IN THE HIGH COURT OF SOUTH AFRICA, 
KWAZULU-NATAL LOCAL DIVISION, DURBAN
		CASE NO: 10088/2013  

In the matter between:
MARGUERITE ANNE CATHERINE DE LA HARPE 
			          Applicant 
and

BODY CORPORATE OF BELLA TOSCANA 
		          	      Respondent
__________________________________________________________________

JUDGMENT
           Date of judgment delivered:     28	  October 2014	
___________________________________________________________________

CHETTY, J:
[1]	It is said that “good fences make good neighbours” suggesting that walls or picturesque white picket fences promote good neighbourliness.  Not much attention is given to who is responsible for the maintenance of the fence or wall, until this becomes the bone of contention.  When that happens, good neighbourliness is discarded and attention is focused on who is financially liable for the upkeep and the maintenance of the wall.  Where one shares a common boundary wall or fence with a neighbour, it is usually the case that each party will maintain their respective side of the fence.  Where however, as in the present case, the wall is erected within the confines of a sectional title development, the issue as to who is responsible for its maintenance, becomes somewhat obscure.  

[2]	The present application is borne out of a dispute between a sectional title owner (the applicant) and the body corporate of the sectional title development (the respondent) as to who is responsible for the maintenance of an ailing wall which has been built to enclose the applicant’s garden area, in respect of which she enjoys the right of an exclusive use.  The wall also drew the attention of the local authority which issued a compliance notice to the respondent requesting it to urgently repair the wall. The applicant contends that the wall forms part of the common property and as such should be repaired and maintained at the expense of the body corporate.  The latter adopts the view that the wall forms part of the applicant’s exclusive use area and as such, she bears the responsibility for its maintenance and repair.  The applicant framed her relief seeking the appointment of an administrator for a limited period, to oversee the repair of the wall in question, contending that such an appointment was justified as the respondent has breached its duties in terms of the Sectional Titles Act No. 95 of 1986.

[3]	It is against this background that the applicant launched an urgent application on 16 September 2013 to appoint an administrator in terms of section 46 of the Sectional Titles Act for a period of six (6) months, within which the administrator would be tasked to investigate the state and condition of the “perimeter wall” situated on the common property, and to ascertain what repairs or alterations, including reconstruction, would be required in order to render the wall safe and compliant with the National Building Regulations and bylaws. Once an administrator was appointed, the applicant contended that she would be able to raise a special levy to defray the costs of the repairs.  The applicant further sought that the cost of the application be borne by the respondent, and that she be excluded from participating in the sharing of any portion of those costs, notwithstanding that she is a member in good standing of the body corporate. The urgent application was opposed and the court struck the matter from the role for lack of urgency, with the costs in relation thereto to be borne by the applicant. 

[4]	In due course the respondent filed its papers to which the applicant replied, and the matter was set down for determination of the issues on the papers. The respondent filed a counter application in which it sought an order that the applicant demolish the wall on her property, and to rebuild it to the satisfaction of the building inspector. The respondent further sought that the cost of the demolishing and construction of the wall should be borne by the applicant, and that she be responsible for the cost of the counter application.  Both applications were consolidated and heard before me on the basis that both parties were of the opinion that this was not a matter that should be referred to oral evidence.

[5]	At the outset, it is perhaps necessary to clarify that whilst the applicant’s notice of motion and founding affidavit refers to a “perimeter wall” situated on the common property of the respondent, the wall which is the subject matter of the present litigation, is not a perimeter wall. The respondent correctly points out that the perimeter or boundary of the scheme is approximately 25 m away from the wall which surrounds the applicant’s exclusive use area. The perimeter of the scheme is enclosed by means of a wire fence. This is clearly evident if one has regard to the aerial photograph of the sectional title units forming the scheme, and annexed to the applicant’s answering affidavit as “MD4”, as well as the photographs showing the outside of the walls and the thick vegetation between it and the wire perimeter fence.  For the purpose of this judgment, I shall accordingly refer to the wall which is the subject matter of this dispute as the ‘garden’ wall.

