IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG CIVIL DIVISION
PRETORIA
CAS E NO: 14627 1-2024
DELETE WH ICH EVER IS NOT APPLICABLE
(1) REPORTABLE ~ NO
(2) OF INTEREST TO OTHER JUDGES •~ / NO
(3) REVISED
siG·N·A I Jag
DATE• 25 February 2026
In the ma tter between
KPPINVESTMENTS(PTY)LTD
CMS MANAGEMENT SERVICE CC
TSEPANG NARE
and
THE BODY CORPORATE OF ILLOVO
CENTRAL
LANDSDOWNE PROPERTY
MANAGEMENT(PTY)LTD
JOHANNESBURG 4 Properties (PTY) LTD
JUDGMENT
NTLOKOAJ
First App licant
Seco nd App licant
Th ird App licant
First Respondent
Second Respondent
[1] The principal relief sought in the main application concerns the
appointment of an administrator in terms of section 16 of the Sectional Titles
Schemes Management Act 8 of 2011 (“the STSMA”) in respect of the Body
Corporate of Illovo Central.
[2] This judgment, however, is confined to a discrete preliminary issue
raised by the Fifth Respondent: namely, whether the application is fatally
defective for want of joinder of the individual trustees of the Body Corporate.
[3] The Fifth Respondent contends that the application is fatally defective
for want of joinder of the individual trustees of the Body Corporate. It is
argued that because the appointment of an administrator would suspend the
trustees’ powers and functions, they possess a direct and substantial interest
in the relief sought and ought to have been cited in their personal capacities.
[4] The Applicants dispute this contention. They submit that the Body
Corporate is a juristic person capable of suing and being sued in its own
name; that the relief is directed at the Body Corporate as an institution; and
that no personal relief or adverse finding is sought against the trustees
individually.
[5] The issue for determination at this stage is therefore a narrow one:
whether, on the settled principles governing joinder, the trustees have a legal
interest in the subject matter of the litigation that may be prejudicially affected
by the order sought, such that their non-joinder renders the proceedings
defective.
[6] The factual matrix relevant to this issue is largely common cause. The
Body Corporate of Illovo Central is cited as the First Respondent. It is a
juristic person established in terms of section 2 of the STSMA. The relief
sought in the main application is directed at the governance and financial
management of the scheme itself.
[7] It is not disputed that:
5.1. the Body Corporate is before this Court as a cited party;
5.2. the Body Corporate has been served with the application;
5.3. the Body Corporate has elected not to oppose the relief sought;
5.4. the Fifth Respondent has participated fully in the proceedings
and has advanced opposition.
[8] The Applicants do not seek personal relief against any trustee. No
declaratory, mandatory, or pecuniary order is sought against trustees in their
individual capacities. Nor is any allegation made that would found personal
liability on their part.
[9] The substantive relief sought concerns the administration of the
scheme and, if granted, would operate at the level of the Body Corporate as
a statutory entity. The effect of such relief would be to regulate how the Body
Corporate discharges its functions under the STSMA.
[10] Against this factual background, the narrow question is whether the
trustees possess a legal interest in the subject matter of the litigation that is
direct and substantial in the sense required by our law of joinder — namely,
an interest which may be prejudicially affected by the judgment of this Court.
LEGAL PRINCIPLES
The legal test for joinder
[11] The legal test for joinder is now settled. Joinder is required if it is
deemed necessary,
1 and that is if a party has a “direct and substantial”
interest in the relief sought.2 The interest thereof is in the right of the subject
matter of the litigation.3 A legal interest in the subject matter of the litigation is
that which may be affected prejudicially by the judgment of the court unless
they have waived his or her right to be joined. 4 This was restated by the
Supreme Court of Appeal (“SCA”) in Judicial Service Commission and
Another v Cape Bar Council and Another.5
1 Eugene Prinsloo v Donovan Theodore Majiedt N.O and Another (257/2024) [2025] ZASCA 74 (30
May 2025).
2 See also United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another 1972 (4)
SA 409 (C) at 415E-H; Strydom v Engen Petroleum 2013 (2) SA 187 (SCA) 198B (Strydom).
3 Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O) at 169
4 ABSA Bank Limited v Naude N.O 20264/14 [2015] ZASCA 97 (1 June 2015) para 10.
5 (818/2011) [2012] ZASCA 115 at para 12.
[12] The formulation in A malgamated Engineering Union v Minister of
Labour,6 sets out two tests:
i. Whether the third party would have locus standi to claim relief
concerning the same subject matter (the locus standi test);
ii. Whether the third party who has not been joined can successfully
raise the defence of res judicata concerning the same subject-
matter in a subsequent case and obtain a conflicting decision to
that made in the first instance (the res judicata test).
