Mobile Telephone Networks (Pty) Ltd and Another v Spilhaus Property Holdings (Pty) Ltd and Others (208/2017) [2018] ZASCA 16; 2018 (3) SA 396 (SCA) (15 March 2018)

Mobile Telephone Networks (Pty) Ltd and Another v Spilhaus Property Holdings (Pty) Ltd and Others (208/2017) [2018] ZASCA 16; 2018 (3) SA 396 (SCA) (15 March 2018)

The Supreme Court of Appeal held that the respondents, as sectional title unit owners, lacked locus standi to institute proceedings regarding the common property without first complying with section 41(1) of the Sectional Titles Act. The statutory scheme requires that, where the body corporate fails to act, an owner must serve notice on the body corporate and, if no action is taken, apply to court for the appointment of a curator ad litem to act on behalf of the body corporate. The respondents did not follow this procedure, and the body corporate was not called upon to act. The court rejected the argument that trustee deadlock justified bypassing the statutory process, noting that section...

Citation
[2018] ZASCA 16
Parties
Appellant: Mobile Telephone Networks (Pty) Ltd; Appellant: Alphen Farm Estate in Constantia (Pty) Ltd; Respondent: Spilhaus Property Holdings (Pty) Ltd; Respondent: Jan Arseen Joris De Decker; Respondent: The Trustees for the time being of the Rietvlei Trust; Respondent: Martin Ryman; Respondent: Jade Ann Ryman; Respondent: Frances Ilse Hills; Respondent: The Ristelle Investment Trust; Respondent: Rene Adele Larsen; Respondent: Susan Martin N.O.; Respondent: Michael Black N.O.; Respondent: Pamela Goldie Buckham; Respondent: Alyson Roslynne Rink; Respondent: Raphael Unit 104 (Pty) Ltd; Respondent: Marc Andre Paul Marie Cosse; Respondent: Jane Handsley Porter; Respondent: L Y Investments (Pty) Ltd; Respondent: Janet Beyer Russel; Respondent: Quelle Foundation; Respondent: Cherokee Rose Properties 199 CC; Respondent: Ronald Alexander Rink
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 March 2018
Case Number
208/2017
Procedural Posture
Civil Appeal / Appeal From Western Cape Division, Cape Town
Outcome
Appeal upheld; order of the court below set aside and substituted with dismissal of the application with costs, including costs of two counsel.
Judges
Ponnan, Saldulker, Swain, Plasket, Makgoka
Legal Topics
Sectional Title Act, Locus Standi, Curator Ad Litem, Common Property Disputes, Body Corporate Powers
Land and Property Civil Procedure Sectional Title Act Locus Standi Curator Ad Litem Common Property Disputes Body Corporate Powers

Case Brief

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Parties

Mobile Telephone Networks (Pty) Ltd

Appellant

Alphen Farm Estate in Constantia (Pty) Ltd

Appellant

Spilhaus Property Holdings (Pty) Ltd

Respondent

Jan Arseen Joris De Decker

Respondent

The Trustees for the time being of the Rietvlei Trust

Respondent

Martin Ryman

Respondent

Jade Ann Ryman

Respondent

Frances Ilse Hills

Respondent

The Ristelle Investment Trust

Respondent

Rene Adele Larsen

Respondent

Susan Martin N.O.

Respondent

Michael Black N.O.

Respondent

Pamela Goldie Buckham

Respondent

Alyson Roslynne Rink

Respondent

Raphael Unit 104 (Pty) Ltd

Respondent

Marc Andre Paul Marie Cosse

Respondent

Jane Handsley Porter

Respondent

L Y Investments (Pty) Ltd

Respondent

Janet Beyer Russel

Respondent

Quelle Foundation

Respondent

Cherokee Rose Properties 199 CC

Respondent

Ronald Alexander Rink

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division, Cape Town

Legal Issues

  1. 1 Whether sectional title unit owners have locus standi to institute proceedings regarding common property without following the procedure in section 41(1) of the Sectional Titles Act.
  2. 2 Whether the respondents were entitled to seek interdictory relief directly or were required to apply for the appointment of a curator ad litem.
  3. 3 Whether the body corporate's failure to act justified direct action by individual owners.

Ratio Decidendi

The Supreme Court of Appeal held that the respondents, as sectional title unit owners, lacked locus standi to institute proceedings regarding the common property without first complying with section 41(1) of the Sectional Titles Act. The statutory scheme requires that, where the body corporate fails to act, an owner must serve notice on the body corporate and, if no action is taken, apply to court for the appointment of a curator ad litem to act on behalf of the body corporate. The respondents did not follow this procedure, and the body corporate was not called upon to act. The court rejected the argument that trustee deadlock justified bypassing the statutory process, noting that section...

Court Disposition

Appeal upheld; order of the court below set aside and substituted with dismissal of the application with costs, including costs of two counsel.

Orders

  • The appeal is upheld with costs, including those consequent upon the employment of two counsel.
  • The order of the court below is set aside and substituted with: 'The application is dismissed with costs, such costs to include those of two counsel.'