Body Corporate of the Shaftesbury Sectional Title Scheme v Estate of the late Wilhelm Rippert and Others (4542/02) [2002] ZAWCHC 15; [2003] 2 All SA 233 (C) (24 March 2002)

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[2002] ZAWCHC 15
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Body Corporate of the Shaftesbury Sectional Title Scheme v Estate of the late Wilhelm Rippert and Others (4542/02) [2002] ZAWCHC 15; [2003] 2 All SA 233 (C); 2003 (5) SA 1 (C) (24 March 2002)

IN THE HIGH COURT OF
SOUTH AFRICA
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
REPORTABLE
In the matter between:
Case No: 4542/02
THE
BODY CORPORATE OF THE SHAFTESBURY
SECTIONAL
TITLE SCHEME
Applicant
And
THE
ESTATE OF THE LATE WILHELM RIPPERT
First
Respondent
ANNE
ELIZABETH RIPPERT N.O.
Second Respondent
ANNE
ELIZABETH RIPPERT
Third Respondent
ALL
PERSONS HOLDING TITLE
Fourth
Respondent(s)
Under
First or Second or Third
Respondents
to Flat No 16,
Shaftesbury
Flats,Tramway Road
Sea
Point
ALL
PERSONS OCCUPYING
Fifth
Respondent(s)
Flat
No 16, Shaftesbury Flats
Tramway
Road, Sea Point
THE
MASTER OF THE HIGH COURT
Sixth Respondent
JUDGMENT
DELIVERED ON THIS 24
TH
DAY OF MARCH 2002
WILLE,
AJ:
One of
the main issues to be determined in this opposed application is
whether this court is entitled to issue out an ejectment order
against a person or persons who continually contravene the "conduct
rules" imposed by a Body Corporate established in terms
of the
Sectional Titles Act, No. 95 of 1986 (hereinafter referred to as the
"Act").
In
this connection the Applicant sought a final interdict against the
Respondents and in the event of non-compliance therewith an
order for
the temporary ejectment of the Respondents, pending compliance
with the terms of the interdict. In the alternative,
Applicant sought
a prohibitory interdict against the Respondents and in the event of
non-compliance therewith, leave to apply for
an order holding Second,
Third, Fourth and Fifth Respondents in “contempt of court” and
authorizing warrants for their arrest
and committal to imprisonment
for a period, or periods, to be determined by court.
Applicant
is the body corporate of the sectional title scheme and is
responsible, inter alia, for the enforcement of the Applicant's
conduct rules. First Respondent is the estate of the late Wilhelm
Ludwig Rippert, the registered owner of the sectional title flat
known as Flat No 16, Shaftesbury Flats, Tramway Road, Sea Point
(hereinafter referred to as the “flat”). Second Respondent
is
Anne Elizabeth Rippert N.O., cited in her representative capacity as
the executrix of the First Respondent. Third Respondent
is Anne
Elizabeth Rippert cited in her personal capacity. Fourth
Respondent is “all persons holding title under or through”
the
First, Second or Third Respondent in and to the flat. Fifth
Respondent is “all persons occupying” the flat , under or
through
the First, Second, Third or Fourth Respondent. Sixth Respondent is
the Master of the High Court.
First,
Second and Third Respondent were not represented and did not oppose
the relief sought by the Applicant. The Fourth and Fifth
Respondent opposed the relief sought and requested an order
dismissing the application together with the appropriate order as to
costs. The Applicant was represented by Mr. Hack and the Fourth and
Fifth Respondents were represented by Mr Taylor.
A
careful analysis of the Applicant’s founding papers revealed a
chronological and meticulous record of a series of contraventions
of
the conduct rules by the occupants of the flat, during the period
November 1998 up to and including the 28
th
January 2002.
These contraventions included allegations of unlawful activities not
limited to drug dealing and prostitution.
The
Fourth Respondent in his answering affidavit identified himself as
Isa Johaar, and averred that a sale agreement had been concluded
with
the Third Respondent on the 22
nd
March 2002. The
salient terms of the sale agreement (herein after referred to as the
second sale agreement) provide for the sale
of the flat to Mr Johaar
for the purchase consideration of R100 000,00 payable on registration
of transfer. Possession and vacant
occupation of and in flat was
tendered with effect from the 1
st
April 2002.
The
Fifth Respondent filed opposing affidavits conceding that they were
all employed as "escorts" and they identified themselves
as
Shireen Khan, Tyrone Jacobs and Nazeema Lee. They all alleged that
they commenced renting the flat from the Fourth Respondent,
with
effect from the 1
st
April 2002 and denied that they had
contravened the conduct rules in any manner or at all.
The
Applicant in reply filed a similar sale agreement to the “sale
agreement” filed by the Fourth Respondent (herein after referred
to
as the “first sale agreement”). The first sale agreement was
ostensibly concluded on the 4
th
December 2000.
