Sunrise View Home Owners Association NPC and Another v Nepemalo (Pty) Ltd and Another (46279/2016) [2017] ZAGPPHC 351 (24 March 2017)

Sunrise View Home Owners Association NPC and Another v Nepemalo (Pty) Ltd and Another (46279/2016) [2017] ZAGPPHC 351 (24 March 2017)

The court held that section 36(6)(e) of the Sectional Titles Act applies to any claim by a body corporate against a developer, including claims for declaratory relief. The relief sought in the main application falls within the ambit of 'any claim' against the developer, and therefore, the body corporate may only...

Source-derived case information.

Citation
[2017] ZAGPPHC 351
Parties
Applicant: Sunrise View Home Owners Association NPC; Applicant: The Body Corporate Sunrise View II; Respondent: Nepemalo (Pty) Ltd; Respondent: The Registrar of Deeds: Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 March 2017
Case Number
46279/2016
Procedural Posture
Interlocutory Application / Application for Declaratory Relief Regarding Locus Standi of the Second Applicant
Outcome
Interlocutory application upheld; applicants not authorised to proceed without special resolution; costs awarded against applicants.
Judges
AC Basson
Legal Topics
Sectional Titles Act, Locus Standi, Special Resolution Requirement, Body Corporate Powers
Land and Property Civil Procedure Sectional Titles Act Locus Standi Special Resolution Requirement Body Corporate Powers

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Parties

Sunrise View Home Owners Association NPC

Applicant

The Body Corporate Sunrise View II

Applicant

Nepemalo (Pty) Ltd

Respondent

The Registrar of Deeds: Pretoria

Respondent

Procedural Posture

Interlocutory Application / Application for Declaratory Relief Regarding Locus Standi of the Second Applicant

Legal Issues

  1. 1 Whether the body corporate has locus standi to institute proceedings against the developer without a special resolution as required by section 36(6)(e) of the Sectional Titles Act.
  2. 2 Whether the relief sought in the main application constitutes a 'claim' against the developer within the meaning of section 36(6)(e).

Ratio Decidendi

The court held that section 36(6)(e) of the Sectional Titles Act applies to any claim by a body corporate against a developer, including claims for declaratory relief. The relief sought in the main application falls within the ambit of 'any claim' against the developer, and therefore, the body corporate may only proceed if authorised by special resolution. Since the second applicant had not obtained such authorisation, Vogel Inc. was not entitled to act on its behalf in the main application. The interlocutory application by the first respondent succeeded, and the applicants were ordered to pay the costs.

Court Disposition

Interlocutory application upheld; applicants not authorised to proceed without special resolution; costs awarded against applicants.

Orders

  • Vogel Inc. is not authorised to bring the main application on behalf of the second applicant as the second applicant has not complied with section 36(6)(e) of the Sectional Titles Act 95 of 1986 (as amended by section 2(7)(e) of the Sectional Titles Schemes Management Act 8 of 2011).
  • Vogel Inc. may no longer act for the second applicant until proper authorisation is obtained in terms of section 36(6)(e).