If both questions are negative, then it is reasonable to conclude that joinder
is not required.
[13] In Matjhabeng Local Municipality v Eskom Holdings Limited and
Others,
7 the Constitutional Court stated that:
“[92] … No court can make findings adverse to any person’s interests,
without that person first being a party … in the knowledge that there are
personal consequences – including a penalty of committal ...”
[14] The authorities therefore make plain that joinder is required only
where a party’s own legal rights may be prejudicially affected by the order
sought, and not where the interest is indirect, derivative, or merely functional.
In the present matter, the enquiry accordingly turns on the juridical nature of
a body corporate and the status of its trustees within the statutory scheme. It
is to that issue that I now turn.
6 1949 (3) SA 637 (A) at p660 -661. See Inospace Services (Pty) Ltd v Morris and Another
(2025/124057) [2025] ZAWCHC 414 (8 September 2025); Transvaal Agricultural Union v Minister of
Agricultural & Land Affairs 2005 (4) SA 212 (SCA) at para 66.
7 2018 (1) SA 1 (CC).
Legal nature of the body corporate
[15] In Bam v Holtzhausen and Others,8 the applicant averred that all legal
proceedings involving a body corporate must be issued against the trustees,
as a body corporate is not a juristic person and cannot sue or be sued in its
own name.
9 The court rejected this and held that a body corporate is a
juristic person capable of suing and being sued in its own name, 10 as per
Section 2(7) of the Sectional Titles Schemes Management Act (“STSMA”). 11
The court described this as a well-settled principle and relied on Harbour
Terrace Body Corporate v Minister of Public Works and Others, 12 where the
nature and powers of a body corporate were comprehensively summarised:
“24. The body corporate is a juristic person with perpetual succession
capable of suing and of being sued in its corporate name in respect of any
matter in connection with the land or building(s) for which the owners therein
are jointly liable, any matter arising out of the exercise of any of its powers or
the performance of any of its duties under the Act, any contract made by it
and any damage to the common property. The body corporate is required to
control, manage, and administer the common property for the benefit of all
owners and to properly maintain the common property in a state of good and
serviceable repair. To carry out its duties in this regard it may require the
owners to pay levies to a fund sufficient for the repair, upkeep, control,
management and administration of the common property, and for the
8 (2024-097438) [2025] ZAGPPHC 601 (21 February 2025).
9 Id at para 5.
10 Id at para 5.
11 8 of 2011.
12 (2556/2016) [2016] ZAWCHC 87
payment of rates and taxes and any other local authority charges for the
supply of utilities and services to the building(s) or land, as well as any
insurance premiums which are applicable thereto.”
[16] In Zikalala v Body Corporate of Selma Court and Another ,13 the court
cited Van der Merwe with approval that:
[25] “… In Van der Merwe Sectional Titles, Share Blocks And Time -
sharing it is pointed out that:
‘The body corporate is a juristic person created by statute. . . . being
an artificially created legal entity, it can only have the legal status
and powers conferred by it by the Sectional Titles Act and the
Sectional Titles Schemes Management Act and nothing more. It can
only operate within the legal framework of the legislation in
question. If the legislation clearly and exhaustively deals with the
matter concerned, anything done outside the framework of the
statute is void ab initio and is likened to driving a coach and horses
through the statute.’
The author further states the following regarding the power of
trustees:
‘A person seeking to enforce a contract against the body corporate,
which he contends was entered into by the trustees on its behalf,
must first establish that the contract was within the capacity of the
body corporate itself, because an act performed by the trustees in
excess of the capacity of the body corporate is ultra vires and void.
13 (AR255/2020) [2021] ZAKZPHC 81.
Secondly, he or she will have to establish that the act was not one
reserved by the Act or the rules for the owners in general meeting.’
[17] It follows that under a sectional title scheme, a board of trustees is
comparable to a board of directors. 14 While trustees make decisions and act
on behalf of the body corporate as per the statute, they do so in a
representative capacity. Their powers and duties belong to the body
corporate, not to trustees separately or jointly with the body corporate .
Section 16 of the STSMA application is not directed against the trustees, but
rather it affects the governance of the juristic entity. The order sought is to
appoint an administrator over the body corporate’s affairs, typically with the
effect of curtailing the trustees’ powers and functions for a period. The
trustee/s interest is only in performing a function on behalf of the body
corporate.
[18] The trustees would not have locus standi in their personal capacities
to bring or oppose a section 16 application. Section 16(1) expressly identifies
who may apply: “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… ”. Trustees are not included in this list unless they are
also owners and act in that capacity. They therefore do not hold the statutory
right that forms the subject matter. Their duties exist only on behalf of the
body corporate; thus, they fail the first joinder test.
