IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORT ABLE: NO
(2) OF INT EREST TO O THER JUDGES: N
(3) REVIS ED.
DATE 23/07/2025
BODY CORPORA TE OF LA MON VILLA
(SS no 108/2012; 173/2012, 518/2012; 776/2021)
MELROSE GARDENS INVESTMENTS (PTY) LTD
And
NIYAKHA GROUP(PTY) LTD
INRE :
BODY CORPORA TE OF LA MON V ILLA
(SS no 108/2012; 173/2012, 518/2012; 776/2021}
MELROSE GARDENS INVESTMENTS (PTY) LTD
A nd
NIYAKHA GROUP (PTY) LTD
CASE NO : A270/2023
First Appellant
Second Appellant
Respondent
First P laintiff
Second P laintiff
Defendant
D elivered: This Judgment is handed down electronically by circulation to the Par
ties/their legal representatives by email and by uploading to Caselines. The date and
time of hand-down is deemed to be 14:00 on 23 July 2025.
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JUDGMENT
LENY Al J ( MUDAU ADJP and BAQWA J CONCURING)
[1] This is an appeal against the whole judgment and order granted by the High
Court on the 18th July 2023. The leave to appeal was granted by the Supreme
Court of Appeal on the 10th August 2023.
[2] The appellants contend that the court a qua erred in upholding the exception
brought by the respondent on the basis that the appellants amended particulars
of claim lack the averments necessary to sustain a cause of action and should
have dismissed the exception.
[3] The appellants aver that they claimed unliquidated damages suffered by them
as a result of the respondent's defective, unworkmanlike and unprofessional
construction of the scheme 'LA MON VILLA' in the amount of R2 082 255.00,
due and payable by the respondent to the first appellant.
[4] The appellants submit that if regard is had to the exception, the compliant ap
pears to be that no cause of action is pleaded or made in favour of the second
appellant. They concede this point, however, contend that the second appellant
seeks no relief against the respondent. It is further submitted that the second
appellant has only been joined to the proceedings because it has a direct and
substantial interest in the outcome of the action.
[5] The appellants contend that the fact that the prayer at the end of the particulars
of claim states that the "Plaintiffs pray for judgment against defendant" is of little
consequence. The substantive relief sought as opposed to the preface to the
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relief, is for "Payment by the Defendant to the First Plaintiff in the amount of R2
082 255. 00."
[6] The appellants aver that the particulars of claim do set out the averments nec
essary to sustain a cause of action by the first appellant against the respondent.
They submit that in this regard, the first appellant's claim is clear and unambig
uous in the particulars of claim:
6.1 The first appellant is the body corporate of a sectional title scheme
known as "LA MON VILLA";
6.2 As the body corporate, it is responsible for the maintenance, upkeep and
repair of the common property of the sectional title scheme in terms of
Section 3(1) of the Sectional Title Scheme Management Act 8 of 2011
(STSMA);
6.3 The respondent was the developer of the scheme;
6.4 The respondent constructed the scheme in a defective, unworkmanlike
and unprofessional manner;
6.5 The Respondent's conduct was wrongful per se in that its conduct
caused physical damage to the common property of the scheme , in
which case wrongfulness is presumed;
6.6 Alternately, the appellants contend that the respondent owed a legal
duty to the public to construct the scheme in a professional and work
manlike manner, which legal duty is breached. This breach of legal duty
was thus wrongful;
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6. 7 As a result of the respondent's intentional, alternatively negligent and
wrongful construction of the scheme as aforesaid, the first appellant be
came obliged to effect repairs to the common property of the scheme in
accordance with its statutory duties;
6.8 The cost of repairs in respect of the defective works, that is the first ap
pellant's damages is R2 082 255,00, for which the respondent is liable
to the first appellant.
[7] The appellants aver that the first appellant's claim against the respondent is
thus clearly and unequivocally one arising in delict. The body corporate's right
to proceed against a developer for the defective construction of a sectional title
scheme has been recognized by the courts.
[8] The appellants contend that the respondent's complaints against the first ap
pellant's claim are wide and varied. Firstly, the respondent denies that the first
appellant has an obligation for the care and maintenance of the common prop
erty. They aver that this is simply incorrect, the first appellant as the Body Cor
porate of the scheme:
8.1 Is responsible for the administration and management of the common
property for the benefit of all the owners of units in the scheme in terms
of sections 2(5) and 3(1 )(t) of the STSMA;
8.2 Is liable to be sued by owners for damage to the common property in
terms of section 2(7) of the STSMA;
8.3 Is liable for the repair, maintenance, management and administration of
the common property, including reasonable provision for future mainte
nance and repairs in terms .of section 3(1 )(a) of the STSMA;
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8.4 Must maintain all the common property and keep it in a state of good
and serviceable repair in terms of section 3(1 )(I) of the STSMA.
