2
remove the power to appoint an administrator to take over the affairs of a
sectional title scheme from the High Court and to assign that power to the
Magistrates’ Court. This court has apparently assumed, in at least three cases
decided since the 2011 Act came into effect, that section 16 had no impact on
this court’s power to appoint an administrator, but none of those cases
engaged at any length with text of the 2011 Act itself (see Gert v Body
Corporate of Albany Court [2013] ZAGPJHC 69 (8 March 2013) (“Gert”);
Dibakoane N.O v Van den Bos [2021] ZAGPJHC 652 (17 August 2021)
(“Dibakoane”) and Ex Parte van den Bos NO [2023] ZAGPJHC 443 (9 May
2023) (“Van den Bos”). Having myself considered the text of the 2011 Act
closely, I am driven to conclude that the High Court does retain the jurisdiction
to appoint an administrator.
2 The applicant, Spotprops, owns a section of the Bridgetown Sectional Title
Scheme. It regards the Scheme’s affairs to be in disarray, and considers that
the first respondent, the Bridgetown Body Corporate, can no longer be trusted
to manage them. Spotprops applies to me to order that Bridgetown’s affairs
be placed under the control of an administrator. Bridgetown resists such an
order on its merits, chiefly on the basis that such an order would be
inappropriate because, after a period of mismanagement, Bridgetown has now
been able to begin regularising its affairs with the assistance of an executive
managing agent, who administers the Scheme’s affairs under the direction of
the Body Corporate. Bridgetown says that the appointment of an
administrator, whose powers would supplant those of the executive managing
agent and the Body Corporate, is not justified in light of the progress it has
made with its executive managing agent.
3
3 Bridgetown also raises a jurisdictional objection. It says that Spotprops should
have brought this application in the Magistrates’ Court. Bridgetown accepts
that, historically, under section 46 (1) of Sectional Titles Act 95 of 1986 (“the
1986 Act”), the power to appoint an administrator was vested in the High
Court. However, Bridgetown says that this position changed when the 2011
Act repealed section 46 of the 1986 Act, and replaced it with section 16 of the
2011 Act.
4 Section 16 of the 2011 Act provides that any one of a defined group of
interested parties “may apply to a Magistrate's Court for the appointment” of
an administrator. In setting out the process for considering such an
application, in defining the court’s powers in dealing with it, and in setting out
the jurisdictional requirements for the exercise of that power, section 16 makes
repeated and exclusive reference to the “Magistrate's Court”. Bridgetown
argues that, in light of the express repeal of section 46 of the 1986 Act, and
the 2011 Act’s repeated and explicit reference to the Magistrates’ Court, the
2011 Act’s purpose is clear: the power to appoint an administrator is removed
from the High Court and assigned to the Magistrates’ Court.
5 Spotprops disagrees. It relies on the well-known presumption against statutory
ousters of a court’s jurisdiction, except in the clearest of cases, and it argues
that the Body Corporate’s interpretation of the 2011 Act is inconsistent with
the right of access to court in section 34 of the Constitution,1996. Spotprops
adverts to the fact that the 2011 Act assigns a multitude of powers specifically
to the High Court, and argues that the meaning of section 16 is merely that
the power to appoint an administrator can be exercised by the Magistrates’
4
Court concurrently with the High Court. It relies on the decisions in Gert and
Dibakoane, each of which asserts that conclusion.
6 In my view, the central question is what section 16 of 2011 Act means on its
own terms. That meaning has to be apprehended by the ordinary principles of
statutory interpretation: the effect of the 2011 Act must be determined by a
consideration of the ordinary grammatical meaning of its text, the context in
which section 16 appears and the purpose of the provision read in light of the
overall purpose of the statute ( Road Traffic Management Corporation v
Waymark Infotech (Pty) Ltd 2019 (5) SA 29 (CC), paragraph 29). It is to that
exercise, which does not appear to have been undertaken in either Gert or
Dibakoane, which I now turn.
Section 16 of the 2011 Act
7 Section 16 provides as follows –
16 Appointment of administrators
(1) A body corporate, a local municipality, a judgment creditor of the body
corporate or any owner or other person having a registered real right in
or over a unit may apply to a Magistrate's Court for the appointment of a
suitably qualified and independent person to serve as the administrator
of the body corporate.
