Baard and Another v Koro Creek Home Owners' Association and Another (28281/2012) [2012] ZAGPPHC 349 (14 December 2012)

Baard and Another v Koro Creek Home Owners' Association and Another (28281/2012) [2012] ZAGPPHC 349 (14 December 2012)

The court found that the exemption of the developer from payment of levies was clearly provided for in both the Articles and the Memorandum of Incorporation, with no limitation to the development period. The adoption of the Memorandum and its exemption clause was properly notified and voted upon, and did not constitute oppressive or unfairly prejudicial conduct. The applicants failed to establish that the conduct of the respondents was oppressive or unfairly disregarded their interests under section 163. Any unfairness is temporary, as the members who purchased erven will soon have sufficient voting power to amend the Memorandum if they wish. The court held that it should not intervene to...

Citation
[2012] ZAGPPHC 349
Parties
Applicant: Schalk Leon Baard; Applicant: Bosveldsig Sentrum CC; Respondent: Koro Creek Home Owners' Association; Respondent: Marjo Property and Development Company (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 December 2012
Case Number
28281/2012
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application dismissed with costs.
Judges
Hiemstra AJ
Legal Topics
Oppressive Conduct, Memorandum of Incorporation, Levy Exemption, Companies Act Section 163
Commercial and Corporate Oppressive Conduct Memorandum of Incorporation Levy Exemption Companies Act Section 163

Case Brief

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Parties

Schalk Leon Baard

Applicant

Bosveldsig Sentrum CC

Applicant

Koro Creek Home Owners' Association

Respondent

Marjo Property and Development Company (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the exemption of the developer from payment of levies constitutes oppressive or unfairly prejudicial conduct under section 163 of the Companies Act.
  2. 2 Whether the first respondent's omission to impose levies on the developer is actionable under section 163.
  3. 3 Whether the adoption of the Memorandum of Incorporation with the exemption clause was procedurally unfair or oppressive.

Ratio Decidendi

The court found that the exemption of the developer from payment of levies was clearly provided for in both the Articles and the Memorandum of Incorporation, with no limitation to the development period. The adoption of the Memorandum and its exemption clause was properly notified and voted upon, and did not constitute oppressive or unfairly prejudicial conduct. The applicants failed to establish that the conduct of the respondents was oppressive or unfairly disregarded their interests under section 163. Any unfairness is temporary, as the members who purchased erven will soon have sufficient voting power to amend the Memorandum if they wish. The court held that it should not intervene to...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.