Central Developments Tshwane (Pty) Ltd and Another v Body Corporate, Twee Riviere Aftree Oord (635/2019) [2020] ZASCA 107 (21 September 2020)

Central Developments Tshwane (Pty) Ltd and Another v Body Corporate, Twee Riviere Aftree Oord (635/2019) [2020] ZASCA 107 (21 September 2020)

The Supreme Court of Appeal held that the Body Corporate's power to institute proceedings for damage to common property is conferred by section 2(7)(b) of the Sectional Title Schemes Management Act, and is not subject to the requirement of a special resolution under section 2(7)(e). The special plea was based on a misconception of the statutory scheme, as the power to sue for damage to common property exists independently of the special resolution requirement, which applies only to other types of claims against the developer. The appeal was dismissed, and the orders relating to ratification and costs were set aside as unnecessary.

Citation
[2020] ZASCA 107
Parties
Appellant: Central Developments Tshwane (Pty) Ltd t/a Central Developments Property Group; Appellant: Wilcoprop 202 (Pty) Ltd; Respondent: Body Corporate of Twee Riviere Aftree Oord (Sectional Title Scheme SS0052110)
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 September 2020
Case Number
635/2019
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of High Court, Pretoria
Outcome
Appeal dismissed. The special plea is dismissed. Each party to pay its own costs in both the High Court and the Supreme Court of Appeal.
Judges
Wallis, Molemela, Plasket, Ledwaba, Unterhalter
Legal Topics
Sectional Title Schemes Management Act, Body Corporate Powers, Special Resolution Requirement, Developer Liability, Damage to Common Property, Ratification of Resolution
Land and Property Civil Procedure Delict Sectional Title Schemes Management Act Body Corporate Powers Special Resolution Requirement Developer Liability Damage to Common Property +1 more

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Parties

Central Developments Tshwane (Pty) Ltd t/a Central Developments Property Group

Appellant

Wilcoprop 202 (Pty) Ltd

Appellant

Body Corporate of Twee Riviere Aftree Oord (Sectional Title Scheme SS0052110)

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of High Court, Pretoria

Legal Issues

  1. 1 Whether the Body Corporate required a special resolution to institute action against the developer for damage to common property.
  2. 2 Whether section 2(7)(b) of the Sectional Title Schemes Management Act confers power on the Body Corporate to sue for damage to common property without a special resolution.
  3. 3 Whether the special plea based on the absence of a special resolution was valid.

Ratio Decidendi

The Supreme Court of Appeal held that the Body Corporate's power to institute proceedings for damage to common property is conferred by section 2(7)(b) of the Sectional Title Schemes Management Act, and is not subject to the requirement of a special resolution under section 2(7)(e). The special plea was based on a misconception of the statutory scheme, as the power to sue for damage to common property exists independently of the special resolution requirement, which applies only to other types of claims against the developer. The appeal was dismissed, and the orders relating to ratification and costs were set aside as unnecessary.

Court Disposition

Appeal dismissed. The special plea is dismissed. Each party to pay its own costs in both the High Court and the Supreme Court of Appeal.

Orders

  • The appeal is dismissed.
  • The order of the High Court is set aside and replaced by: 'The special plea is dismissed. Each party is to pay its own costs relating to the preparation and argument of the special plea.'