by or under
the act and to, inter alia, properly maintain the
common property and keep it in a good state of repair (subsection
(1)(e)); control,
manage and administer the common property for the
benefit of the owners (subsection 1(j)); and keep in a state of
good service,
repair and properly maintain the machinery, fixtures
and fittings (including elevators) used in connection with the
common property.
18] Section
30 of the 1971 Act empowered bodies corporate, in the exercise of the
powers conferred upon them to, inter alia, establish
an
administrative expenses fund sufficient for the repair, upkeep,
control, management and administration of the common property;
the
payment of rates and taxes and other local authority charges on the
buildings and land; any charges for the supply of electric
current,
gas, water, fuel and sanitary and other services to the building and
land; any premiums of insurance; and the discharge
of any duty or
other obligations of a body corporate (subsection (1)(a)). Bodies
corporate were empowered to require the owners
of sections to make
contributions to such a fund for the purposes of satisfying any
claims against it (subsection (1)(b)) and to
determine the amounts
to be raised for such purposes from time to time (subsection
(1)(c)). Subsection 30(2) of the 1971 Act provided
that all
contributions so levied would be due and payable upon the passing of
a resolution to that effect by the trustees of a body
corporate and
recoverable by it from the owners of sections at the time of the
passing of such a resolution by an action instituted
in any court of
competent jurisdiction. Section 32(b) of that act, in turn, in
imperative terms placed a duty upon owners of units
to, inter alia,
“… pay all charges, expenses and assessments that may be payable
in respect of his section”. The provisions
of section 35 of that
act underlined the dominance of that duty in that it provided that if
a creditor of any body corporate obtained
judgment against it, which
remained unsatisfied despite the issuing of a writ of execution, such
creditor could apply to the court
which granted the judgment to have
the members thereof joined in their personal capacities as a joint
judgment debtors and thereafter
could recover the outstanding amount
thereof from such members on a pro rata basis in proportion to their
respective quotas but subject
to such member’s right to claim a
refund from the body corporate of any amount paid to such a creditor.
19] What
is apparent from the aforegoing is that, as regards the expenditure
incurred by bodies corporate in the discharge of their
duties of
controlling, managing and administering the use and enjoyment of
sections and common property in sectional title schemes,
those
provisions of the 1971 Act to which reference have been made in the
preceding paragraphs signified bodies corporate as the
only parties
responsible for the discharging the obligations incurred in
connection therewith and not only brought into being an
obligation on
the part of individual owners of sections to reimburse them for
amounts so expended pro rata to their respective quotas,
but also
empowered them to determine the quantum of the amount to be paid by
the individual owners of sections for that purpose.
Those
provisions, in my view, established a statutory frame-work for the
creation a clearly defined debtor and creditor relationship
between
the individual owners of sections and the body corporate of which
they were members. Rule 31.1.5 of the 1979 Rules established
a
formula according to which the liability of the respective owners of
units in the Scheme in respect of the costs of maintaining
the lifts
would be calculated and, upon determination of the quantum thereof by
the body corporate, created a right in its favour
to demand payment
thereof from the respective owners of sections. The correlative of
such right was a corresponding obligation on
the part of the
individual owners of sections to make payment of any amount so
determined to the body corporate. In my view, the
entitlement of
respective owners of sections to pay the amounts so determined and no
other is no more than a logical consequence
of the delineation of a
particular body corporate’s claim and the respective owners’
obligations in respect thereof and did
not, as was argued by the
respondents’ counsel, constitute a corresponding
legal right
not to pay on any different basis.
20] Having
arrived at the conclusion that the provisions of Sections 60(4) of
the 1986 are inapplicable I proceed to consider whether
the
provisions of Rule 31.1.5 are irreconcilable with the provisions of
Rule 31 of the Prescribed Management Rules referred to in
Section
35(2)(a) of the 1986 Act (the 1986 Rules) and are contained in
Annexure 8 to the Regulations promulgated in terms of Section
55 of
the 1986 Act and provides as follows: -
“
31. (1) The liability of owners
to make contributions, and the proportions in which the owners shall
make contributions for the
purposes of section 37 (1) of the Act, or
may in terms of section 47 of the Act be held liable for the payment
of a judgment debt
of the body corporate, shall with effect from the
date upon which the body corporate comes into being, be borne by the
owners in
accordance with a determination made in terms of section 32
(4) of the Act, or in the absence of such determination, in
accordance
with the participation quotas attaching to their
respective sections.”