[6]	In March 2004 the applicant purchased her unit in the respondent’s scheme, located at 10 Bath Road, Southbroom, KwaZulu-Natal.  According to the applicant, in 2008 she noticed that the wall, which surrounds her garden, had started to crack. The applicant’s founding affidavit contains a number of photographs which shows the wall in a state of serious disrepair, with significant cracks, at one part measuring approximately 9 cm. It is not disputed by the respondent that the wall is clearly in need of urgent repair. According to the applicant, she had been engaged in discussions with the trustees of the respondent from 2008 in an attempt to have the wall repaired. She wrote to the trustees of the body corporate on 12 October 2010 in which she drew to their attention the dangers posed by the cracked wall and attributed the crack to the differences in the ground levels between her garden and the outside of the wall, which is built on a steep precipice. As a consequence of the serious cracks emerging, the applicant contends that the aesthetic appeal of her garden has been clearly diminished, as well as the cracks distracting any potential buyers from putting in any offers to buy her unit. The applicant further informed the body corporate that if the matter was not resolved, she would have no alternative but to seek legal recourse.
[7]	In November 2010 those responsible for managing the affairs of the body corporate wrote to the owner of sectional unit seven regarding a claim to the insurers of the body corporate in relation to damage to a wall, similar to that in the adjacent unit owned by the applicant.  In email correspondence it is recorded that a claim to the insurers was put on hold after it emerged that certain structures (including the walls around the units) may have been built without the necessary planning approval.  It would appear that the trustees took this decision to “protect the body corporate from any action by the insurance company should it come to light that a claim was submitted on an illegally built structure”.  These concerns of the respondent are born out in a letter dated 31 October 2012 in which the portfolio manager responsible for the affairs of the body corporate acknowledged that the issue of the repair to the wall has been an ongoing matter, but that the fixing of the wall has been held up by the failure of the initial developer to properly submit various documentation to the local authority in compliance (it would seem) with the National Building Regulations and Building Standards Act, as well as the Sectional Titles Act. 

[8]	According to the portfolio manager, several units did not have occupation certificates issued, as well as not having been registered in the Sectional Titles register. While these are problems that affect the broader sectional title community of Bella Toscana, in the opinion of the applicant the prioritisation of the range of problems facing the trustees is no answer to her claim that the body corporate or its insurers are liable for the cost of repair to the wall.  Accordingly she approached her attorneys of record who directed correspondence to the respondent in December 2012 in which they clearly set out that the wall in question is built on common property, and that the responsibility for the repair and insurance of such structure falls on the body corporate. At the same time the applicant’s attorney forwarded the respondent’s with a copy of an engineer’s report which she procured, indicating that the wall has failed structurally, and was not constructed in accordance with the requirements of the National Building regulations, and that the wall be demolished as soon as possible to avoid possible danger of collapse. The engineers suggested that a new wall be constructed with peers every 3.2m, or as a dry stack retaining wall, with a metal palisade fence for security.  

[9]	The initial response from the respondent’s attorney in February 2013 was that remedial work would be undertaken to the wall at a “number of locations”, suggesting that the applicant was not the only person who was affected by a cracked wall.  More importantly, the respondent’s attorney intimated that once quotations had been received and accepted, the body corporate would raise a special levy to fund the remedial work. Despite the assurance that the body corporate would address the concerns of the applicant, it failed to take any remedial action.

