Tembo NO and Others v Body Corporate of Building known as Vallen Lodge (AR77/2020) [2021] ZAKZPHC 5 (21 January 2021)

Tembo NO and Others v Body Corporate of Building known as Vallen Lodge (AR77/2020) [2021] ZAKZPHC 5 (21 January 2021)

The court held that the respondent's right to claim reimbursement for repair costs only arose after certainty was obtained regarding the necessity of repairs, which occurred in February 2014 following expert advice and a court order for access. The respondent issued the required 30-day notice in March 2014, and the appellants failed to comply, resulting in the respondent incurring repair costs between May and September 2014. The summons was served in 2016, well within the three-year prescription period. The court rejected the appellants' argument that prescription began running in July 2012, finding that the debt only arose when the respondent intervened and incurred costs. The court...

Citation
[2021] ZAKZPHC 5
Parties
Appellant: Gwendolyn Buyisiwe Mlarisi Tembo N.O.; Appellant: Shumani Tembo N.O.; Appellant: Vionne Kharota Tembo N.O.; Respondent: Body Corporate of the Building known as Vallen Lodge
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
21 January 2021
Case Number
AR77/2020
Procedural Posture
Civil Appeal / Appeal From Magistrates’ Court; Special Plea of Prescription Decided First
Outcome
Appeal dismissed with costs.
Judges
Olsen, Balton
Legal Topics
Sectional Title Schemes Management Act, Prescription, Special Plea, Body Corporate Powers
Land and Property Civil Procedure Sectional Title Schemes Management Act Prescription Special Plea Body Corporate Powers

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Parties

Gwendolyn Buyisiwe Mlarisi Tembo N.O.

Appellant

Shumani Tembo N.O.

Appellant

Vionne Kharota Tembo N.O.

Appellant

Body Corporate of the Building known as Vallen Lodge

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates’ Court; Special Plea of Prescription Decided First

Legal Issues

  1. 1 Whether the respondent's claim against the appellants for reimbursement of repair costs was prescribed under the Prescription Act.
  2. 2 When did the respondent's right to claim reimbursement arise for purposes of prescription.
  3. 3 Whether the respondent delayed the running of prescription by its conduct.

Ratio Decidendi

The court held that the respondent's right to claim reimbursement for repair costs only arose after certainty was obtained regarding the necessity of repairs, which occurred in February 2014 following expert advice and a court order for access. The respondent issued the required 30-day notice in March 2014, and the appellants failed to comply, resulting in the respondent incurring repair costs between May and September 2014. The summons was served in 2016, well within the three-year prescription period. The court rejected the appellants' argument that prescription began running in July 2012, finding that the debt only arose when the respondent intervened and incurred costs. The court...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.