21] Section
37(1) of the 1986 Act, which delineates the functions of bodies
corporate, provides inter alia, for the establishment
of an
administrative expenses fund sufficient in their view for, inter
alia, the repair, upkeep control, maintenance and administration
of
common property; the competence of requiring the owners of sections
to make contributions to that fund, whenever necessary, for
the
purposes of inter alia, satisfying any claims of that nature against
any body corporate; and authority for the raising of any
amount so
determined by levying contributions on owners in proportion to their
participation quotas. Section 47 of the 1986 Act
furthermore
establishes a procedure whereby creditors who have obtained
unsatisfied judgments against bodies corporate can procure
payment
thereof from their members in their personal capacities on a pro rata
basis in proportion to their participation quotas or
in terms of any
determinations made pursuant to Section 32(4) of the 1986 Act. Both
Sections 37(1) and 47 of the 1986 Act have almost
similarly worded
counter-parts in the 1971 Act. In the case of the former, Section 29
read with section 30 and in the case of the
latter, section 35. As
regards the liability of owners in sectional title schemes to make
contributions to administrative expenses
funds or to be held
responsible for the payment of unfulfilled judgment debts against
bodies corporate of which they are members,
section 32(4) of the 1986
Act provides as follows: -
“
(4)
Subject to the provisions of section 37 (1) (b), the developer may,
when submitting an application for the opening of a sectional
title
register,
or
the members of the body corporate may by special resolution, make
rules under section 35
by which
a
different value is attached to the vote of the owner of any section,
or the liability of the owner of any section to make contributions
for the purposes of section 37 (1)(a) or 47 (1) is modified
.
Provided that where an owner is adversely affected by such a
decision of the body corporate, his written consent must be
obtained:”
(The
two further provisos are not relevant for the purposes of this
judgment)
Save
that the reference to the numbers of the sections therein differ, the
underlined passages are identical to the provisions of
Section 24(3)
of the 1971 Act, the implementation whereof gave rise to the passing
of the 1979 Rules which encompassed Rule 31.1.5
and remained in force
in terms of the provisions of Section 60(8) of the 1986 Act unless
irreconcilable with present Management Rrule
31.1.
22] As
the phrase “irreconcilable with” (the Afrikaans equivalent
whereof is “onbestaanbaar met”) in subsection 60(8) of
the 1986
Act has not been statutorily defined, it must be given its ordinary
everyday dictionary meaning namely “not able to be
reconciled;
uncompromisingly conflicting; incompatible” (Complete and
Unabridged Collins English Dictionary, sv “irreconcilable”);

“of statements, ideas, etc that cannot be brought into harmony or
made consistent; incompatible” (The Oxford English Dictionary);

“incapable of being brought into harmony or adjustment;
incompatible …” (The Random House Dictionary of the English
Language
(Unabridged Edition) sv “irreconcilable”); “strydig
met; … onverenigbaar met” (Handwoordeboek van die Afrikaanse
Taal
sv “onbestaanbaar”).
Bearing
in mind that the present Management Rule 31.1 merely echoes the
provisions of subsections 32(3)(c) and (4) of the 1986 Act,
and Rule
31.1.5 is the result of the application and implementation of the
almost identically worded subsections 24(2)(c) and (3)
of the 1971
Act, they in my view are clearly harmonious, consistent and
compatible.
23] Advocate
Gassner, who appeared for the applicants, based her submission that
those Rules are irreconcilable thereon firstly, that
Rule 31.1.5
provides for the collection of contributions to the costs of the
maintenance of lifts in the residential component of
the Scheme on a
basis other than the participation quotas of the respective sections;
secondly, that the present Management Rule
31.4 provides for a
deviation from the norm that contributions are determined on the
basis of the participation quotas of sections
only if the provisions
of Section 32(4) have been complied with and that they have not; and
thirdly that the formalities prescribed
by Section 24(3) of the 1971
Act permitting a deviation from the norm that contributions are to be
determined on the basis of the
participation quotas of the different
sections are materially different to those required by Section 32(4)
of the 1986 Act.