[9] Secondly, the respondent alleges that the particulars of claim inaccurately state
that the repairs relate to the common property but complains that the report
shows that the costs for repairs do not "at least to the full extent there" relate to
the common property.
[1 O] The appellants aver that if regard is had to the report, it is clear that it speaks
to damage to the common property. The particulars of claim at paragraph 17,
makes it clear and unequivocal that the first appellant is seeking damages from
the respondent only for the repairs necessary "to the common property ...
caused by the Defendant's intentional, alternatively negligent and wrongful act
in constructing the scheme in a defective manner as set out above." Further
more , the appellants submit that it must be accepted that there was in fact dam
age to the common property and that the first appellant's claim relates to that.
Whether the appellants will be able to prove their claim at trial in due course is
not relevant at this stage.
[11] Thirdly, the respondent makes an allegation in the exception application at par
agraph 2.14, that the repairs that the first appellant is obliged to effect are to
"remove alleged defects" and "cannot relate to 'care and maintenance' for
which the First Appellant is allegedly liable."
[12] The appellants submit that the allegation seems to suggest that the obligations
placed on the first appellant as contemplated by the STSMA do not require it to
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repair defects to the common property. They contend that this is simply incor
rect as the wording of the STSMA requires the first appellant to attend to the
care, maintenance and repair of the common property.
[13] Fourthly, the respondent makes an allegation that the damages were suffered
by the second appellant and not the first appellant. The allegation made is that
the appellants are attempting to pursue an action against the respondent to
"recover the damages which the Second Appellant was supposed to have re
covered, but which the Second Appellant cannot recover given the fact that it
concluded a sale agreement with a voetstoots clause."
[14] The appellants aver that the respondent bases this allegation on the back
ground facts pleaded by them relating to the sale agreements concluded be
tween the respondent and the second appellant. The appellants contend that if
regard is had to these facts, it is clear that they are made to foreshadow why
they obtained the Curasure report which evidenced the defective construction
works performed by the respondent on the common property. Furthermore, the
agreements between the second appellant and the respondent in no way evi
dence that the damages were suffered by the second appellant. The second
appellant purchased the units in the scheme from the respondent and did not
purchase the common property.
[15] The appellants aver that the first appellant's claim is for the damage to the
common property and not to any individual unit in the scheme . Accordingly, the
allegation that the damages are "clearly damages which the Second Appellant
will be suffering" is incorrect.
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[16] The appellants contend that in support of its allegation that the claim really be
longs to the second appellant, the respondent attached a co-operation agree
ment to its exception application. They aver that this is improper as no extrane
ous facts can be adduced to show that the pleading is excipiable. The contrac
tual relationship between the appellants cannot harm or benefit the respondent.
[17) The appellants submit that if regard is had to the co-operation agreement, it is
clear that they acknowledge that the first appellant is obliged to maintain and
repair the common property. The second appellant is simply providing the fi
nancial assistance to the first appellant to fund the legal action against the re
spondent. The agreement does not evidence that the damages were suffered
by the second appellant, it simply evidences that the second appellant is paying
for the costs of the action. Furthermore, it is submitted that it is trite that the
respondent cannot rely on a contract to which it is not privy.
[18) The appellants contend that there is nothing irregular about the second appel-
lant funding the legal action against the respondent. They aver that if the first
appellant is unable to recover the damages from the respondent, the second
appellant as the owner of vast majority of the units in the scheme, would have
to fund the repairs to the common property.
[19] The appellants submit that the particulars of claim expressly make the neces-
sary averments to sustain a delictual claim against the respondent and have
also adduced documentary proof evidencing at least prima facie the respond
ent's defective construction of the scheme .
[20] The appellants aver that the complaint by the respondent that the particulars
of claim "does not disclose a proper cause of action to make an allegation that
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the Respondent intentionally, alternatively negligently and wrongfully con
structed a scheme" because there is "no indication what the Respondent in
tended to achieve and the allegation that the Respondent acted with intent is
devoid of any particularity about what the Respondent intended to achieve" is
equally without merit.
[21] The appellants contend that this complaint by the respondent concerns the
facta probantia, which is the evidence necessary to support the primary facts.
They submit that they do not need to give particularity as to what the respondent
intended to achieve. All they need to allege is the facta probanda, which are
those facts which if proven, would sustain a claim against the respondent.
[22] The appellants submit that all the primary facts have been pleaded, that is the
five essential elements of a delictual claim which are conduct, wrongfulness,
fault, causation and damages. These facts have been evidenced in the form of
the reports attached to the particulars of claim. Furthermore, they submit that
the only fact that requires some additional clarification is that of wrongfulness.
It is submitted that it is settled law that if wrongfulness cannot be inferred, the
plaintiff (appellant) must allege that the defendant (respondent) had a legal duty
to the plaintiff which legal duty has been breached. The appellants aver that the
wrongfulness can be presumed because the respondent's conduct caused
damage to the common property.