(2) (a) If a Magistrate's Court on hearing the application referred to in
subsection (1) finds -
(i) evidence of serious financial or administrative
mismanagement of the body corporate; and
(ii) that there is a reasonable probability that, if it is placed under
administration, the body corporate will be able to meet its
obligations and be managed in accordance with the requirements
of this Act,
the Magistrate's Court may appoint an administrator for a fixed
period and on such terms and conditions as it deems fit.
(b) The remuneration and expenses of the administrator are
administrative expenses contemplated in section 3 (1) (a).
(3) An administrator has, to the exclusion of the body corporate, such
powers and duties of the body corporate as the Magistrate's Court
5
directs and must exercise these powers to address the body corporate's
management problems as soon as reasonably possible.
(4) The administrator must-
(a) convene and preside at the meetings required in terms of this Act
and the scheme's rules; and
(b) lodge with the ombud-
(i) copies of the notices and minutes of meetings; and
(ii) written reports on the administration process every three
months or at such shorter intervals as the Magistrate's Court may
direct.
(5) A Magistrate's Court may, on application by the administrator or any
person or body referred to in subsection (1)-
(a) remove the administrator from office;
(b) replace the administrator;
(c) extend the term of the administrator's appointment or amend his or
her terms of appointment; and
(d) may make such order for the payment of costs as the Magistrate's
Court considers fit.
(6) The provisions of subsection (4) apply, with the necessary changes
required by context, to the administrators appointed in terms of section
46 of the Sectional Titles Act.
8 The plain text meaning of section 16 is that the power to appoint and remove
administrators is assigned to the Magistrates’ Court. Ms. de Wet, who
appeared for Spotprops, submitted, however, that the word “may” in
subsection 16 (1) preserved the power of the High Court to appoint
administrators. Ms. de Wet argued that the use of the word “may” means that
a person seeking to appoint an administrator may apply either to the
Magistrates’ Court or the High Court for that relief.
9 There is no indication of this in the text of section 16 itself. Reading section 16
in isolation, the most natural meaning of the word “may” is that those persons
section 16 (1) defines as having standing to seek the appointment of an
administrator “may [or may not]” apply to the Magistrates’ Court for that relief.
It is not that either the High Court or the Magistrates’ Court “may” appoint such
It is not that either the High Court or the Magistrates’ Court “may” appoint such
an administrator. If the word “may” can sensibly be given the meaning for
6
which Ms. de Wet contended, then the source of that meaning could only be
found beyond section 16 itself.
10 In advancing that case, Ms. de Wet urged me to attach significance to the
definition of the word “Court” in section 1 of the 2011 Act. There, “Court”
means “the High Court having jurisdiction”. Every other power the 2011 Act
confers on a court is assigned to the “Court”, by which is meant the High Court.
Those powers are the power to appoint a curator ad litem to institute
proceedings on a body corporate’s behalf (section 9); the power to order the
joinder of members of a body corporate in their personal capacities where a
judgment against the body corporate has been left unsatisfied (section 15);
and the power to deem a building that comprises a sectional title scheme to
have been destroyed (section 17). Ms. de Wet argued that there is no reason
why these powers would have been reserved for the High Court if the
underlying purpose of the statute was not also to allow the High Court to
appoint administrators, albeit subject to the concurrent jurisdiction of the
Magistrates’ Court.
11 Were there any basis on which to carve out the power to appoint an
administrator as particularly special or unusual in a way that would justify its
assignment to the Magistrates’ Court rather than the High Court, I would have
rejected that argument. However, I am driven to the conclusion that there is
no rational basis on which to differentiate between the powers explicitly
assigned to the High Court under the 2011 Act on the one hand and the power
to appoint an administrator on the other. The more natural reading of section
16 in the context of the 2011 Act as a whole is that all the powers granted to
7
any court under the 2011 Act are powers that may be exercised by the High
Court. In the case of the appointment or removal of an administrator, section
16 makes clear that the Magistrates’ Court may exercise that power in addition
to, rather than instead of, the High Court.