In
my view the first ground of objection does not have substance because
the provisions of Section 24(3) of the 1971 Act specifically
permitted the making of rules that deviated from the default position
that contributions were to be made on a basis of the participation
quotas of sections. The second ground of objection, in my view, also
does not have merit. Whilst the statement that the provisions
of
Section 32(4) have not been complied with is factually correct it is
of no significance as its provisions apply only to special
resolutions taken
after
the commencement on 1 June 1988 of the
1986 Act and Rule 31.1.5, which derives its continued existence from
the savings and transitional
provisions contained in Section 60 of
the 1986 Act, had not been in operation before then. In my view,
also the third ground of
objection cannot be upheld. Whilst it must
be conceded that the requirements for the passing of unanimous
resolutions under the
1986 Act appear to be less stringent that those
under the 1971 Act, and Section 32(4) of the 1986 Act introduced the
requirement
of the written consent of any owner adversely affected by
any decision taken in terms thereof, subsection 60(8) of the 1986 Act
envisages
merely reconcilability and not absolute similarity. I in
view of the aforegoing, incline to the view that Rule 31.1.5 has
remained
of full force and effect and that the applicant has failed
to show that it is entitled to an order in terms of prayer 1 of the
Notice
of Motion.
24] That
conclusion necessitates an enquiry into whether, as claimed in the
alternative, Rule 31.1.5 of the 1979 Rules offends against
the
requirements of reasonableness contemplated in Section 35(3) of the
1986 Act which provides as follows: -
“
Any management or conduct rule made
by a developer or a body corporate shall be reasonable, and shall
apply equally to all owners
of units put to substantially the same
purpose.”
It
is to be noted that the 1971 Act did not contain a similar provision.
25] In
my view the legislature intended the provisions of Section 35(3) of
the 1986 Act to operate only
in futuro
. That conclusion is
predicated on the following considerations. Firstly, its
compatibility with the provisions of Section 12(2)(b)
and (c) of the
Interpretation Act, No 33 of 1957. Secondly, its harmoniousness with
the well-known rule of construction that no
statute is construed so
as to have retrospective operation - in the sense of taking away or
impairing vested rights acquired under
existing laws - unless the
legislature manifested a clear intention to that effect (See:
Bartman v Dempers
1952(2) SA 577 (A) at 580 B – C;
Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v
Chairman National Transport Commission and Others: Transnet Ltd
(Autonet Division) v Chairman National Transport Commission
1999(4) SA 1 (SCA) at 7 A). If Section 35(3) were to be construed
as operating retrospectively its effect would derogate from
the right
vested in members of bodies corporate by Section 24(3) of the 1971
Act to have modified the liability of owners of sections
to make
contributions for the purposes of Sections 30(1) or 35 thereof by
means of unanimous resolutions and without having had to
adhere to
considerations of reasonableness and equal applicability to all
owners of sections. Thirdly, the absence of any features
indicative
of a contrary intention in the transitional provisions of the 1986
Act. The effect of a retrospective operation of the
provisions of
Section 35(3) of the 1986 Act would be to introduce an additional
requirement for the continued operation of rules
passed under the
1971 Act. It not only appears to be logically implausible that the
legislature could have intended the preservation
of rules which would
immediately become assailable on the basis of non-compliance with the
provisions of Section 35(3), but one at
the least would have expected
an express reference thereto in Section 60(8) of the 1986 Act if that
had been the intention.
26] I
have accordingly come to the conclusion that the provisions of
Section 35(3) of the 1986 Act do not find application to rules
which
derive their continued existence from the transitional provisions
contained in Section 60(8) of the 1986 Act. Accordingly,
the
applicant, in my view, is not entitled to an order in terms of prayer
2 of the Notice of Motion either.
26] In
the premises the application is dismissed with costs. Such costs are
to be determined on a party and party basis and shall
include the
costs of the employment of two counsel.
______________
D.
VAN REENEN