Coincidentally the seller was the Third Respondent and the purchaser
was S Fortune. The sale price was reflected
as R100 000,00 payable on
registration of transfer. Possession and vacant occupation was
tendered on registration of transfer.
Further
affidavits were filed in reply confirming that transfer had not been
registered into the name of S Fortune. Further transfer
had not been
registered into the name of the Fourth Respondent. No levy clearance
certificates had been applied for in anticipation
of registration of
transfer. These latter affidavits were filed in response to an
unsigned affidavit filed on behalf of the conveyancing
attorney
acting on behalf of the Fourth Respondent suggesting that
registration of transfer in connection with the “second sale
agreement” was anticipated during the latter part of July 2002.
The
chairperson of the Applicant further confirmed in reply, supplemented
by an affidavit from one of the residents of a nearby flat,
that the
unlawful behaviour and flouting of the body corporate rules by the
occupants of the flat had steadily increased since the
1
st
April 2002. The occupants of the flat were suspected of being
involved in prostitution and dealing in narcotic drugs.
Section
35(2)(b) of the Act provides that:
“
The rules
shall provide for the control, management, administration, use and
enjoyment of the sections and the common property, and
shall comprise
conduct rules, prescribed by regulation, which rules may be
substituted, added to, amended or repealed by the developer
when
submitting an application for the opening of a sectional title
register, and which rules may be substituted, added to, amended
or
repealed from time to time by special resolution of the body
corporate……………….…….”
Furthermore,
in terms of Section 35(4) of the Act:
“
The rules
referred to in subsection (2) shall as from the date of establishment
of the body corporate be in force in respect of the
building or
buildings and land concerned, and shall bind the body corporate and
the owners of the sections and any person occupying
a section.”
Section
38(j), provides furthermore, that:
“
The body
corporate may exercise the powers conferred upon it by or under this
Act or the rules, and such powers shall include the
power to do all
things reasonably necessary for the enforcement of the rules and for
the control, management and administration of
the common property.”
In
addition, Section 39(i) of the Act provides that:
“
The
functions and powers of the body corporate shall, subject to the
provisions of this Act, the rules and any restriction imposed
or
direction given at a general meeting of the owners of section, be
performed and
exercised by the
trustees of the body corporate holding office in terms of the
rules".
The
main “probe” by Mr Taylor on behalf of the Fourth and Fifth
Respondents was focused on the apparent lack of locus standi of
the
Applicant, coupled with the submission that there was no contractual
nexus between the Applicant and the Fourth and Fifth Respondents
respectively in so far as the Applicant's conduct rules were
concerned. This contention was also linked with the suggestion that
the Applicant had not made out a proper case for any relief as
against the Fourth and Fifth Respondents in its founding papers.

It was contended that any case which Applicant may have made out
against Fourth and Fifth Respondents only surfaced in reply.
The
Applicant adopted a resolution prior to launching the application
authorizing the deponent to depose to the founding affidavit
in
support of the application. It was submitted on behalf of the Fourth
and Fifth Respondents that this resolution bears scrutiny.
In this
connection it was contended that the necessary quorum was not present
when the resolution was passed by the Applicant.
In
my view there is no merit in this submission as the minutes of the
meeting at which the resolution was adopted showed the contrary.

Further, in reply, an affidavit was tendered which cured the
purported defects to which the Fourth and Fifth Respondents alluded.
Mr
Taylor further submitted that there was no contractual nexus between
the Applicant and the Fourth and Fifth Respondents respectively
and
accordingly the conduct rules did not apply to the Fourth and Fifth
Respondents. It was submitted in the alternative and in
any event
that the Applicant had failed in its founding papers to refer to any
contraventions of the conduct rules by the Fourth
and Fifth
Respondents after the 1
st
April 2002.
The
contraventions of the conduct rules (numerous as they were) after the
1
st
April 2002, were to be found in the Applicant’s
replying papers. Elaborating on this submission, Mr Taylor argued
that the court
was not entitled to examine and take into
consideration averments made by the Applicant in its reply as against
the Fourth and Fifth
Respondents.
Mr
Hack on behalf of the Applicant submitted that no new case had been
made out against the Fourth and Fifth Respondents in reply
and the
replying affidavits were filed for the specific purpose of dealing
with the averments by the Fourth and Fifth Respondents
in their
answering affidavits.
The
appropriate test to be applied was clearly illustrated by Nestadt, J
in
S
hephard v Tuckers Land and Development Corporation
(Pty) Ltd
1978 (1) SA 173
(W)
at page 177 as
follows:
“
It is
founded on the trite principle of our law of civil procedure that all
the essential averments must appear in the founding affidavits
or the
courts will not allow an applicant to make or supplement his case in
his replying affidavits and will order any matter appearing
therein
which should have been in the founding affidavits to be struck
out.”…………….
……………………………………………………………………………………………………
.
