Melki Propdev Initiatives (Pty) Ltd v Cunningham (AR39/2024) [2025] ZAKZPHC 40 (24 April 2025)

Melki Propdev Initiatives (Pty) Ltd v Cunningham (AR39/2024) [2025] ZAKZPHC 40 (24 April 2025)

The court found that clause 11.7 of the sale agreement unlawfully and unfairly restricted the respondent's and other owners' rights to vote for trustees and the chairperson of the body corporate, contrary to the Sectional Titles Act and prescribed management rules. The clause unduly favoured the developer, was perpetual in effect, and violated public policy as informed by constitutional values. The court held that the principle of pacta sunt servanda does not override considerations of fairness and public policy. The non-joinder of other owners and the body corporate was not fatal, as they would not suffer prejudice and their rights would be protected by the relief granted. The clause was...

Citation
[2025] ZAKZPHC 40
Parties
Appellant: Melki Propdev Initiatives (Pty) Ltd; Respondent: Eileen Cunningham
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
24 April 2025
Case Number
AR39/2024
Procedural Posture
Civil Appeal / Appeal From the Kwa Zulu Natal Division of the High Court, Pietermaritzburg
Outcome
Appeal dismissed except for amendments to the declaratory relief; clause 11.7 declared unlawful and unenforceable and severed from the contract; costs awarded against appellant on scale B.
Judges
Henriques, N Nako, Mlaba
Legal Topics
Sectional Titles Act, Management Rules, Public Policy in Contract, Joinder, Condonation, Severance of Contract Terms
Land and Property Civil Procedure Commercial and Corporate Sectional Titles Act Management Rules Public Policy in Contract Joinder Condonation +1 more

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Parties

Melki Propdev Initiatives (Pty) Ltd

Appellant

Eileen Cunningham

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether condonation should be granted for the late filing and reinstatement of the appeal.
  2. 2 Whether the non-joinder of other owners and the body corporate was fatal to the proceedings.
  3. 3 Whether clause 11.7 of the sale agreement unlawfully and unfairly restricts owners' voting rights and is unenforceable.

Ratio Decidendi

The court found that clause 11.7 of the sale agreement unlawfully and unfairly restricted the respondent's and other owners' rights to vote for trustees and the chairperson of the body corporate, contrary to the Sectional Titles Act and prescribed management rules. The clause unduly favoured the developer, was perpetual in effect, and violated public policy as informed by constitutional values. The court held that the principle of pacta sunt servanda does not override considerations of fairness and public policy. The non-joinder of other owners and the body corporate was not fatal, as they would not suffer prejudice and their rights would be protected by the relief granted. The clause was...

Court Disposition

Appeal dismissed except for amendments to the declaratory relief; clause 11.7 declared unlawful and unenforceable and severed from the contract; costs awarded against appellant on scale B.

Orders

  • The appellant is granted condonation for the late filing of its notice of appeal with no order as to costs.
  • The lapsed appeal is reinstated with no order as to costs.