12 On that reading, which I am persuaded in the correct one, the word “may” in
section 16 of the 2011 Act really means that the statute must be construed to
read: “[in addition to being able to apply to the High Court, a] body corporate,
a local municipality, a judgment creditor of the body corporate or any owner or
other person having a registered real right in or over a unit may apply to a
Magistrate's Court for the appointment of . . . an administrator”. Although the
words “in addition to being able to apply to the High Court” do not appear in
section 16, they are necessarily implied by the use of the word “may”, read in
the context of the 2011 Act as a whole. Subsequent references to the
“Magistrate’s Court” in section 16 ought to be read as references to both the
High Court and the Magistrates’ Court.
13 That reading is reinforced, in my view, by a consideration of the purposes of
the 2011 Act. One of the purposes of the Act is to harmonise the management
of sectional title schemes with the work and power of Community Schemes
Ombud Service. That service is intended to provide fast and accessible
dispute resolution for individual members of a body corporate who take issue
with the exercise of a body corporate’s powers. Empowering a Magistrates’
Court to appoint an administrator serves the same purpose, because It
expands access to that remedy.
8
14 The trigger for the appointment of an administrator is “evidence of serious
financial or administrative mismanagement of the body corporate” (section 16
(2) (a) (i)). An application to appoint an administrator may be brought by a
local municipality, a judgment creditor of the body corporate or any owner or
other person having a registered real right in or over a unit within a sectional
ownership scheme. The purpose of giving the Magistrates’ Court jurisdiction
to appoint an administrator is clearly to widen access to that remedy. To
exclude the High Court’s jurisdiction to provide the same relief is inconsistent
with that purpose. It narrows rather than widens the range of remedial courses
of action available to someone who wishes to press for the appointment of an
administrator.
15 To hold otherwise, I would have to find some rational basis – evident from the
2011 Act itself – for differentiating between the powers explicitly assigned to
the High Court and the power to appoint an administrator. I can see no such
basis – especially not one that would justify reading section 16 to specifically
exclude the High Court’s power to appoint an administrator. Since section 16
does not explicitly provide for the Magistrates’ Court to appoint administrators
instead of, rather than in addition to, the High Court, the most natural reading
of the Act as a whole is that section 16 establishes the concurrent jurisdiction
of the High Court and the Magistrates’ Court to appoint administrators.
16 Ms. Gxogxa, who appeared for Bridgetown, argued that the legislative history
leading to the adoption of the 2011 Act strongly indicates that section 16 was
meant to exclude the appointment and removal of administrators from High
Court’s jurisdiction and to assign those functions to the Magistrates’ Court.
9
Legislative history refers to the record of the proceedings, such as committee
reports or explanatory memoranda attached to bills presented to Parliament,
before the bills ultimately become law. When interpreting any statute a court
will always treat legislative history with a degree of caution. Where a statute
contains an ambiguity, there is likely to be little in its legislative history that will
reveal a clearly expressed intention that the Act was meant to work in any
particular way. Even where a clear legislative intent does appear from a
statute’s legislative history, the fact of the ambiguity that appears in the final
text will always beg the question of why a clear intention expressed in the
drafting or deliberation process was not carried through into the text of the final
statute.
17 There may be cases in which that question is easy to answer, but this is not
one of them. What the legislative history of the 2011 Act reveals is that the Bill
as initially drafted explicitly provided for the High Court to exercise the power
to appoint or remove administrators. The deliberations over the Bill contain
references to the need to expand access to that remedy. There was a
suggestion that the power should be removed from the courts completely and
assigned to the Community Schemes Ombud Service. The final position, that
the Magistrates’ Court would have jurisdiction to appoint or remove an
administrator, was likely a compromise between these two poles of the
debate. But that tells me nothing about whether the purpose of section 16 of
the 2011 Act as finally adopted was to provide the Magistrates’ Court with
exclusive jurisdiction over the appointment or removal of administrators, or
whether the point was to allow the Magistrates’ Court to exercise that
10
jurisdiction, and that jurisdiction alone, concurrently with the High Court, which
has all the other judicial powers that the 2011 Act creates.
