Dempa Investments CC v Body Corporate, Los Angeles

• Jurisdiction: South Africa
• Judge: Gautschi AJ
• Judgment Date: 27 March 2009
• Counsel: C van der Merwe for the appellants. NF Masenamela (attorney) for the respondent.
• Docket Number: 07/16617 and 07/18122
• Court: Witwatersrand Local Division

Gautschi AJ:

I [1] There are two applications before me. The first is an application for the rescission of an ex parte order granted by Satchwell J on 31 July 2007. The second, which only becomes relevant if the rescission succeeds, is for the appointment of an administrator to a sectional title scheme in terms of s 46 of the Sectional Titles Act 95 of 1986 (the Act).

J [2] The relevant facts are the following:

Gautschi AJ

[2.1]

The applicant is the registered owner of a unit in the sectional A title scheme known as Los Angeles, a building comprising some 50 flats situated in Berea, Johannesburg. The applicant is represented by Ms Noah, who is the beneficial member of the applicant.

[2.2]

It appears that Ms Noah was appointed as administrator in B terms of s 46 of the Act during 2005 and 2006. Thereafter, in about April 2007, Messrs Peter Watt Kaye-Eddie and Nettus Moral Dibakwane were appointed as joint administrators for a period of two months until the end of June 2007.

[2.3]

The court order in terms of which Messrs Kaye-Eddie and C Dibakwane were appointed as joint administrators is a lengthy one. Amongst their duties they were to convene a general meeting of the body corporate to be held at 19h00 on a day to be selected by them, which could not be later than 28 June 2007, and they had to give notice of such meeting in accordance with rule 54 of annexure 8 to the Sectional Titles Regulations (the D regulations). The general meeting was to be chaired by an advocate to be appointed by the chairperson of the Johannesburg Bar Council, and at the meeting trustees were to be elected.

[2.4]

A general meeting was convened to take place at 18h30 on 28 June 2007 at the building. Mr RL Selvan SC had been appointed by the chairperson of the Johannesburg Bar Council E to chair the meeting. His report is dated 24 July 2007 and forms part of the papers. He reports that the meeting was a 'fiasco'. Very few people were present and it appears that the notice convening the meeting had not been delivered to most of the owners. Ms Sylvia Phalane (who will feature later in this F judgment) was at the meeting and adopted a hostile attitude. She 'enquired what we were doing in her building and intimated that there was no need for us to be there inasmuch as the building was being satisfactorily managed by the de facto body corporate'. (I gather that by 'de facto body corporate' is meant the de facto governing body of the body corporate.) In the result, no meeting was in fact held. G

[2.5]

Another meeting was organised thereafter, it seems by the Phalane camp. The following notice was apparently circulated:

'MEETING OF ALL OWNERS OF LOS ANGELES H
(BODY CORPORATE) DATE: 29 JUNE 2007

VENUE: LOS ANGELES GARAGE

TIME:

19H00

MINUTES

The owners will be discussing about the following problems

1.

Switching off of electricity; I

2.

Reopening of an account;

3.

The issue of Nettus Dibakwane and Kaye-Eddie as Administrators

4.

About administrator - there is a need for an administrator at the building?

5.

If not what is the way forward or what needs to be done? J

Gautschi AJ

6.

A If yes, how are we going to manage our building as owners

7.

Other issues relating to our building.' It will be noticed that the agenda (which is what this clearly is) does not contain any reference to the election of trustees.

[2.6]

B A meeting was then apparently held. A four-page handwritten minute is annexed to the papers. The date of the meeting, as it appears from the minute, is 1 July 2007, but it appears to have been corrected in pen. It seems that the handwritten date might originally have been 29 June 2007, but had thereafter been C overwritten or corrected in pen. At the outset of the minute the agenda as set out in the notice quoted above is repeated. The following is recorded under the heading 'Owners who were present':

'All owners who are currently living in the building inclusive of D some from outside the building who came to attend the meeting in the building.' The items on the agenda are then addressed. Each page is initialled in the bottom-right corner. The third page ends close to the foot of the page, and the initials follow immediately E thereafter. Following that, apparently in a different handwriting, it is recorded that certain persons were elected as trustees and that the court will declare them as such. The minute then records the names of seven persons and their respective positions. Ms Phalane was one of them, and her position is recorded as caretaker.

