By Sharné Zimri
Today the Constitutional Court (“the CC”) handed down a judgement which held that owners in a sectional title scheme have the legal standing to approach a court concerning matters that negatively impact their rights. They need not rely on the body corporate to do so. However, where proceedings are launched on behalf of body corporates, owners must comply with the requirements of the Sectional Titles Act 95 of 1986 (“the Act”).
The matter was brought before the CC on appeal against a judgement of the Supreme Court of Appeal (“SCA”) handed down on 15 March 2018 and the CC overturned that decision today.
Spilhaus Property Holdings (Pty) Ltd and 19 other owners in a sectional title scheme (“the owners”) sought an interdict against MTN Mobile Telephone Networks (Pty) Ltd (“MTN”), Alphen Farm Estate in Constantia (Pty) Ltd (“Alphen”) and Vodacom (Pty) Ltd (“Vodacom”) to remove a cellular network base receiver station erected on the common property of the sectional title scheme. The interdict was brought in the Western Cape Division of the High Court of South Africa (“WCHC”) on the basis that the erection of the infrastructure was unlawful in that the necessary approval was not obtained from the City of Cape Town and it violated national building and zoning regulations. The infrastructure was also visually intrusive and gave rise to health concerns for the owners.
Vodacom agreed to the removal but MTN and Alphen opposed the interdict. One of their grounds for opposition in the WCHC was that in terms of the Act only the body corporate of the sectional title scheme could act on behalf of the owners in relation to the common property and launch court proceedings on behalf of the sectional title. The owners therefore did not have locus standi to bring the interdict against them.
The WCHC stated that while the Act makes provision for the body corporate’s right to launch court proceedings on behalf of the owners, that did not preclude the owners from exercising their rights to institute the interdict. The court found that the owners had the requisite legal standing and the requirements for a final interdict were met. The interdict was granted on 3 November 2016.
MTN and Alphen took the judgement of the WCHC on appeal to the SCA. The SCA stated that: “the question raised by this appeal is whether the owners in a sectional title scheme had the requisite locus standi to seek interdictory relief in relation to the common property.” The SCA’s decision was based on section 41 of the Act. According to the SCA’s interpretation of the section, an owner must first call on the body corporate to institute proceedings on its behalf in relation to the common property. If the body corporate fails to do so, an application to court could be made for an order appointing a curator ad litem to act on behalf of the body corporate. After considering all the relevant factors, the court will decide whether to appoint a provisional curator ad litem who will conduct an investigation into the rights infringement and report to the court on the return day. The owners did not act in accordance with this section.
Accordingly, the Supreme Court of Appeal granted the appeal. It held that the individual owners do not have the legal standing to approach the court and seek relief in respect of the common property and therefore need to approach the court for the appointment of a curator ad litem to the body corporate. The matter was taken on appeal by the owners to the CC.
The CC, agreeing with the WCHC, overturned the SCA’s judgement. The CC focused on whether section 41 of the Act deprived the owners of legal standing to seek the interdict. The CC stated that it was obliged to interpret the provisions of section 41 of the Act, read together with sections 36(6) and 37(1), in a manner that promotes access to the courts in accordance with section 39(2) of the Constitution.
The CC found that section 41 allows an owner in a sectional title scheme to launch proceedings on behalf of a body corporate where his/her rights, and those of the body corporate’s, have been affected. In those circumstances, written notice must be given to the body corporate calling on it to institute proceedings within one month and if no such proceedings are instituted, the owner may apply for a court order appointing a curator ad litem for the body corporate to institute proceedings. This applies only to matters in which the body corporate has an interest and authority to institute proceedings (as set out in section 36(6) of the Act). The purpose is to avoid unmeritorious proceedings on behalf of the body corporate or unwanted cost orders against it.
However, the section did not preclude the owners from launching proceedings in their own name. This is particularly in respect of matters where the body corporate has no interest or authority to litigate. Section 41 does not apply to the interdict against MTN and Alphen as those proceedings were not launched by the owners on behalf of the body corporate, nor was it in respect of matters covered by the Act. The owners’ claim arose from the zoning regulations which is a separate claim.
The SCA’s interpretation and application of section 41 of the Act diverted from what is required by section 39(2) of the Constitution and does not promote the objects of the Bill of Rights.
On the basis that the owners had legal standing to bring the interdict in the WCHC, the CC reinstated the WCHC’s order against MTN and Alphen. MTN and Alphen must therefore remove the receiver station erected on the common property of the sectional title scheme.