18 The much clearer indication of the 2011 Act’s purpose is that it grants a wide
range of powers to the High Court, without providing any indication that the
single power it assigns to the Magistrates’ Court was meant to be exercised
exclusively by that court. In the absence of any rational basis for differentiating
between the various powers the High Court exercises under the Act on the
one hand, and the power to appoint and remove an administrator on the other,
it seems to me that section 16 means that the Magistrates’ Court exercises its
jurisdiction to appoint and remove administrators concurrently with the High
Court.
19 Accordingly, I have jurisdiction to entertain Spotprops’ application. I may not
decline to exercise that jurisdiction merely because another court could have
done so (see Standard Bank of SA Ltd and Others v Thobejane 2021 (6) SA
403 (SCA) at paragraph 88). It follows that I must entertain the question of
whether Spotprops is entitled to its relief under section 16 of the 2011 Act. The
objection to my jurisdiction fails.
Ouster
20 I have reached this conclusion through a straightforward interpretation of the
2011 Act. The courts in Gert (at paragraph 2) and Dibakoane (at paragraph
63) chose a different route. Relying on the presumption against ouster clauses
(on which see, for example, Commissioner for the South African Revenue
Service and Another v Richards Bay Coal Terminal (Pty) Ltd 2025 (5) SA 617
(CC) at paragraph 69), both courts concluded that there was no explicit
11
indication that section 16 intended to “oust” the High Court’s jurisdiction to
appoint an administrator.
21 Ouster is a statutory mechanism that forbids a court from exercising a power
that it would otherwise have. Both Gert and Dibakoane presumed that there
was a pre-existing jurisdiction to appoint an administrator that the 2011 Act
might have ousted. But I think that was incorrect. There was no such pre-
existing power.
22 This is so for two reasons. The first is that South African common law has
never recognised the concept of sectional ownership of immovable property.
The common law position has always been that a building accedes to the land
on which it stands, and the owner of the land becomes the owner of the
building (see Macdonald v Radin 1915 AD 454 at 466 and 467). The common
law did not provide the legal tools necessary to divide ownership of a building
from the ownership of the land on which it stands. Still less could it cope with
the idea that different parts of a building could be owned by different people
for their exclusive use, while still other parts of a building could be held as
common property in undivided shares.
23 In order to provide for section al ownership of land and buildings, it was
necessary to enact Sectional Titles Act 66 of 1971. That legislation, and the
1986 and 2011 Acts that succeeded it, cut from whole cloth the idea that a
building or cluster of buildings could be subject to shared ownership through
a body corporate, within which each individual would own both a part of the
property under sectional ownership for their exclusive use, and an undivided
share of the common areas of the property, which may be used by everyone.
12
The power to appoint an administrator of a dysfunctional body corporate is
merely an incident of that statutory creation. It has no common law
antecedent. It follows that the power to appoint an administrator could only
have been conferred by statute.
24 Secondly, the only statute that explicitly conferred such a power on the High
Court was section 46 (1) of the 1986 Act, which the 2011 Act repealed.
Accordingly, the High Court could have no power to appoint an administrator
unless that power was set out in, or necessarily implied by, the 2011 Act itself.
25 This point may seem of little consequence, especially as I agree with the
ultimate conclusions reached in Gert and in Dibakoane. However, it is in my
view important to be clear about where the source of a judicial power lies,
especially in the context of a carefully designed statutory scheme meant to
enable group ownership of immovable property. The concept of ouster
deployed on in Gert and in Dibakoane risks obscuring rather than clarifying
that source.
The merits
26 I now turn to the merits of the application. Section 16 (2) of the 2011 Act
provides that the appointment of an administrator “may” follow upon two
findings of fact. The first is that there is “evidence of serious financial or
administrative mismanagement of the body corporate”. The second is “that
there is a reasonable probability that, if it is placed under administration, the
body corporate will be able to meet its obligations and be managed in
accordance with the requirements of this Act”. Even if both of those findings
are made, the use of the word “may” indicates that I retain a discretion not to
13
appoint an administrator if the exercise of that discretion is justified on the
facts (see, for example, Body Corporate of Stamford Hall v Molapo [2022]
ZAGPJHC 498 (3 August 2022) at paragraph 5).