[2.7]

F On 24 July 2007 the respondent launched an ex parte application, seeking a declarator that the seven persons who had purportedly been elected as trustees be declared to be trustees, and declaring that they remain in office for a period of one year, within which period they had to convene an annual general G meeting.

[2.8]

The deponent to the founding affidavit in that application was one Anna Mosemaka, who alleged that she was the owner of unit 21 and one of the elected trustees. She attached a copy of the handwritten minute referred to above to her founding affidavit. H She claimed that the meeting had been held 'by the owners and members' of the body corporate of Los Angeles on 1 July 2007. She asserted that the trustees had indeed been elected, and listed them. She asserted that 'there is therefore a need for a declaratory order confirming the said people as the trustees for the Applicant.'

[2.9]

I In regard to the previous court order, she said the following:

'8.

I wish to point out to this Honourable Court that before the meeting referred to hereinabove, the Applicant was under administration in terms of the order of court granted under case No: 06/24417. I attach hereto marked J ''AM3'' a copy of the said court order. This Honourable

Gautschi AJ

Court will note that the court order was valid up to and A including 30th June 2007 on which date it will terminate.

9.

The said court order has indeed lapsed. Upon it lapsing, the Applicant held a meeting and elected trustees.'

[2.10]

She also submitted that there would be no harm or prejudice suffered by anyone if the order were granted. B

[2.11]

On the strength of this, Satchwell J granted an order on 31 July 2007 in the following terms:

'1.

Declaring the undermentioned people to be the trustees for the Body Corporate Los Angeles elected in terms of the provisions of the Sectional Titles Act 95 of 1986, as amended - C

1.1

Kekeletso Don Korea - Unit 14 Los Angeles;

1.2

Metja Pauline Sumbane - Unit 13 Los Angeles;

1.3

Ramadimetja Julia Leshilo - Unit 36 Los Angeles;

1.4

Masimogang Sylvia Phalane - Unit 56 Los Angeles;

1.5

Anna Mosemaka - Unit 21 Los Angeles;

1.6

Lefula Humphrey Makaleng - Unit 46 Los Angeles; D

1.7

Nqobi Victor Ncube - Unit 94 Los Angeles.

2.

Declaring that the said trustees shall remain in office for a period of 1 (one) year from date of the order and that they will convene an annual general meeting in terms of the provisions of the Sectional Titles Act 95 of 1986 as amended before the expiry of the said period of 1 (one) E year in order to consider the business relating to the scheme Los Angeles, Scheme No: 82/1984.'

[2.12]

Apparently in ignorance of the aforesaid court order, the applicant launched the application for the appointment of Mr Kaye-Eddie as administrator on 10 August 2007. The F answering affidavit, delivered on 19 September 2007, referred to the appointment of the trustees and the fact that their appointment had been authorised by the court on 31 July 2007.

[2.13]

On 30 November 2007 the application for rescission was launched. No answering affidavit was delivered in the application for rescission. G

[3] When the matters were called, Mr Masenamela, who appeared for the respondent, submitted that the application for rescission was not ripe for hearing because no answering affidavit had been delivered. That application had been issued and served on 30 November 2007. A notice of intention to oppose was delivered on 6 December 2007, and the H answering affidavit was therefore due on or before 2 January 2008. The matter was called before me on 13 February 2008. No answering affidavit had yet been prepared, nor was there any application before me for condonation or an extension of time. This was not a case where the matter was not ripe for hearing; it was ripe for hearing, despite the I absence of an answering affidavit. Rather, if the respondent required an extension of time or condonation to deliver an answering affidavit, it should have launched a substantive application therefor. In the absence of any such application for condonation or an extension of time, there was no basis to grant the respondent any indulgence, and I directed that the matter had to proceed. J

Gautschi AJ

A [4] I deal firstly with the application for rescission. The ex parte application was a strange application to start with, since there is nothing in the Act or Regulations which requires or even authorises the court to declare that trustees have been duly elected. The High Court is empowered to 'enquire into and determine any existing, future or B contingent right or obligation'. [1] Since Ex parte Nell [2] an existing dispute has not been a prerequisite for the making of a declaratory order. The court could, however, depending on the circumstances, refuse to exercise its discretion when there was no dispute. [3] The court will not deal with abstract, hypothetical or academic questions. [4] In addition, there should C be interested parties upon whom the declaratory order would be binding, [5] by operation of res judicata and not merely stare decisis. [6] This latter requirement entails that...