Graham v Park Mews Body Corporate and Another

• Jurisdiction: South Africa

Graham v Park Mews Body Corporate and Another
2012 (1) SA 355 (WCC)

2012 (1) SA p355

Citation	2012 (1) SA 355 (WCC)
Case No	20371/2010
Court	Western Cape High Court, Cape Town
Judge	Henney J
Heard	May 5, 2011
Judgment	September 19, 2011
Counsel	D Baguley for the applicant.; B Hack for the respondent.

Flynote : Sleutelwoorde B

Evidence — Admissibility — Arbitrator's finding — Such inadmissible in later civil proceeding as proof of fact.

Headnote : Kopnota

During the course of arbitration proceedings the arbitrator made certain findings C of fact against the first respondent. In a later proceeding the applicant sought the admission of those findings as proof of those facts. The court held that the Hollington v F Hewthorn & Co Ltd [1943] 2 All ER 35 rule could be applied (a criminal conviction may not be admitted in a later civil proceeding to prove a fact). Accordingly the findings were inadmissible. (Paragraphs [58] – [60] and [65] – [66] at 369A – E and 371B – D.) D

Cases Considered

Annotations:

Reported cases

Southern Africa

Danielz NO v De Wet and Another 2009 (6) SA 42 (C): referred to E

Dempa Investments CC v Body Corporate, Los Angeles 2010 (2) SA 69 (W): dictum in para [21] applied

Fakie NO v CC II Systems (Pty) Ltd 2006 (4) SA 326 (SCA): applied

Hassim (also known as Essack) v Incorporated Law Society, Natal 1979 (3) SA 298 (A): referred to

Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C): dictum at 352A applied F

Metedad v National Employers' General Insurance Co Ltd 1992 (1) SA 494 (W): referred to

Msunduzi Municipality v Natal Joint Municipal Pension/Provident Fund and Others 2007 (1) SA 142 (N): referred to

National Director of Public Prosecutions v Zuma G 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009 (4) BCLR 393; [2008] 1 All SA 197): dictum at 290F applied

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): applied

Tattersall and Another v Nedcor Bank Ltd 1995 (3) SA 222 (A): dictum at 228F – 229D applied. H

England

Hollington v F Hewthorne & Co Ltd [1943] KB 587 (CA) ([1943] 2 All ER 35): applied

Land Securities plc v Westminster City Council [1993] 4 All ER 124 (Ch D): followed. I

Case Information

Application for the appointment of an administrator under the Sectional Titles Act 95 of 1986.

D Baguley for the applicant.

B Hack for the respondent. J

2012 (1) SA p356

Cur adv vult. A

Postea (September 9).

Judgment

Henney J:

B [1] The applicant is one of the trustees in the first respondent, a body corporate known as Park Mews established in terms of s 36 of the Sectional Titles Act 95 of 1986 (the Act). He is also the owner of one of the six units of Park Mews. The second respondent is the current chairperson of the first respondent and is the owner of four of the units C of Park Mews.

[2] The other remaining unit is owned by Mr David Oxendale who is also a trustee of the body corporate. The applicant had been living at Park Mews for approximately four years. During this time various disputes had arisen between the second respondent, as chairman of the body corporate, and the applicant. This resulted in the applicant D instituting arbitration proceedings against the first respondent.

[3] The dispute giving rise to the arbitration proceedings centred around certain repair and maintenance work the first respondent failed to perform to the common property in order to prevent any water ingress E and consequent damages to the applicant's property.

[4] An award consisting of four components was handed down by the arbitrator Mr Mathew Ash, an attorney, on 30 March 2010. The applicant was successful in respect of three of the four claims whilst one F was dismissed. The award was as follows:

'29.1

Respondent is directed to remediate, repair, and maintain the common property consisting [of] the balcony and appurtenances to Unit 2 of Park Mews situate at Glenside Road, Green Point, Cape Town (the scheme), including taking the measures as recommended by the experts Mr JW Mitchell and Mr L Nyenes, so as to halt and prevent any water ingress from the common G property into Claimaints property, being Unit 1 of the scheme.

