Essa NO and Another v Body Corporate of Kingsway House and Another; Body Corporate of Kingsway House and Another and Essa NO and Another (9931/2008) [2009] ZAKZHC 5 (20 February 2009)

Essa NO and Another v Body Corporate of Kingsway House and Another; Body Corporate of Kingsway House and Another and Essa NO and Another (9931/2008) [2009] ZAKZHC 5 (20 February 2009)

The court found that material disputes of fact exist regarding the owners' rights to erect advertising signs, the allocation of exclusive use areas, the removal of the building's name sign, the alleged abusive conduct, and the erection of a roof. These disputes cannot be resolved on the papers and require oral evidence. The application for interim relief is therefore referred to trial. The computation and payment of levies are also disputed and should be postponed until the application for the appointment of an administrator is determined. The raising of special levies to fund litigation against the owners is inherently unfair and should be considered by all members of the Body Corporate...

Citation
[2009] ZAKZHC 5
Parties
Applicant: Osman Essa N.O.; Applicant: Abdool Kader Essa N.O.; Respondent: Body Corporate of Kingsway House; Respondent: Outdoor Network Limited; Applicant: Body Corporate of Kingsway House; Respondent: Osman Essa N.O.; Respondent: Abdool Kader Essa N.O.
Court
High Courts - Kwazulu Natal
Jurisdiction
South Africa
Judgment Date
20 February 2009
Case Number
9931/2008
Procedural Posture
Civil Application / Referral to Trial and Postponement Pending Determination of Administrator Application
Outcome
The first application is referred to trial; the second application is postponed pending determination of the administrator application.
Judges
Swain
Legal Topics
Sectional Titles Act, Exclusive Use Rights, Interdictory Relief, Levies and Special Levies, Rectification of Notarial Cession
Land and Property Civil Procedure Sectional Titles Act Exclusive Use Rights Interdictory Relief Levies and Special Levies Rectification of Notarial Cession

Case Brief

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Parties

Osman Essa N.O.

Applicant

Abdool Kader Essa N.O.

Applicant

Body Corporate of Kingsway House

Respondent

Outdoor Network Limited

Respondent

Body Corporate of Kingsway House

Applicant

Osman Essa N.O.

Respondent

Abdool Kader Essa N.O.

Respondent

Procedural Posture

Civil Application / Referral to Trial and Postponement Pending Determination of Administrator Application

Legal Issues

  1. 1 Whether the owners are entitled to interim interdictory relief pending rectification of the notarial cession.
  2. 2 Whether disputes regarding exclusive use rights and other relief require oral evidence.
  3. 3 Whether the Body Corporate may compel payment of special and ordinary levies by the owners.

Ratio Decidendi

The court found that material disputes of fact exist regarding the owners' rights to erect advertising signs, the allocation of exclusive use areas, the removal of the building's name sign, the alleged abusive conduct, and the erection of a roof. These disputes cannot be resolved on the papers and require oral evidence. The application for interim relief is therefore referred to trial. The computation and payment of levies are also disputed and should be postponed until the application for the appointment of an administrator is determined. The raising of special levies to fund litigation against the owners is inherently unfair and should be considered by all members of the Body Corporate...

Court Disposition

The first application is referred to trial; the second application is postponed pending determination of the administrator application.

Orders

  • The first application (Case 6292/2008) is referred to trial.
  • The notice of motion stands as summons in the trial.