27 The appointment of an administrator is a “drastic power” which should
“normally only be exercised when [the members of a body corporate] are not
in a position properly to perform the functions assigned to them” or where “the
body corporate has not elected trustees or where for some other reason the
affairs of the body corporate are not being or not capable of being
administered in the fashion that the Act contemplates”. The p urpose of
appointing an administrator is “remedial”. The idea is “that the conduct of the
affairs of the body corporate should after administration be restored to the
members of the body corporate” (see Herald Investments Share Block
(Proprietary) Limited v Meer 2010 (6) SA 599 (KZD) (“Meer”) at paragraph 46).
Meer was decided under the 1986 Act, but I think that these observations
retain their force under the 2011 Act.
28 The papers in this matter disclose a long and complex history of conflict and
mismanagement of the Bridgetown Body Corporate, including various
applications to this court, or to the Community Schemes Ombud Service,
brought by one or other faction of the Body Corporate, seeking intervention in
Bridgetown’s affairs. The papers deal with these events in the vaguest and
most general of terms, such that it is often difficult pin down each party’s case,
or the facts on which they rely to advance it. However, I be lieve that the
material facts arising from the papers are as follows.
14
29 The Bridgetown Body Corporate is a complex of 524 units in Bloubosrand,
Randburg. This application was instituted on an urgent basis in June 2022. At
that stage Spotprops had control of, or an interest in, 47 of the 524 units. Only
108 of the units (including all 47 of Spotprops’ units) were up-to-date with the
levies due to the Body Corporate . It was alleged that the Body Corporate’s
trustees had been continuously intimidated and extorted by unknown
individuals who wished to syphon off Bridgetown’s resources for their own use.
30 The mainstay of Spotprops’ case was that the vast majority of the trustees of
the Body Corporate who were then in office owed substantial sums in levies ,
and for that reason, together with the intimidation alleged, they had no motive
to do what was necessary to rehabilitate Bridgetown’s financial performance.
Spotprops said that an administrator, a Mr. George Poulton, had previously
been appointed and had taken meaningful steps towards recovering the Body
Corporate’s financial position. Mr. Poulton died in October 2021, however. His
appointment obviously lapsed when that happened. Spotprops’ case is that a
new appointment must now be made.
31 Bridgetown opposes a new appointment on the basis that the Body Corporate
had been under administration for most of the six years immediately preceding
the institution of this application. Bridgetown pointed out that Mr. Poulton had
been the second of two administrators who had run Bridgetown in the
preceding decade. Bridgetown alleged that the periods of administration
accelerated rather than abated the complex’s decline. It averred that both Mr.
Poulton and an individual they identify as his predecessor, a Mr. Sydow, had
15
neglected their duties, and had no interest in improving the complex because
they did not live there.
32 Those facts appear on affidavits filed three and a half years ago in support of
and in opposition to the urgent application. The urgent application came before
Swanepoel AJ on 10 June 2022. Swanepoel AJ granted some interdictory
relief, but he declined to appoint an administrator, and postponed that relief to
the ordinary opposed motion roll.
33 Supplementary papers followed. The material facts arising from those papers
are that successive attempts to reconstitute the Body Corporate’s board of
trustees failed when the trustees resigned en masse in March 2024.
Thereafter, on 14 October 2024, the Community Schemes Ombud Service
appointed an executive managing agent to perform the functions that the
board of trustees would otherwise have performed, subject to the Body
Corporate’s overall control. Spotprops is critical of the executive managing
agent, who it says has not been properly appointed, and who is in thrall to a
Body Corporate in which a large majority of members have not, and still have
no wish to, pay their levies. Only an administrator, Spotprops avers, can do
what needs to be done to rehabilitate Bridgetown’s affairs. This is because an
administrator, unlike an executive managing agent, need not seek the
approval of the Body Corporate to perform their functions.
34 The most recent factual material on file is contained in an affidavit filed on
Bridgetown’s behalf, dated 2 November 2025. In that affidavit, it is alleged that
the executive managing agent has started to rehabilitate Bridgetown’s affairs.
