De La Harpe v Body Corporate of Bella Toscana (10088/2013) [2014] ZAKZDHC 63 (28 October 2014)

De La Harpe v Body Corporate of Bella Toscana (10088/2013) [2014] ZAKZDHC 63 (28 October 2014)

The court found that the garden wall in question encloses the applicant's exclusive use area and, in terms of section 37(1)(b) of the Sectional Titles Act, the responsibility for its repair and maintenance falls on the applicant as the exclusive beneficiary. The applicant failed to establish breaches of statutory duties or substantial prejudice sufficient to justify the appointment of an administrator under section 46. The court dismissed the main application and granted the respondent's counter-application, ordering the applicant to remediate, demolish, and rebuild the wall at her own cost, in compliance with building regulations and to the satisfaction of the local authority. Costs...

Citation
[2014] ZAKZDHC 63
Parties
Applicant: Marguerite Anne Catherine De La Harpe; Respondent: Body Corporate of Bella Toscana
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
28 October 2014
Case Number
10088/2013
Procedural Posture
Civil Application / Final Judgment After Opposed Application and Counter Application
Outcome
Application for appointment of administrator dismissed with costs; counter-application granted ordering applicant to remediate, demolish, and rebuild the wall at her own cost.
Judges
M R Chetty
Legal Topics
Sectional Titles Act, Exclusive Use Area Liability, Appointment of Administrator, Special Levy, Structural Defects, Maintenance Obligations
Land and Property Civil Procedure Sectional Titles Act Exclusive Use Area Liability Appointment of Administrator Special Levy Structural Defects Maintenance Obligations

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Parties

Marguerite Anne Catherine De La Harpe

Applicant

Body Corporate of Bella Toscana

Respondent

Procedural Posture

Civil Application / Final Judgment After Opposed Application and Counter Application

Legal Issues

  1. 1 Is the applicant or the body corporate responsible for the repair and maintenance of the garden wall enclosing the applicant's exclusive use area?
  2. 2 Does the applicant meet the threshold for the appointment of an administrator under section 46 of the Sectional Titles Act?
  3. 3 Should the costs of demolition, repair, and rebuilding of the wall be borne by the applicant or the body corporate?

Ratio Decidendi

The court found that the garden wall in question encloses the applicant's exclusive use area and, in terms of section 37(1)(b) of the Sectional Titles Act, the responsibility for its repair and maintenance falls on the applicant as the exclusive beneficiary. The applicant failed to establish breaches of statutory duties or substantial prejudice sufficient to justify the appointment of an administrator under section 46. The court dismissed the main application and granted the respondent's counter-application, ordering the applicant to remediate, demolish, and rebuild the wall at her own cost, in compliance with building regulations and to the satisfaction of the local authority. Costs...

Court Disposition

Application for appointment of administrator dismissed with costs; counter-application granted ordering applicant to remediate, demolish, and rebuild the wall at her own cost.

Orders

  • The applicant's application for the appointment of an administrator in terms of section 46 of the Sectional Titles Act, No. 95 of 1986 is dismissed with costs, including costs occasioned by the urgent application on 16 September 2013.
  • The applicant is directed and ordered to remediate and/or demolish the wall on her property, depicted on annexure 'A' to the applicant's founding affidavit, and to repair and/or rebuild same in compliance with the National Building Regulations and Building Standards Act and to the satisfaction of the Building...