[23] The appellants further submit that, in the alternative, it is pleaded that the re
spondent:
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23.1 owed the first appellant a legal duty to construct the scheme in a pro
fessional and workmanlike manner , and ensure that the scheme was
free of defects;
23.2 breached this legal duty and
23.3 rendered its conduct wrongfully.
[24] The appellants submit that the above detailed legal duty is recognized in our
law, and the Supreme Court of Appeal has affirmed that the body corporate has
a right to claim damages against a developer for defective design and construc
tion of the structures on the common property.
[25] The appellants contend that there is no ambiguity to the particulars of claim. It
is settled law that the defendant (respondent) cannot complain about less than
perfect pleadings in order to raise technical and formal objections unless it
causes prejudice to the defendant. They submit that the respondent has not
claimed any prejudice and the respondent knows precisely what case it must
meet.
[26] The appellants submit that the argument by the respondent that they should
have rather brought an application to amend their particulars of claim instead
of bringing an appeal is rather belated.
[27] The appellants submitted in court that the court should uphold the appeal of the
first appellant and the respondent be ordered to pay the costs of the main ex
ception, the application for leave to appeal, the petition to the Supreme Court
of Appeal and the costs of the Full Court Appeal. The appeal of the second
appellant should be dismissed with each party paying their own costs.
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[28] The respondent submits that the appellants have conceded that the second
appellant does not have a cause of action against it and that there is in fact only
a cause of action pursued on behalf of the first appellant. It is further submitted
that the second appellant is the driving force behind the litigation as it is funding
the first appellant's litigation against it. It is submitted that this is a case of mis
joinder as the second appellant should not have been added to the matter from
the onset.
[29] The respondent contends that the first appellant in the particulars of claim is
claiming damages of the property belonging to the second appellant. It is sub
mitted that there is no resolution authorizing the first appellant to claim on behalf
of the second appellant. It is therefore impermissible for the first appellant to
recover damages on behalf of the second appellant.
[30] The respondent contends that it is clear that the damages dealt with in the par
ticulars of claim relate to the construction of the units, and suddenly in para
graph 14 of the particulars of claim the common property is introduced as part
of the damages .
[31] The respondent avers that it is expressly alleged in paragraph 1.2 of the partic
ulars of claim that the first appellant is the owner of the common property in the
scheme. It is then also alleged that the first appellant is responsible for the
maintenance, upkeep and repair of the common property. Furthermore, it must
be trite that the common property is in fact owned by all the unit owne rs who
each have an undivided share in the common property.
[32] The respondent submits that ownership of the common property is to be distin
guished from the duty of the Body Corporate to maintain the common property.
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It is further submitted that the kind of alleged damages which the first appellant
is attempting to recover from it are not anticipated expenses for maintenance,
upkeep or repair, but in fact relate to the alleged costs for the complete redesign
and reconstruction of the entire property, including the units owned by the sec
ond appellant.
[33] The respondent contends that .it is abundantly clear that the costs in the reports
do not, at least to the full extent thereof, relate only to the common property. If
the costs relate to the individual units, then the second appellant and not the
first appellant should have been the one attempting to make a recovery from it.
[34] The respondent submits that clearly the damages relate to the entire scheme,
or at the very least the units, but the first appellant's duty is only with reference
to the common property, where the focus is on care and maintenance.
[35] The respondent contends that the first appellant failed to allege a foundation
for the broad legal duty of care it relied upon. It is submitted that such a broad
legal duty of care by a developer to the public at large is untenable. It is sub
mitted that in order to make out a proper case in the pleadings, it is necessary
for a party relying upon a duty of care to plead all the facts on which it wishes
to rely on to enable the court to decide whether policy considerations or the
boni mores warrants an extension of liability. It is further submitted that the first
appellant had made extremely sketchy allegations relating to the existence of
a legal duty of care in paragraph 17B of the particulars of claim.
[36] The respondent avers that it is wrong for the first appellant to argue that a Body
Corporate's right to proceed against a developer for defective construction of a
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Sectional Title Scheme , based upon a legal duty, has been recognized in a
number of matters.
[37] The respondent submitted in court that the appeal must be dismissed against
both appellants with costs on a punitive scale as the court a quo had correctly
upheld the exception.