29.2

Claimants claim for similar remediation, repair, and maintenance by Respondent of the joint running north and south between the new western extension to Unit 1 and the original unit is dismissed. However, insofar as Claimant may wish to take remedial measures, in particular those as indicated by Messrs, Mitchell and H Nyenes, Respondent is directed to take all reasonable steps to facilitate this where such measures may involve common property of the scheme.

29.3

Respondent is to pay Claimants costs of this arbitration on the scale as between party and party according to the High Court tariff, such costs to include the costs of Mr JW Mitchell as expert I for Claimant.

29.4

Respondent shall not be entitled to reclaim from Claimant any share of such party and party costs which Claimant might otherwise have been obliged to pay by virtue of his membership of the scheme, nor shall Respondent be entitled to claim from Claimant any share of costs incurred by Respondent in the J conduct of this arbitration.'

2012 (1) SA p357

Henney J

[5] Thereafter the applicant on various dates requested that the first A respondent comply with the award that was handed down, substantially in his favour. This resulted in the applicant approaching this court on 13 July 2010 to declare that the arbitrator's award of 30 March 2010 be made an order of this court. This request was granted by Baartman J.

[6] The applicant thereafter on 14 September 2010 filed an urgent B application to be set down for hearing on 5 October 2010. This was opposed by the respondents and the matter was postponed to the semi-urgent roll for 19 April 2011. This was once again postponed to 5 May 2011 and was heard by this court on that day.

[7] The relief being sought by the applicant is:

[7.1]

Declaring the first and second respondents to be in contempt of C the order of this honourable court granted 13 July 2010, alternatively, should the court not find them to be in contempt, to direct them to take all steps and to do all things necessary to comply with the court order;

[7.2]

that the first respondent be placed under administration in terms D of s 46 of the Sectional Titles Act 95 of 1986;

[7.3]

that a suitably qualified person be appointed as administrator of the first respondent for a period of not less that six months or for such time as the court deems fit;

[7.4]

that the respondents be ordered to pay the applicant's costs E jointly and severally on the scale as between attorney and client.

[8] The respondents opposed this application on the following grounds:

[8.1]

The applicant has failed to set out the grounds for urgency and bringing the application on an urgent basis is an abuse of the court process;

[8.2]

The respondents have not made themselves guilty of contempt F of the order of court and had begun, or are in the process of, effecting the repairs as required in terms of the order. There is therefore a dispute of fact;

[8.3]

The applicant, by instituting the contempt of court proceedings is trying to retrospectively authorise an unlawful extension to his G unit. Secondly, should he not succeed with the contempt proceedings, the applicant is seeking to deprive the second respondent of his rights by applying to this court that an administrator be appointed;

[8.4]

The second respondent was not cited in his capacity as the H chairperson of the body corporate and in the original application, only in his personal capacity.

[9] At this stage, before dealing with the issues it would be appropriate to mention that the applicant filed his replying affidavit out of time. The second respondent as a result of this filed a further supplementary I answering affidavit in the main application in which he raises further issues which he did not deal with in his answering affidavit.

[10] There was no opposition by the applicant to the filing of the further supplementary answering affidavit, but with the reservation that should the application be dismissed, the costs of the filing of this affidavit should not be included. J

2012 (1) SA p358

Henney J

A [11] Issues for determination

(a)

Whether the second respondent had the necessary authority to act on behalf of the first respondent;

(b)

whether the second respondent was properly joined;

(c)

whether the first respondent is guilty of contempt of the order of B court made on 13 July 2010;

(d)

whether the second respondent, against whom the original order had not been given, is also guilty of contempt of court on the basis that he was responsible for the first respondent's failure to comply with the court order;

(e)

whether the applicant has made out a case that the first respondent C be placed under administration.

[12] During the hearing of the application, after it became apparent that the evidence upon which the applicant relied, especially with regard to the relief he is seeking to have an administrator appointed, might be inadmissible, the court invited counsel to address it on this aspect. D Counsel was also invited by the court to submit further supplementary heads of argument on the following issues:

(a)

Whether, to the extent they were relied upon by the applicant, the conclusions and facts as found by the arbitrator, which were attached, are admissible;

(b)

E whether a report of Mr Jonathan Mitchell and an email of Mr Hodson, submitted as evidence in the arbitration proceedings, can be admitted as evidence in these proceedings despite the applicant having failed to lay a proper foundation to the admission...