Essa NO v Body Corporate of Kingsway House; - Body Corporate of Kingsway House v Essa NO

• Jurisdiction: South Africa
• Judge: Swain J
• Judgment Date: 20 February 2009
• Docket Number: 6292/2008
• Court: Durban and Coast Local Division
• Hearing Date: 09 February 2009
• Citation: 2009 JDR 0110 (D)

Swain J:

[1] There are two linked applications before me involving the same parties. In the first application (Case No. 6292/2008) the owners of a sectional title unit in a sectional title scheme, seek an interim order against the body corporate of that scheme, to interdict the body corporate from interfering with their right to erect advertising signs on the exterior of the building. The order sought is interim, pending an action to rectify the notarial cession of right to exclusive use of portion of the common property of the scheme, to reflect the owners' right to erect such advertising signs.

[2] The response of the body corporate is not only to oppose the application, but to seek by way of a counter-application an order against the owners effectively preventing them from exercising exclusive use over common property not allocated for their exclusive use. Further complaints are that the owners allow the office on the ground floor to be used for residential purposes, are obliged to restore the name sign of the building which it is alleged the owners removed, are unjustly refusing to pay current levies, have subjected certain individuals associated with the body corporate to threatening and abusive language and that a certain roof should be removed by the owners. Interdictory relief is sought against the owners for the resolution of these complaints. In order to prevent confusion, I will refer to the applicants as the Owners and the first respondent as the Body Corporate where appropriate. There is no need to refer to the second respondent again, an advertising company which has

2009 JDR 0110 p3

Swain J

concluded a contract with the Owners, and is joined simply as an interested party.

[3] In the second application (Case 9931/2008) the Body Corporate seeks an order directing the Owners to make payment of certain special levies, payment of levies undercharged for certain specified periods, as well as an interdict restraining the Owners from refusing to pay ordinary and special levies in the future.

[4] A third application (Case No.13965/2008) in which the papers are not yet complete, waits in the wings in which the owners seek an order appointing an administrator in terms of Section 46 of the Sectional Titles Act of the Sectional Title Scheme, for a period of twelve months.

[5] At the hearing of this matter, Mr. Jeffrey, S.C. who appeared for the Owners, submitted that:

[5.1] The first application should be referred for the hearing of oral evidence and

[5.2] The second application should be adjourned, until the third application for an appointment of an administrator, has been determined.

2009 JDR 0110 p4

Swain J

[6] Mr. Goddard, who appeared for the Body Corporate, resisted this, submitting that in certain respects the first application could be determined on the papers, and that in the second application, the Owners had disclosed no defence to the claim for payment of special and general levies.

[7] As regards the relief claimed by the Owners in the first application, Mr. Goddard submits that no case has been made out for the rectification of the notarial deed of cession, and consequently the...