Oribel Properties 13 (Pty) Ltd and Another v Blue Dot Properties 271 (Pty) Ltd and Others (454/2009) [2010] ZASCA 78; [2010] 4 All SA 282 (SCA) (28 May 2010)

Oribel Properties 13 (Pty) Ltd and Another v Blue Dot Properties 271 (Pty) Ltd and Others (454/2009) [2010] ZASCA 78; [2010] 4 All SA 282 (SCA) (28 May 2010)

The Supreme Court of Appeal held that the developer's right of extension over the plant area was reserved specifically for the benefit of section 401, as reflected in the registered plans and documents. The developer was not entitled to transfer or cede this right to any person other than the owner of section 401, nor to incorporate the plant area into another section. The court found that financial considerations alone did not constitute 'changed circumstances' justifying deviation from the terms of the reservation. The developer's attempt to transfer the right to the seventh respondent was not sanctioned by the Sectional Titles Act. The appellants, as owners of section 401, had standing...

Citation
[2010] ZASCA 78
Parties
Appellant: Oribel Properties 13 (Pty) Ltd; Appellant: Interactive Africa (Pty) Ltd; Respondent: Blue Dot Properties 271 (Pty) Ltd; Respondent: Gossow Harding Construction (Pty) Ltd; Respondent: Rank Sharp (Pty) Ltd; Respondent: The Body Corporate of the Thebe Hosken House Sectional Title Scheme; Respondent: The Registrar of Deeds; Respondent: The Surveyor General; Respondent: Xantha Properties 16 (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 May 2010
Case Number
454/2009
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court (cape Town), First Instance
Outcome
Appeal upheld with costs, including costs of two counsel where so employed. The order of the court a quo is set aside and substituted.
Judges
Cloete, Ponnan, Malan, Bosielo, Leach
Legal Topics
Sectional Titles Act, Real Right of Extension, Standing of Unit Owner, Changed Circumstances, Exclusive Use Area, Interdict
Land and Property Civil Procedure Sectional Titles Act Real Right of Extension Standing of Unit Owner Changed Circumstances Exclusive Use Area Interdict

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Oribel Properties 13 (Pty) Ltd

Appellant

Interactive Africa (Pty) Ltd

Appellant

Blue Dot Properties 271 (Pty) Ltd

Respondent

Gossow Harding Construction (Pty) Ltd

Respondent

Rank Sharp (Pty) Ltd

Respondent

The Body Corporate of the Thebe Hosken House Sectional Title Scheme

Respondent

The Registrar of Deeds

Respondent

The Surveyor General

Respondent

Xantha Properties 16 (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court (cape Town), First Instance

Legal Issues

  1. 1 Whether the developer was entitled to transfer or cede the real right of extension over the plant area to any person other than the owner of section 401.
  2. 2 Whether the developer's actions constituted 'changed circumstances' under section 25(13) of the Sectional Titles Act, justifying deviation from the registered plans.
  3. 3 Whether the appellants had standing to seek demolition of the wall constructed on common property.

Ratio Decidendi

The Supreme Court of Appeal held that the developer's right of extension over the plant area was reserved specifically for the benefit of section 401, as reflected in the registered plans and documents. The developer was not entitled to transfer or cede this right to any person other than the owner of section 401, nor to incorporate the plant area into another section. The court found that financial considerations alone did not constitute 'changed circumstances' justifying deviation from the terms of the reservation. The developer's attempt to transfer the right to the seventh respondent was not sanctioned by the Sectional Titles Act. The appellants, as owners of section 401, had standing...

Court Disposition

Appeal upheld with costs, including costs of two counsel where so employed. The order of the court a quo is set aside and substituted.

Orders

  • The first respondent is interdicted from exercising the right reserved to extend the Theba Hoskens Sectional Title Scheme and contained in the certificate issued to the first respondent on 28 November 2007 in terms of section 12(1)(e) of the Sectional Titles Act 95 of 1986 in any way other than by transferring or...
  • The first respondent is interdicted from transferring or ceding the said right reserved to any person other than to the owner of section 401 in the said Scheme.