Body Corporate of Windsor v Mount Amanzi Shareblock Limited (12240/2015) [2016] ZAGPPHC 595 (12 April 2016)

Body Corporate of Windsor v Mount Amanzi Shareblock Limited (12240/2015) [2016] ZAGPPHC 595 (12 April 2016)

The court found that the applicants had established peaceful possession and entitlement to access the scheme property and respondent's facilities by virtue of registered servitudes. The respondent's unilateral increase of levies and subsequent restriction of access constituted spoliation, as the deprivation was effected without a court order and in the absence of agreement on the levy increase. The respondent's right to determine levies, though contractually and servitudally grounded, must be exercised reasonably and cannot justify self-help measures. The applicants were entitled to restoration of access and interim interdicts pending final determination of the levy dispute. The...

Citation
[2016] ZAGPPHC 595
Parties
Applicant: Body Corporate of Windsor Heights Sectional Title Scheme; Applicant: Sky Africa Properties 24 CC; Applicant: Walter Szezinski; Applicant: Irfaan Khota; Applicant: Nicovaneck; Applicant: Wilhelmina van Eck; Applicant: Ina van Staden; Applicant: Theuns F Dreyer; Applicant: Dina Schoeman; Applicant: Albertus Schoeman; Applicant: Gina Jacobs; Applicant: Gideon Jacobs; Applicant: Marius Pretorius; Applicant: Melissa Pretorius; Applicant: Eric Rycroft; Applicant: Isobel Rycroft; Applicant: Lianie Schnaar-Campbell; Applicant: Edward Aucamp; Applicant: Clive Gomez; Applicant: Lizel Gomez; Applicant: Mary Anne van der Westhuizen; Applicant: Fred Trentelman; Applicant: Jaco Swart; Respondent: Mount Amanzi Shareblock Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 April 2016
Case Number
12240/2015
Procedural Posture
Urgent Application / Final Order and Counterclaim Disposition
Outcome
Application granted; counterclaim dismissed with costs.
Judges
N N Mavundla
Legal Topics
Mandament Van Spolie, Servitude Right of Way, Levy Dispute, Sectional Title Scheme, Interdict, Counterclaim Dismissal
Land and Property Civil Procedure Mandament Van Spolie Servitude Right of Way Levy Dispute Sectional Title Scheme Interdict Counterclaim Dismissal

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 15 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Body Corporate of Windsor Heights Sectional Title Scheme

Applicant

Sky Africa Properties 24 CC

Applicant

Walter Szezinski

Applicant

Irfaan Khota

Applicant

Nicovaneck

Applicant

Wilhelmina van Eck

Applicant

Ina van Staden

Applicant

Theuns F Dreyer

Applicant

Dina Schoeman

Applicant

Albertus Schoeman

Applicant

Gina Jacobs

Applicant

Gideon Jacobs

Applicant

Marius Pretorius

Applicant

Melissa Pretorius

Applicant

Eric Rycroft

Applicant

Isobel Rycroft

Applicant

Lianie Schnaar-Campbell

Applicant

Edward Aucamp

Applicant

Clive Gomez

Applicant

Lizel Gomez

Applicant

Mary Anne van der Westhuizen

Applicant

Fred Trentelman

Applicant

Jaco Swart

Applicant

Mount Amanzi Shareblock Limited

Respondent

Procedural Posture

Urgent Application / Final Order and Counterclaim Disposition

Legal Issues

  1. 1 Whether the respondent committed spoliation by restricting applicants' access to property and facilities.
  2. 2 Whether the respondent's unilateral increase of levies justified the denial of access.
  3. 3 Whether the applicants are entitled to restoration of access and interim interdicts.

Ratio Decidendi

The court found that the applicants had established peaceful possession and entitlement to access the scheme property and respondent's facilities by virtue of registered servitudes. The respondent's unilateral increase of levies and subsequent restriction of access constituted spoliation, as the deprivation was effected without a court order and in the absence of agreement on the levy increase. The respondent's right to determine levies, though contractually and servitudally grounded, must be exercised reasonably and cannot justify self-help measures. The applicants were entitled to restoration of access and interim interdicts pending final determination of the levy dispute. The...

Court Disposition

Application granted; counterclaim dismissed with costs.

Orders

  • The respondent is ordered to forthwith restore the applicants' unrestricted access to the Windsor Heights Sectional Scheme property.
  • The respondent is ordered to forthwith restore the applicants' unrestricted use of the access road to the scheme property traversing the respondent's property.