Henque 1838 CC v Body Corporate of Kirtlington Park (3614/2021) [2022] ZAKZDHC 42 (29 September 2022)

Henque 1838 CC v Body Corporate of Kirtlington Park (3614/2021) [2022] ZAKZDHC 42 (29 September 2022)

The court found that the amended management rule 31.1, which required all owners to pay equal levies regardless of the size of their units, was adopted without obtaining written consent from owners adversely affected by the change, as required by section 32(4) of the Sectional Titles Act. The fact that the applicant was not an owner at the time of the amendment does not preclude it from being adversely affected as the current owner. The respondent's historical practice of charging equal levies was unlawful and did not negate the statutory requirement for written consent. The applicant demonstrated locus standi and the delay in bringing the application did not prejudice the respondent....

Citation
[2022] ZAKZDHC 42
Parties
Applicant: Henque 1838 CC; Respondent: Body Corporate of Kirtlington Park
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
29 September 2022
Case Number
3614/2021
Procedural Posture
Review Application / Judgment
Outcome
Application granted; amended management rule 31.1 declared ultra vires and invalid; prescribed management rule 31(1) reinstated; respondent to pay costs.
Judges
Mlaba AJ
Legal Topics
Sectional Titles Act, Levy Calculation, Management Rules, Ultra Vires, Locus Standi
Land and Property Sectional Titles Act Levy Calculation Management Rules Ultra Vires Locus Standi

Case Brief

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Parties

Henque 1838 CC

Applicant

Body Corporate of Kirtlington Park

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicant has locus standi to challenge the amended management rule 31.1.
  2. 2 Whether the delay in bringing the application renders it unreasonable or prejudicial.
  3. 3 Whether the amendment of management rule 31.1 is unlawful and ultra vires due to lack of written consent from adversely affected owners.

Ratio Decidendi

The court found that the amended management rule 31.1, which required all owners to pay equal levies regardless of the size of their units, was adopted without obtaining written consent from owners adversely affected by the change, as required by section 32(4) of the Sectional Titles Act. The fact that the applicant was not an owner at the time of the amendment does not preclude it from being adversely affected as the current owner. The respondent's historical practice of charging equal levies was unlawful and did not negate the statutory requirement for written consent. The applicant demonstrated locus standi and the delay in bringing the application did not prejudice the respondent....

Court Disposition

Application granted; amended management rule 31.1 declared ultra vires and invalid; prescribed management rule 31(1) reinstated; respondent to pay costs.

Orders

  • The amended management rule 31.1 adopted by unanimous resolution at a meeting held by the respondent on 27 July 2016 is declared ultra vires and invalid.
  • Management rule 31.1 shall be replaced by the corresponding rule of the prescribed management rules in schedule 8 of the regulations of the Sectional Titles Act 95 of 1986, namely rule 31(1), and owner’s contribution to the administration fund must be calculated according to the prescribed management rule 31(1)...