[10]	The applicant’s case is that the wall forms part of the common property and therefore falls to be repaired and maintained by the respondent in terms of section 37 (1)(f) of the Sectional Titles Act, which provides that:
“a body corporate referred to in section 36 shall perform the functions entrusted to it by or under this Act or the rules, and such functions shall include— 
…………………………..
(f)	to insure the building or buildings and keep it or them insured to the replacement value thereof against fire and such other risks as may be prescribed.”
[11]	In light of the respondent failing to discharge its functions in terms of the Sectional Titles Act, and acting in breach of the Prescribed Management Rule 70 which requires the body corporate to remedy an owner’s failure to repair or maintain his section in a good state after being called upon to do so, the applicant contends that the body corporate’s failure to repair the wall is causing significant prejudice to her, as well as to all other members of the body corporate.   In light of the alleged breach of duty by the Trustees of the respondent, the applicant contends that such breach provides the basis for this Court to intervene, and to appoint an administrator in terms of section 46 of the Sectional Titles Act.     
[12]	Following on the argument that the wall in question is constructed on common property and falls to be maintained and repaired by the respondent, the applicant submits that the wall ought to form part of the structures for which the respondent is obliged to insure against damage.  In the alternative, the applicant contends that the respondent is responsible for the repairs, and empowered to fund the repairs through the raising of a special levy.  In the event of the latter option being pursued, the applicant accepts that she too would be obliged to contribute to the overall costs, each owner’s contribution being based on their respective participation quota.
[13]	Mr Snyman, who appeared on behalf of the respondent, confined his argument essentially to two issues, firstly whether the wall in question constitutes common property or whether it is part of the exclusive use area, registered in the title deed, in the name of the applicant. The second enquiry is whether the applicant has satisfied the onus of persuading the Court to exercise its discretion in favour of the appointment of an administrator under the Sectional Titles Act. In relation to the first enquiry, counsel drew to my attention that the deed search in respect of the unit belonging to the applicant reflects that an exclusive use area No. 4 has been registered in favour of the applicant. That establishes the applicant’s lawful entitlement to the exclusive use of a certain area of the common property. It was further contended that in order to determine the full extent of the applicant’s exclusive use area, regard must be had to the provisions of the National Building Regulations, which require a land surveyor to mark the extent of each section accurately by inserting pegs at the appropriate points. The respondent attached to its replying papers the diagrams drawn up by the land surveyor, reflecting the extent of the applicant’s unit and the exclusive rights and its position in relation to the other units.  This line of argument loses sight of the issue for determination before me, which has nothing to do with the extent of the applicant’s unit.  Instead, it hinges on where precisely the wall surrounding the exclusive use area has been built.  As I understood counsel for the respondent, he submitted that the onus was on the applicant to produce a surveyed diagram showing the precise location of the garden wall, from which it can be determined without resort of extrinsic evidence, whether the wall has been constructed with the exclusive use area or outside of it, in which event it would form part of the common property. 
[15]	According to the amended sectional title plan, the extent of the garden is delineated with a dotted line, which according to the legend of the plan, denotes “not physically defined”. It is apparent from the aerial photographs which form part of the applicant’s replying affidavit that all of the units which constitute the respondent’s scheme, are bounded by walls around the respective gardens.  It is correct that the applicant carries the burden of proof in such matters and is obliged to place such evidence before the Court in support of the relief sought.  In motion proceedings the court has to find on the undisputed facts whether the applicant had made out a case. Where the exact position of the wall is placed in dispute by the respondent, the court dealing with the matter must do so in terms of the rule set out in Plascon-Evans v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) in that where a dispute of fact arises on the affidavits, a final order can only be granted if the facts averred in the applicant’s affidavits which have been admitted by the respondent; together with the facts alleged by the respondent, justify an order. See also National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 290.  Accordingly it was contended on behalf of the respondent that the application should be dismissed on this basis alone.  While there is some merit in this argument, I am not inclined to dismiss the application for this reason alone as to do so, in the context of this particular set of facts, would be to elevate form over substance.
[16]	The next leg of the respondent’s opposition centred on the contention that the sectional title development, Bella Toscana, was developed as a “real right development”, as referred to in sections 2 and 25(1) of the Sectional Titles Act. The original developer of the respondent’s scheme was a company called BCB East Griqualand Builders CC, which has since been placed into liquidation. The original developers constructed the first unit as a show house and laid out the areas where future units were to be constructed. According to the respondent, the developer then proceeded to sell off various pieces of land to buyers, while simultaneously concluding building contracts with each of them.  On this basis, the respondent argued that the original developer then became the building contractor and the original purchasers became, in their own individual capacity, developers of their own sections. As such, the argument continued, the applicant as the developer of her section, proceeded to erect her unit and the wall which surrounds her exclusive use area.  
[17]	The applicant on the other hand denies any suggestion that she is a “developer” of her unit and consequently was responsible for the construction of the disputed wall.  She does not deny that she purchased a portion of a real right reserved in terms of section 25 of the Act, being a right to extend the respondent scheme by one additional unit.  The applicant admits that she entered into an agreement with BCB East Griqualand CC at a cost of R790 000 to erect her unit, as contemplated in the sectional title plans.  Mention is made in the contract of the requirement to build a wall around her exclusive use area.  On that basis the applicant contends that she cannot be considered as the person responsible for the construction of the wall, and indeed the respondent was unable to deny her assertion that the entire complex was built by BCB as a developer of the scheme.  Her submission is bolstered by reference to the minutes of a meeting of the body corporate on 14 June 2005 which states the following in relation to the wall:
“Boundary wall outside must still be painted same colour as inside wall by developer.
Developer confirmed that a boundary wall will encircle all units including units still to be built.”

