Bill v Waterfall Estate Home Owners Association NPC
| Jurisdiction | South Africa |
| Judge | F Southwood AJ |
| Judgment Date | 10 March 2020 |
| Docket Number | 2019/21837 |
| Court | Gauteng Local Division, Johannesburg |
| Hearing Date | 29 January 2020 |
| Citation | 2020 JDR 0771 (GJ) |
Southwood AJ:
A. INTRODUCTION
This is an application for an order inter alia directing the respondents to restore possession and unrestricted access to Erf 3004, Jukskei View, Ext 38 Township, Registration Division IR Province of Gauteng located at stand 1223 Waterfall Country Estate, North ('the property'); and to restore unrestricted access to the property to the applicant's contractors.
B. THE PARTIES
The applicant is Michael Motsoeneng Bill, an adult male residing at 3726, Tugela Drive, Waterfall Country Village, Waterfall City ('the residence'). The applicant is the registered lessee of the property in terms of a 99-year lease. The lessor is Waterfall Country Estate WUQF Proprietary Limited. The applicant is a member of the first respondent by virtue of his lease.
The first respondent is the Waterfall Estate Homeowners Association, incorporated as a non-profit company.
The objects of the first respondent are to manage and control the Estate which consists of the residential property developments known as Waterfall Country Village and Waterfall Country Estate ('the Estate'); and to render services for the mutual benefit of members of the first respondent in the Estate.
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The second respondent is the property manager of the first respondent.
C. BACKGROUND
The Estate is situated on Waterval farm. In 1934, the farm was bought by Moosa Ismail Mia, who built a religious training facility and a school for Indian and Black orphans on parts of the farm. Later the government expropriated portions of the farm for development. Eskom's Megawatt Park and the Buccleuch interchange are built on what was once the farm. When the Mia family decided to develop the remaining portions of the farm, this had to be done within a framework of a religious requirement not to sell the land but rather to lease the land by means of 99-year leases.
The Waterfall development, which includes the Estate, has emerged as the largest property development in South African history. It envisages the development of between twelve and nineteen thousand residential units, which will eventually house an estimated forty-eight to seventy-six thousand people. It also incorporates commercial and office space that will ultimately accommodate a further seventy-five thousand people.
The Estate is located on the embankments of the Jukskei River. It is a highly secure luxury lifestyle residential estate focused on green living. The Estate includes 17km of walking/jogging trails and mountain-bike trails, which feature bird-hides, park-benches and drinking-fountains. The Estate also includes a five-hectare lake and a riverside lapa which hosts non-motorised
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water sports events and provides other entertainment amenities. There are numerous outdoor sporting facilities and a clubhouse which includes a comprehensive fitness centre; tennis, volleyball and squash courts; a swimming pool; aerobics and pilates studios, as well as a gym.
Further facilities include private international pre-primary, primary and high schools and shopping centres. There are additional facilities which include secure gatehouses. Security is managed by trained manpower of, what is described as, a state of the art security system. This system is described, further, as non-intrusive but highly visible to the outside world. The perimeters of the Estate are secured by a 4m high, reinforced-concrete wall, supporting an electric fence. The wall is well lit, monitored by mounted CCTV cameras and patrolled by on-site security personnel.
The first respondent's memorandum of incorporation ('MOI') provides that the members of the first respondent consist mainly of the Home Owners in the Estate, as defined in the MOI. A Home Owner is a Lessee in terms of an End-User Lease which is defined as a lease between Waterfall Country Estate WUQF Proprietary Limited and a Lessee in respect of a Stand. Upon becoming a Home Owner, a person automatically becomes a member of the first respondent, which membership ceases when a person ceases to be a Home Owner.
On 7 April 2016, a notarial deed of cession and assignment was registered in the applicant's favour with the Registrar of Deeds, in terms of which the
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applicant took over the lease of the property from Mafafo Building Construction CC.
