Henque 1838 CC v Maxprop Holdings (Pty) Ltd and Others (759/2022) [2023] ZASCA 131 (12 October 2023)

Henque 1838 CC v Maxprop Holdings (Pty) Ltd and Others (759/2022) [2023] ZASCA 131 (12 October 2023)

The claims asserted by the appellant for repayment of funds and correction of financial statements are claims belonging to the body corporate under section 2(7) of the Sectional Title Schemes Management Act. The appellant, as a sectional title owner, was required to follow the statutory procedure set out in section 9, which includes serving written notice on the body corporate and, if necessary, applying for the appointment of a curator ad litem. The appellant did not comply with these requirements and did not establish a direct and substantial interest in the relief claimed. The loss alleged was suffered by the body corporate, not the individual owner. The argument that the body...

Citation
[2023] ZASCA 131
Parties
Appellant: Henque 1838 CC; Respondent: Maxprop Holdings (Pty) Ltd; Respondent: The Body Corporate of Kirtlington Park; Respondent: The Body Corporate of Kirtlington Green; Respondent: The Body Corporate of Kirtlington Park 2; Respondent: The Body Corporate of Kirtlington Park 3; Respondent: Kirtlington Park Home Owners Association; Respondent: Lindsay Shaun Tragott Vorwerg; Respondent: Enid Helena Aylward N O; Respondent: Adele Jones N O; Respondent: Neville Aylward N O; Respondent: Renee Kenwood N O; Respondent: Marco Rui Alves; Respondent: Kevin Arthur Wright; Respondent: Alyson Jane Wright; Respondent: Gary Michael Webster; Respondent: Alison Vicki Webster; Respondent: Robert Anthony Ostler
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 October 2023
Case Number
759/2022
Procedural Posture
Civil Appeal / Appeal From Kwa Zulu Natal Local Division of the High Court, Durban
Outcome
Appeal dismissed with costs, including costs of two counsel where so employed.
Judges
Ponnan, Meyer, Goosen, Molefe, Mali
Legal Topics
Sectional Title Schemes Management Act, Locus Standi, Curator Ad Litem, Body Corporate Powers, Levy Calculation
Land and Property Civil Procedure Sectional Title Schemes Management Act Locus Standi Curator Ad Litem Body Corporate Powers Levy Calculation

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Parties

Henque 1838 CC

Appellant

Maxprop Holdings (Pty) Ltd

Respondent

The Body Corporate of Kirtlington Park

Respondent

The Body Corporate of Kirtlington Green

Respondent

The Body Corporate of Kirtlington Park 2

Respondent

The Body Corporate of Kirtlington Park 3

Respondent

Kirtlington Park Home Owners Association

Respondent

Lindsay Shaun Tragott Vorwerg

Respondent

Enid Helena Aylward N O

Respondent

Adele Jones N O

Respondent

Neville Aylward N O

Respondent

Renee Kenwood N O

Respondent

Marco Rui Alves

Respondent

Kevin Arthur Wright

Respondent

Alyson Jane Wright

Respondent

Gary Michael Webster

Respondent

Alison Vicki Webster

Respondent

Robert Anthony Ostler

Respondent

Procedural Posture

Civil Appeal / Appeal From Kwa Zulu Natal Local Division of the High Court, Durban

Legal Issues

  1. 1 Whether a sectional title owner has standing to litigate in its own name for repayment to the body corporate of funds allegedly unlawfully paid from the body corporate's bank account.
  2. 2 Whether the appellant followed the statutory procedure under section 9 of the Sectional Title Schemes Management Act to assert claims on behalf of the body corporate.
  3. 3 Whether the claims asserted by the appellant are claims in the hands of the body corporate alone or also in the hands of the individual owner.

Ratio Decidendi

The claims asserted by the appellant for repayment of funds and correction of financial statements are claims belonging to the body corporate under section 2(7) of the Sectional Title Schemes Management Act. The appellant, as a sectional title owner, was required to follow the statutory procedure set out in section 9, which includes serving written notice on the body corporate and, if necessary, applying for the appointment of a curator ad litem. The appellant did not comply with these requirements and did not establish a direct and substantial interest in the relief claimed. The loss alleged was suffered by the body corporate, not the individual owner. The argument that the body...

Court Disposition

Appeal dismissed with costs, including costs of two counsel where so employed.

Orders

  • The appeal is dismissed with costs, including those of two counsel where so employed.