L.A and Another v Body Corporate of London Place and Others (11463/2023) [2024] ZAWCHC 92; 2025 (1) SA 147 (WCC) (27 March 2024)

L.A and Another v Body Corporate of London Place and Others (11463/2023) [2024] ZAWCHC 92; 2025 (1) SA 147 (WCC) (27 March 2024)

The court held that ordinary members of a body corporate are not members of its governing body for purposes of section 13(1)(e) of the Prescription Act. Only trustees constitute the governing body, as they are entrusted with the powers and functions of the body corporate under the Sectional Titles Schemes Management Act. Since neither applicant was ever a trustee, the statutory impediment delaying prescription does not apply. The body corporate's claim for historic arrear levies against the applicants has therefore prescribed, and the body corporate is precluded from relying on the prescribed debt to refuse issuing a levy clearance certificate. The court refused condonation for the late...

Citation
[2024] ZAWCHC 92
Parties
Applicant: L[...] E[...] A[...]; Applicant: H[...] A[...]; Respondent: Body Corporate of London Place; Respondent: Stilus Underwriting Managers (Pty) Ltd; Respondent: One Insurance Underwriting Managers (Pty) Ltd t/a ONE; Respondent: Registrar of Deeds: Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
27 March 2024
Case Number
11463/2023
Procedural Posture
Civil Application / Judgment After Opposed Motion
Outcome
Declaratory relief granted in favour of the applicants; the body corporate's claim for historic arrear levies is prescribed.
Judges
J Cloete
Legal Topics
Prescription Act, Sectional Title Schemes Management Act, Levy Clearance Certificate, Subrogation, Arrear Levies, Condonation
Land and Property Civil Procedure Prescription Act Sectional Title Schemes Management Act Levy Clearance Certificate Subrogation Arrear Levies Condonation

Case Brief

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Parties

L[...] E[...] A[...]

Applicant

H[...] A[...]

Applicant

Body Corporate of London Place

Respondent

Stilus Underwriting Managers (Pty) Ltd

Respondent

One Insurance Underwriting Managers (Pty) Ltd t/a ONE

Respondent

Registrar of Deeds: Cape Town

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the claim for historic arrear levies by the body corporate against the applicants has prescribed under the Prescription Act.
  2. 2 Whether ordinary members of a body corporate are members of its governing body for purposes of section 13(1)(e) of the Prescription Act.
  3. 3 Whether the body corporate may refuse to issue a levy clearance certificate based on a prescribed debt.

Ratio Decidendi

The court held that ordinary members of a body corporate are not members of its governing body for purposes of section 13(1)(e) of the Prescription Act. Only trustees constitute the governing body, as they are entrusted with the powers and functions of the body corporate under the Sectional Titles Schemes Management Act. Since neither applicant was ever a trustee, the statutory impediment delaying prescription does not apply. The body corporate's claim for historic arrear levies against the applicants has therefore prescribed, and the body corporate is precluded from relying on the prescribed debt to refuse issuing a levy clearance certificate. The court refused condonation for the late...

Court Disposition

Declaratory relief granted in favour of the applicants; the body corporate's claim for historic arrear levies is prescribed.

Orders

  • It is declared that the subrogated debt of R134 222.05 alleged by the first respondent to be owing to it by the first and second applicants in respect of historic arrear levies has prescribed in terms of section 10 read with section 11(d) of the Prescription Act 68 of 1969.
  • The first respondent is precluded from relying on the prescribed debt for purposes of section 15B(3)(a)(i)(aa) of the Sectional Titles Act 95 of 1986.