Upon registration of the deed of cession and assignment, and in terms thereof, the applicant became a member of the first respondent. The applicant also became bound by the Estate's MOI and the conduct rules of the Estate ('the Rules').
As a consequence of registration, the applicant took possession of the property and has been in peaceful and undisturbed possession thereof until the impugned conduct of the respondents occurred.
The property is a resale property, as contemplated in Rule 16.3. When the applicant became a member of the first respondent, the first respondent had already imposed commencement and completion penalties in respect of the property as a consequence of the failure of the previous lessee, Mafafo Building Construction CC, to comply with the provisions of Rules 16.1 and 16.2, namely to commence construction within twenty-four months of registration of the lease and to complete construction within forty-eight months of registration of the lease.
In terms of Rule 16.3.1, the applicant was required to commence construction within twelve months from 7 April 2016 and complete construction within twenty-four months of 7 April 2016, failing which certain penalties would be imposed.
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During the period June 2016 and June 2018, the applicant attempted to get his building plans drawn up and approved by the first respondent and building lines relaxed and approved by the Johannesburg City Council. This process was only completed on 8 June 2018. The applicant only commenced construction on the property on or around 23 July 2018.
On 5 April 2017, the applicant received an email from Lely Mabaso, described by the respondents as a 'representative' of the second respondent, warning the applicant that a penalty would be imposed if he failed to commence construction of a unit on the property as provided for in Rule 16.3.
In terms of Rule 16.3.3, a penalty of R5000 per month is payable for failure to commence construction timeously. The monthly penalty is applied retrospectively from the date of registration of the lease and continues until the date of commencement of construction.
On the same date, the applicant addressed an email to one Mr de Carvalho, the Building Control Manager of the second respondent, disputing his liability to pay the penalties.
On 6 April 2017, the applicant was, again, warned in writing that the penalty would be imposed from June 2017 if he failed to commence construction
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before the end of May 2017. He was also furnished with a contractors' registration pack.
It appears from a levy statement for the property attached to the respondents' answering papers that a late building penalty was imposed on a monthly basis from June 2017 to August 2018.
On 13 December 2017, the applicant, again, addressed an email to Mr de Carvalho disputing that he was liable for any penalties. He indicated that his failure to commence construction was a consequence of the Municipality's failure to approve his plans. He indicated, further, that his contractor had approached the second respondent for permission to start construction. Such permission was refused because the Municipality had not yet approved his plans. He indicated, however, that his contractors had done a site establishment on the property.
On or about 23 July 2018, after the Municipality had approved the applicant's plans, Mr Singh, the Aesthetics and Building Control Manager of the second respondent, granted the applicant's contractor permission to commence with construction on the property and construction on the property commenced.
The applicant failed to pay the penalties imposed and the directors of the first respondent instructed the second respondent to deactivate the
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applicant's biometric access to the Estate and to refuse his contractors' access to the Estate ('the lock-out').
D. THE SPOLIATION APPLICATION
On 4 October 2018, Ms Jonker of the second respondent, addressed an email to the applicant informing him that the lock-out was in effect as a consequence of his failure to pay the levy i.e. the penalty, which lock-out would be suspended when all arrears relating to the property had been paid in full. The lock-out was then put into effect. The applicant has, however, retained his biometric access to the Estate which is linked to the residence.
The applicant replied on the same day denying that he was in breach of the lease; that construction had commenced and that the lock-out would delay construction; that he would sue for damages caused by the delay; and that all his levies were up to date.
On 12 October 2018, an attorney, Mr Els, employed by the second respondent, sent an email to the applicant where he indicated the extremely clear provisions on construction timelines; the penalties imposed; and the applicant's intentional refusal to pay the penalties. The applicant was informed that he must pay the arrears in full or in part before construction would be allowed to proceed or avoid having the lease terminated. He was warned that should the matter not be resolved (presumably by paying a part
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or the whole of the arrears), the account would be handed over to attorneys for collection of the arrears and cancellation of the lease.
The respondents do not...
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