14 L.A and Another v Body Corporate of London Place and Others ( 11463 /2023) [2024] ZAWCHC 92
at para 11 citing C G Van der Merwe: Sectional Titles Share Blocks and Time-sharing At pp14-129 and
130.
[19] Trustees also could not raise res judicata in future proceedings. The
order appointing an administrator would bind the body corporate as a juristic
person, with a separate legal persona from the board of trustees. Not
trustees jointly with the body corporate, for that matter. They therefore
cannot obtain a conflicting judgment later. So, the second test also fails.
[20] The trustees consciously opted not to intervene. They could have
sought leave to intervene or applied to be joined.
Does the suspension of the trustees' statutory powers and functions create a
direct and substantial interest?
[21] The fifth respondent argues on the strength of a judgment in the Cape
division in New Garden Cities Incorporated Association Not For Gain v
Adhikarie
15 (accepted as not binding on this Court) that an order that would
impact a person's statutory obligations, that person has a direct and
substantial interest.
[22] The fi fth respondent relies on Dempa Investments CC v Body
Corporate of Los Angeles (“Dempa Investments CC”),
16 which stated:
“29. I mention in passing that the trustees were joined as respondents in
Bouraimis’ case, and I think properly so, since a trustee need not necessarily
be an owner or the nominee of an owner which is a juristic person. The
trustees were not joined to this application, but as no point was made of this
apparent non-joinder, and it seems to me that it is in effect the trustees who
are driving the opposition on behalf of the respondent, I also make no point
of this.”
[23] However, as correctly argued by the applicant, Bouraimis and Another
v Body Corporate of The Towers and Others (“Bouraimis”) ,17 concerned
15 1998 (3) SA 626 (C).
16 07/16617,07/18122) [2008] ZAGPHC 438.
17 1995 (4) SA 106 (D&CLD).
Section 46 of the repealed Sectional Titles Act.18 In Bouraimis, it was argued
that existing trustees had committed several breaches of their statutory
duties to the prejudice of unit owners . This explains why joinder of trustees
was appropriate in that case, as their conduct was the subject of the inquiry,
and the relief was justified because of their alleged breaches. The repealed
Section 46, as correctly found in Dempa Investments CC, did not contain any
provisions indicating in what circumstances the court may or should exercise
its discretion to appoint an administrator. 19 It is for this reason, Booysen J in
Bouraimis had to lay down the following test:
“It seems to me that the Court should not, where a duly constituted board of
trustees is in existence, grant an order for the appointment of an
administrator unless the applicant establishes on a balance of probabilities,
firstly, that there have been breaches of the duties set out in s 39 read with
ss 37, 38 and 40, and, secondly, that it is likely that the owners of units shall
suffer substantial prejudice if an administrator were not to be appointed by
the Court. Such breaches could take the form of a failure to perform duties
or the improper performance of duties.”
[24] Indicatively, section 46 was broad compared to section 16, which is
confined narrowly to the state of the body corporate, even ongoing, in
relation to evidence of serious financial or administrative mismanagement of
the body corporate (s16(2)(a)(i)). The consequences of appointing an
administrator are that the body corporate’s governance is placed under the
administrator, and the trustees' powers are suspended as a result, not due to
a finding of breach on their part . There are no penalties or findings made
against trustees, as the order is sought against the body corporate. The
suspension of their statutory powers and functions is a collateral
consequence of the remedy.
18 95 of 1986.
19 See Dempa Investments CC at para 18.
[25] It goes without saying that the body corporate, as a juristic entity, must
defend itself and be afforded audi. If the court were to find otherwise, that
would erode the separate legal persona of the body corporate.
CONCLUSION
[26] I am of the view that the point raised by the fifth respondent bears no
merit.
[27] Their interests are adequately represented through the body
corporate, and they remain free to place evidence before the court, such as
the affidavits deposed to on behalf of the body corporate. Only where the
application seeks findings or orders against trustees, individually or
collectively as a board, does joinder become obligatory. In the ordinary case,
non-joinder of trustees is therefore not fatal.
[28] The point in limine relating to the alleged non-joinder of the trustees is
dismissed. The costs occasioned by this interlocutory issue shall be costs in
the main application.
NTLOKO, AJ
JUDGE OF THE HIGH COURT
This judgment was prepared by Acting Judge Ntloko. It is handed down
electronically by circulation to the parties or their legal representatives by
email, by uploading it to the electronic file of this matter on Caselines, and by
publication of the judgment to the South African Legal Information Institute.
The date for hand-down is deemed to be 25 February 2026.
HEARD ON: 25 November 2025
DECIDED ON: 25 February 2026
For the Applicant: FJ LABUSCHAGNE
Instructed by EW SERFONTEIN & ASSOCIATES
For the Respondent: L Laughland
Instructed by SCHINDLERS ATTORNEYS