Cassim and Another v Voyager Property Management (Pty) Ltd and Others, Cassim and Another v St Moritz Body Corporate (Pty) Ltd and Others (SCA) [2011] ZASCA 143; 2011 (6) SA 544 (SCA); [2011] 4 All SA 587 (SCA) (23 September 2011)

Cassim and Another v Voyager Property Management (Pty) Ltd and Others, Cassim and Another v St Moritz Body Corporate (Pty) Ltd and Others (SCA) [2011] ZASCA 143; 2011 (6) SA 544 (SCA); [2011] 4 All SA 587 (SCA) (23 September 2011)

The Supreme Court of Appeal held that the appellants lacked locus standi to institute proceedings on behalf of the body corporate in respect of claims C, D and E, as they failed to comply with section 41 of the Sectional Titles Act 95 of 1986. Section 41 requires an owner to serve notice on the body corporate and, if the body corporate fails to act, to apply for the appointment of a curator ad litem to investigate and, if appropriate, institute proceedings. The fact that the body corporate was divided or dysfunctional did not exempt the appellants from compliance. The suspension of trustees meant the appellants could not act as trustees, and any further action could only be taken as...

Citation
[2011] ZASCA 143
Parties
Appellant: Shereen Cassim; Appellant: Neilopahr Cassim; Respondent: Voyager Property Management (Pty) Ltd; Respondent: Bellair Management Services t/a BMS Estate Agents; Respondent: Deon J J Strauss N O; Respondent: Juan Le Fevre N O; Defendant: St Moritz Body Corporate; Defendant: Veronica Swanepoel N O; Respondent: Brink Property Administration
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 September 2011
Case Number
574/10
Procedural Posture
Civil Appeal / Appeal From Kwa Zulu Natal High Court (durban), Judgment on Locus Standi as Separated Issue Under Rule 33(4)
Outcome
Appeal dismissed. Costs orders confirmed and supplemented as per operative orders.
Judges
Cloete, Ponnan, Shongwe, Leach, Seriti
Legal Topics
Sectional Titles Act, Locus Standi, Curator Ad Litem, Body Corporate Proceedings, Fiduciary Duties, Exception and Costs
Land and Property Civil Procedure Sectional Titles Act Locus Standi Curator Ad Litem Body Corporate Proceedings Fiduciary Duties Exception and Costs

Case Brief

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Parties

Shereen Cassim

Appellant

Neilopahr Cassim

Appellant

Voyager Property Management (Pty) Ltd

Respondent

Bellair Management Services t/a BMS Estate Agents

Respondent

Deon J J Strauss N O

Respondent

Juan Le Fevre N O

Respondent

St Moritz Body Corporate

Defendant

Veronica Swanepoel N O

Defendant

Brink Property Administration

Respondent

Procedural Posture

Civil Appeal / Appeal From Kwa Zulu Natal High Court (durban), Judgment on Locus Standi as Separated Issue Under Rule 33(4)

Legal Issues

  1. 1 Whether the appellants had locus standi to institute proceedings on behalf of the body corporate in respect of claims C, D and E.
  2. 2 Whether compliance with section 41 of the Sectional Titles Act 95 of 1986 was required before instituting proceedings as owners.
  3. 3 Whether the suspension of trustees affected the appellants' standing to continue the action.

Ratio Decidendi

The Supreme Court of Appeal held that the appellants lacked locus standi to institute proceedings on behalf of the body corporate in respect of claims C, D and E, as they failed to comply with section 41 of the Sectional Titles Act 95 of 1986. Section 41 requires an owner to serve notice on the body corporate and, if the body corporate fails to act, to apply for the appointment of a curator ad litem to investigate and, if appropriate, institute proceedings. The fact that the body corporate was divided or dysfunctional did not exempt the appellants from compliance. The suspension of trustees meant the appellants could not act as trustees, and any further action could only be taken as...

Court Disposition

Appeal dismissed. Costs orders confirmed and supplemented as per operative orders.

Orders

  • The appeal is dismissed.
  • The first respondent’s application to supplement the record is dismissed with costs.