“This is not however
an absolute rule. It is
not the law of the Medes
and
Persians
. The court has a discretion to allow new matter to
remain in a replying affidavit, giving the respondent the opportunity
to deal
with it in a second set of answering affidavits.”
Coetzee,
J in
Triomf Kunsmis (Edms) Bpk v AE & CI Bpk en Andere
1984
(2) SA 261
at 269
illustrates the principle in this way:
“
Dit is een ding om
slegs ekstra feite ter ondersteuning van ‘n bepaalde
oorsaak van aksie, òf
vir die eerste keer aan te haal in ‘n repliserende verklaring.
Dis
‘n ander ding om geheel en al bollemakiesie te slaan
ten
opsigte van gedingsoorsaak wat die gedingvoering in ‘n totaal
verskillende rigting stuur.” (My underlining)
Applying
these principles, it seems to me that the present Applicant filed
replying affidavits which dealt essentially with the averments
made
by the Fourth and Fifth Respondents in their answering affidavits.
No
application to “strike out” any of the averments made in reply
was launched by the Fourth and Fifth Respondents and
no
substantive condonation application was launched for leave to file a
fourth set of affidavits. Mr Taylor merely made a verbal
request from
the bar at a very late stage in the proceedings for leave to file
further papers. Although, therefore, it is in some
respects
correct that the Applicant did expand upon its reasons and
introduced some new matter in its replying affidavits, in
my view,
it was quite entitled to do so.
The
defences by the Fourth and Fifth Respondents are so improbable that
they can safely be rejected. The occupants of the flat
admitted
that they were employed as escorts. The security register at the
entrance to the block of flats showed a constant stream
of visitors
to the flat during all hours of the day and night. The Applicant was
never notified of any changes in respect of the
occupants of the flat
and the situation grew steadily worse after the 1
st
of
April 2002. The terms of the first sale agreement were in direct
conflict with the terms of the second sale agreement. Neither
transfer had been registered. The affidavit tendered by the
conveyancer was not signed. No levy clearance certificates had been
requested.
An
open tender was made by Mr Taylor on behalf of the Fourth and Fifth
Respondents not to participate in any unlawful conduct, but
no tender
was made to abide by the conduct rules. In the main the Applicant
sought a final interdict and in the event of non
compliance an order
for the temporary ejectment of the Respondents, pending compliance
with the provisions of the interdict. This
ejectment prayer
requires special attention by this court.
The
Spanish legal system has an interesting development in this regard.
When one purchases property in Spain, one often purchases
into some
common elements in the apartment block or the urbanization of the
block where one's property is situated. A purchaser
invariably
becomes a member of a “community of owners”. A community of
owners in Spain is regulated by a law called “Ley
de Propriedad
Horizontal” (The Law of Horizontal Property). The main objective
of the law is to regulate the administration
and maintenance of the
common elements which the private owners possess jointly.
Section
7 of the Horizontal Property Act (Act 49 of 1960), as amended,
provides in certain instances after strict compliance of certain
procedural steps, for a mechanism whereby a court may issue out a
decree depriving the owner or occupier of the right to reside in
or
use the of a flat, for a period not exceeding three years in
instances where there have been constant and continued contraventions
of the community owners rules. This is regarded by many to be one of
Spain’s most far-reaching legal reforms.
In
my view there is a pressing “social need” in South Africa to
enable " sectional title" owners and their controlling
bodies to enforce compliance with their conduct rules and in so doing
if necessary, deprive the owner and/or occupier of the right
to
reside in or use of a unit in circumstances where there is a constant
and deliberate contravention of the conduct rules, including
the
non-payment of legitimate levies imposed.
I
can find no authority for this court to grant an order for ejectment
in
the
present circumstances. Even if I am wrong in this regard,
procedurally
the
Applicant has not laid the proper foundation for such an order and
the
conduct rules of the Applicant do not provide for ejectment under
these
circumstances.
In
the result the following order is made:
Second,
Third, Fourth and Fifth Respondents are to forthwith abide by any
and all of the Applicant’s conduct rules in respect
of the
premises known as Flat No 16, Shaftesbury Flats, Tramway Road, Sea
Point.
In
the event of non-compliance with the conduct rules as mentioned
above, the Applicant is granted leave on the same papers
(supplemented
in so far as may be necessary) to apply for an order
holding Second, Third Fourth and Fifth Respondents in “contempt
of court”,
and authorising warrants of arrest and committal to
imprisonment for a period or periods to be determined by court.
Second
Respondent is to pay the costs of and incidental to this
application, on the scale as between attorney and client. Such
costs to rank jointly and severally with the cost orders as against
Fourth and Fifth Respondents, the one paying the others to
be
absolved.
4. Fourth and Fifth
Respondents are to pay the costs of and incidental to this
application, on the scale as between party and party.
Such costs
to rank jointly and severally with the cost order as against the
Second Respondent, the one paying the others to be
absolved.
WILLE
A J
13