De Lange v Bell and Others (013203/12) [2013] ZAKZDHC 36 (6 August 2013)

De Lange v Bell and Others (013203/12) [2013] ZAKZDHC 36 (6 August 2013)

The court found that the arbitration agreement contained in management rule 71 of the Sectional Titles Act does not cover disputes where an interdict is sought, such as an order to demolish or remove structures. The arbitrator lacked jurisdiction to grant mandatory interdicts, and there was no separate written arbitration agreement between the parties conferring such jurisdiction. Consequently, the arbitration award was a nullity and could not be made an order of court under section 31 of the Arbitration Act. Both parties requested the appointment of an administrator due to the dysfunctional state of the body corporate, and the court exercised its power under section 46 of the Sectional...

Citation
[2013] ZAKZDHC 36
Parties
Applicant: A J De Lange; Respondent: E Bell; Respondent: Tollner Body Corporate; Respondent: Ethekwini Municipality
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
6 August 2013
Case Number
013203/12
Procedural Posture
Civil Application / Final Judgment
Outcome
Application to make the arbitration award an order of court dismissed; counter-application dismissed; administrator appointed to Tollner Body Corporate; no order as to costs.
Judges
Ploos van Amstel
Legal Topics
Sectional Titles Act, Arbitration Award Enforcement, Mandatory Interdict, Appointment of Administrator
Land and Property Civil Procedure Sectional Titles Act Arbitration Award Enforcement Mandatory Interdict Appointment of Administrator

Case Brief

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Parties

A J De Lange

Applicant

E Bell

Respondent

Tollner Body Corporate

Respondent

Ethekwini Municipality

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the arbitration award can be made an order of court under section 31 of the Arbitration Act.
  2. 2 Whether the arbitrator had jurisdiction to grant mandatory interdicts under management rule 71.
  3. 3 Whether an administrator should be appointed to the Tollner Body Corporate under section 46 of the Sectional Titles Act.

Ratio Decidendi

The court found that the arbitration agreement contained in management rule 71 of the Sectional Titles Act does not cover disputes where an interdict is sought, such as an order to demolish or remove structures. The arbitrator lacked jurisdiction to grant mandatory interdicts, and there was no separate written arbitration agreement between the parties conferring such jurisdiction. Consequently, the arbitration award was a nullity and could not be made an order of court under section 31 of the Arbitration Act. Both parties requested the appointment of an administrator due to the dysfunctional state of the body corporate, and the court exercised its power under section 46 of the Sectional...

Court Disposition

Application to make the arbitration award an order of court dismissed; counter-application dismissed; administrator appointed to Tollner Body Corporate; no order as to costs.

Orders

  • The application for the arbitration award to be made an order of court is dismissed.
  • The counter-application relating to the signing of building plans is dismissed.