Body Corporate of Acacia Too Sectional Title Scheme v Firstrand Bank Limited and Another; Emira Property Fund Limited v Body Corporate of Acacia Too Sectional Title Scheme and Others (10576/2016, 15840/2016) [2017] ZAGPPHC 526 (31 May 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, JOHANNESBURG)

REPUBLIC OF SOUTH AFRICA

Date of hearing: 31 May 2017

Date of judgment: 31 May 2017

Case number 10576/2016

In the matter between:

THE BODY CORPORATE OF ACACIA TOO

SECTIONAL TITLE SCHEME

Applicant

(Applicant in leave to appeal)

and

FIRSTRAND BANK LIMITED First

Respondent

STRATEGIC REAL ESTATE MANAGERS (PTY) LTD

Second Respondent

Case number 15840/ 2016

In the matter between:

EMIRA PROPERTY FUND LIMITED Applicant

SECTIONAL TITLE SCHEME

First Respondent

(Applicant in leave to appeal)

FIRSTRAND BANK LIMITED N.O. Second

Respondent

STRATEGIC REAL ESTATE MANAGERS (PTY) LTD Third

Respondent

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

BRENNER, AJ:

1. This is an application for leave to appeal, brought by the Body Corporate of Acacia Too ("Acacia Too"), against the whole of my judgment granted on 15 March 2017.

2. Judgment was granted in two consolidated applications. In the first application, Acacia Too was the applicant and in the second

application, Emira Property Fund Limited ("Emira") was the applicant.

3. The parties are cited as they are referred to in the judgment. I will succinctly traverse the essence of the arguments raised by Acacia Too in the notice of application for leave to appeal, to the extent appropriate.

4. It is contended that I erred in not mere motu joining the City of Johannesburg ("the COJ") as a party to the proceedings. The issue of non­ joinder was not argued at the hearing of the application. Nor had either party seen fit to join the COJ as an interested party.

5. As pertinently pointed out by Counsel for Emira, it is only in a case of joinder of necessity that a Court may mero motu raise the issue of non-joinder. Vide the case of Amalgamated Engineering Union v Minister of Labour

1949 (3) SA 637 A,

6. Based on the objective facts, the COJ had no direct or substantial interest in the subject-matter at hand, nor in the outcome. The dispute was inter partes, between two neighbouring parties who had concluded a tacit agreement.

7. The agreement was to permit Acacia Too to use the electricity generated through a transformer situate on the property of Emira.

This in circumstances in which the developer responsible for the development of the residences on Acacia Too's

property had inexplicably failed to secure an independent electricity supply for it. It is common cause that Acacia Too resolved not to take any action against the developer for this glaring omission.

8. It is axiomatic that the use of the electricity had nothing to do with the ownership of the transformer through which it was generated .

9. It is further argued that I misdirected myself in finding that the tacit agreement was terminable on reasonable notice or on breach. The facts supported this finding and nothing further needs to be added.

10. In any event, I found that the agreement was arguably void and unenforceable in terms of section 2(1) of the Alienation of Land Act, for reasons fully traversed in my judgment.

11. The pending action by Emira against Acacia Too for non-payment of electricity charges was at best collateral to the material issue in the applications, namely, whether Emira was entitled to terminate electricity supply to Acacia Too. It had no direct bearing on the relief sought.

12. Based on my findings concerning the terms of the agreement, assuming its validity, it was proved, on a balance of probabilities, that the parties had agreed that Emira would supply electricity to Acacia Too at the same rate as that charged to Emira by the COJ. For this reason, I made an order that payment should be made according to this term of the agreement from the date of my judgment to the date of termination of supply.

13. In the interests of justice and in the exercise of an inherent discretion to grant an order according Acacia Too a final opportunity

to address matters and to secure its own supply, I afforded it a period of over six months within which to do so.

14. No evidence was advanced that Acacia Too had made any reasonable efforts to secure its own independent supply, whether from the COJ or any alternate source, despite assurances made by it several years ago that it would do just that.

15. The state of affairs which prevailed at the date of hearing of the applications could not be permitted to continue indefinitely, to the ongoing detriment of Emi ra .

16.I refer further to the reasoning which is fully advanced in my comprehensive judgment handed down on 15 March 2017.

17.In the premises, I am of the view that the applicant's grounds for leave to appeal would not have a reasonable prospect of success on appeal, and that there is no other compelling reason why an appeal against my judgment should be heard. This in terms of sections 17(1)(a)(i) and 17(1) (a)(ii), respectively, of the Superior Courts Act, 10 of 2013.

18.In my view, leave to appeal should therefore be refused, with costs following the result.

19. The following order is granted:

a. the applicant's application for leave to appeal against the judgment granted on 15 March 2017 is dismissed;

b. the applicant is directed to pay the costs of this application.

___________________________

T BRENNER

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

31 May 2017

Appearances

Counsel for Applicant:

Adv S Aucamp

Instructed by:

Reaan Swanepoel Attorneys

Counsel for First Respondent: Adv JG Dobie

Instructed by:

Fluxmans Attorneys

Case number 15840/2016

Counsel for Applicant : Adv JG Dobie

Instructed by:

Fluxmans Attorneys

Counsel for First Respondent: Adv S Aucamp

Instructed by:

Reaan Swanepoel Attorneys