[38] The Supreme Court of Appeal (SCA) in the matter of Central Developments
Tshwane (Pty) Ltd and Another v Body Corporate, Twee Riviere Aftree
Oord (635/2019) [2020] ZASCA 107 (21 September 2020) held that section
2(7)(b) of the STSMA empowers a body corporate to sue a developer in respect
of any defects in the design and construction of foundations for structures situ
ated on the common property, without the need for a special resolution in terms
of section 2(7)(e) of the STSMA. The court further clarified that the section en
ables the body corporate to act on behalf of all the unit owners, who jointly hold
the common property in individual shares. Requiring all owners to sue individ
ually or jointly would simply be impractical. This statutory power to sue the body
corporate aligns squarely with the obligations placed upon the body corporate
in terms of sections 3(1 )(a)(i) and 3(1 )(i) of the STSMA , to maintain, repair and
insure the common property. The court further emphasised that section 2(7)(b)
of the STSMA affords a body corporate the right to sue for damages to the
common property regardless of whether the responsible party is the developer,
architect, builder or any other service provider.
[39] In the matter of SM Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd
and Another 2000 (4) 1019 (SCA)@ para 7, the SCA stated that:
12
" ... , it has to be accepted that in general a builder does have a legal duty to
both the building owner and to third parties to refrain from building something
which is manifestly unsafe ...
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[40] The SCA in the matter of Feldman NO v EMI Music SA (Pty) Ltd/ EMI Pub
lishing SA (Pty) Ltd (268/2008) [2009] ZASCA 75; 2010 (1) SA 1 (SCA) ;
[2009] 4 All SA 307 (SCA) 91 June 2009) @ para 7 held that:
" ... An excipient is obliged to confine his complaint to the stated grounds of his
exception. As in Collin, the exceptions here contain no mention of non-joinder.
They accordingly fell to be decided on the grounds taken, namely that the par
ticulars of claim did not contain averments which founded the claim for relief.
Nor in any arguing the appeals, did counsel for either party present argument
based on the ground of non-joinder.
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[41] In the matter of ljeoma and Another v University of Fort Hare (2174/2021)
[2023] ZAECMKHC 88 (17 August 2023)@ para 18 the court held that:
" ... While pleadings must be drawn carefully, the rules do not require draffing
perfection and courts have been enjoined not to read them pedantically."
[42] Turning to the matter before us, the appeal by the second appellant seems to
have lost steam. The appellants have conceded that there is really no case
made out by the second appellant in the particulars of claim and it is only cited
because it has an interest in the outcome of the matter as the majority owner
of 21 units in the scheme.
[43] It was clearly indicated in the matter of Central Developments Tshwane that
a body corporate has the power to act on behalf of all the unit owners without
a resolution as provided for in section 2(7)(b) of the STSMA. The explanations
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given by the appellants for the second appellant to be a party in the proceedings
do not find favour with me as the first appellant is statutorily mandated to act
on behalf of all the unit owners in the scheme which includes the second ap
pellant. I am of the view that the exception against the second appellant was
correctly upheld by the court a qua, and the appeal of the second appellant
stands to be dismissed.
[44] With regard to the appeal of the first appellant, section 2(7)(b) of the STSMA
and the SCA in the matter of Central Developments Tshwane, make it clear
that the body corporate has the right and legal standing to sue a developer for
defects and damages in the design and construction of foundations for struc
tures situated on the common property. The first appellant is within its legal
rights to institute action against the developer and the challenge by the re
spondent in this regard is completely misguided.
[45] The particulars of claim do make averments that there is damage on the com
mon property, and it is the responsibility of the first appellant to maintain, repair
and insure the common property. The challenge by the respondent that the first
appellant made extremely sketchy allegations relating to the existence of a le
gal duty of care in of the particulars of claim is of no moment. It is trite that the
pleadings do not have to be perfectly or elegantly drafted. All that is required is
for the pleadings to be clear so that the defendant knows the case it is required
to answer to.
[46] Lest we forget, in the particulars of claim, the plaintiff only has to allege the
material facts that it must prove to support its case (facta probanda). These are
the core allegations that form· the basis of its claim. The first appellant has done
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that in its particulars of claim. The challenge by the respondent seems to sug
gest that the first appellant needed to allege the (facta probantia), which are the
facts presented as evidence to prove the material facts, especially with regard
to the allegation of duty of care.
[47) On proper consideration of the particulars of claim, the arguments by the par-
ties, the STSMA and the stated case law in the judgment, I am convinced that
the particulars of claim do make out the necessary averments to sustain a
cause of action by the first appellant against the respondent.
[48] Under the circumstances the following order is made:
1. The appeal of the first appellant is uph,eld with costs on scale B;
2. The order of the court a qua is set aside and replaced with the following:
The exception against the first plaintiffs particulars of claim is dismissed
with costs on scale B.
2. The appeal of the second appellant is dismissed with costs on scale B .
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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Appearances
Counsel for Appellants
Instructed by
Counsel for Respondent.
Instructed by
Date of hearing
Date of Judgement
Adv JM Hoffman
Swartz Weil van der Merwe Greenberg
Adv MP van der Merwe SC
Couzyn Hertzog & Horak Attorneys
23 April 2025
23 July 2025
16