Bridgetown’s debt to the municipality has been reduced by R3 million. The
16
Body Corporate has adopted a debt collection and credit control policy to
manage its members’ arrears. Physical improvements to the common areas
of the complex have been made. Most members of the Body Corporate have
entered into arrangements with the executive managing agent to reduce their
arrears.
35 During argument, Ms. de Wet was critical of the supplementary affidavit. She
adverted to the lack of particularity given of the details of the arrangements
allegedly made with those members of the Body Corporate who are in arrears
with their levies. Ms. de Wet also pointed out that the debt owing to the City of
Johannesburg is still substantial – some R15 million.
36 Still, Spotprops elected not to reply to the supplementary affidavit . On the
ordinary rules applicable to fact-finding in applications for final relief, I would
in any event have to decide this application substantially on the version set
out in the November 2025 affidavit, unless it was so far-fetched or untenable
that it may safely be rejected. In light of these realities, Ms. de Wet could do
little to displace the probabilities that version establishes.
37 The contents of the November 2025 supplementary affidavit are neither far-
fetched nor untenable. While I accept that they lack particularity in some
respects, I must accept that Bridgetown’s debt to the City of Johannesburg
has been significantly reduced. Bridgetown’s payments to the City and to
another of its creditors are fully documented. I also have no reason to doubt
that payment arrangements have been reached with the majority of the Body
Corporate’s members. I accept that these arrangements are not fully
documented in the supplementary affidavit, but that is likely because there are
17
so many Body Corporate members who are in arrears (over 400 by Spotprops’
own reckoning). Spotprops has laid no basis to go behind the allegation that
the arrangements exist, and that they have been reached pursuant to a new
debt collection and credit control policy. Bridgetown also produces
photographic evidence of improvements to the common property made during
the tenure of the executive managing agent.
38 Still, there is no meaningful dispute that papers disclose evidence of that,
historically, the Bridgetown Body Corporate has been seriously mismanaged,
both financially and administratively. Bridgetown has been substantially in
arrears with its municipal accounts and has suffered low rates of levy
payments from its members for some years. There is also evidence that the
physical condition of the property has deteriorated, although steps have
recently been taken to maintain and repair the common areas of the property.
On these facts, all of which are common cause, the requirement prescribed in
section 16 (2) (a) (i) of the 2011 Act has plainly been met.
39 However, I do not think that the requirement in section 16 (2) (a) (ii) has been
fulfilled. On the facts of this case, that requirement could only be fulfilled by
evidence that there is a reasonable probability that, if it is placed under
administration, the Body Corporate will be able to meet its obligations and be
managed in accordance with the requirements of the Act. Spotprops alleges
two broad respects in which Bridgetown has, historically, failed to meet its
obligations. In the first place, it has not paid its municipal accounts. Secondly,
the management of the Body Corporate has often been in breach of the rules
the Act imposes on the way the Body Corporate should be run.
18
40 But the evidence is that both of these areas of non-compliance are being
addressed by the executive manag ing agent, and that the situation is slowly
improving. In order to accept that the section 16 (2) (a) (ii) requirement had
been fulfilled, I would need evidence that the administrator would do a better
job than the executive managing agent has of working towards compliance
with the Body Corporate’s financial and legal obligations. There is simply no
such evidence on the papers. The person Spotprops nominates as the
prospective administrator does not set out what he would do that the executive
management agent is not doing. He neither advanced any criticism of the
executive managing agent nor provides any sense at all of the steps he would
take were he appointed Bridgetown’s administrator. The performance of
Bridgetown’s pervious administrators is also hotly disputed. What is not
seriously disputed is that the executive managing agent presently in charge at
Bridgetown is making real progress toward ensuring compliance with the Body
Corporate’s obligations.
41 It follows that the requirement set out in section 16 (2) (a) (ii) of the 2011 Act
has not been fulfilled, and the application to appoint an administrator must fail
for that reason.
42 Even if I were satisfied that the requirements of section 16 (2) had both been
met, I would still have exercised my discretion against the appointment of an
administrator. This is because the only reasonably clear and substantially
undisputed facts on the papers are that, over the last year or so, the Body
Corporate’s situation has improved as a result of the engagement of the
executive managing agent. Those facts justify allowing the executive