[18]	Accordingly I am not persuaded by the arguments on behalf of the respondent that the applicant was a “developer” of her unit and/ or of the disputed garden wall.  On the contrary, the documentary evidence before me suggests a contrary interpretation.  In the result, this leg of the respondent’s argument must fail. 

[19]	Prior to dealing with the issue of whether the wall has been built on common property or whether it falls within an exclusive use area, I wish to deal with the issue of the specific relief sought by the applicant.  The applicant framed its claim for relief in the form of an order directing that one Gavin Janssen’s be appointed as administrator in terms of section 46 of the Sectional Titles Act and that he act as administrator for the respondent for a period of six (6) months within which he would be authorised to investigate the state of the applicant’s garden wall, procure quotations and ensure that the wall was repaired or altered in accordance with accepted building regulations. She contends that an administrator would be able to immediately arrange for steps to be taken to safeguard the area of the dilapidated wall and would be in a position to obtain the necessary engineering and geotechnical studies to determine the exact requirements for the stabilising of the wall, and for its construction in accordance with the National Building Regulations. In addition, the applicant contends that an administrator would be able to obtain the necessary quotes for the construction of the wall, oversee the workmanship; attend to the raising of a special levy for the construction and related work and to ensure that the wall and similar structures are brought within the insurance portfolio of the respondent.  

[20]	The applicant proposed that a Mr Gavin Janssen’s be appointed as an administrator, by virtue of his experience in such matters.  Finally she contends that the body corporate be held liable for the cost of his services.  The applicant in her founding affidavit contends that the decision to embark on the application to appoint an administrator was because it would “not be practical [for me] to seek an order compelling the trustees to repair/replace the wall, simply because of the lack of particularity therein would make it difficult to determine if the respondent was complying with the order, in the event of a dispute arising”.  

[21]	The above reasoning, in my view, is unsound.  The contention that the “lack of particularity” would make it difficult to enforce an order directing the respondent to repair the wall is, in my view, without foundation.  If an order were to be granted by this Court directing the respondent to repair the wall, all that would be necessary to satisfy the applicant that the order was complied with, was the issuance of a certificate of completion in terms of the National Building Regulations and Building Standards Act, No. 103 0f 1977 by the local authority.  Instead, the applicant chose (or was advised) to bring the application as one for the appointment of an administrator under section 46 of the Act, alleging that the respondents have acted in breach of their obligation by not repairing the wall within a reasonable time, thereby exposing the wall to a danger of collapse.  

[22]	The appointment of an administrator was opposed by the respondent contending that if he were to be appointed, he would discover in any event that the applicant was the “owner of the wall” and that she was obliged to repair it.  The Court has discretion in terms of section 46 of the Sectional Titles Act whether to appoint an administrator. The section reads as follows:
“Appointment of Administrators.—
“(1)  A body corporate, a local authority, a judgment creditor of the body corporate for an amount of not less than R500, or any owner or any person having a registered real right in or over a unit, may apply to the Court for the appointment of an administrator.
(2)  (a)  The Court may in its discretion appoint an administrator for an indefinite or a fixed period on such terms and conditions as to remuneration as it deems fit.
(b)  The remuneration and expenses of the administrator shall be administrative expenses within the meaning of section 37 (1) (a).
(3)  The administrator shall, to the exclusion of the body corporate, have the powers and duties of the body corporate or such of those powers and duties as the Court may direct.
(4)  The Court may in its discretion and on the application of any person or body referred to in subsection (1) remove from office or replace the administrator or, on the application of the administrator, replace the administrator.
(5) The Court may, with regard to any application under this section, make such order for the payment of costs as it deems fit.”

[24]	In Bouramis and another v Body Corporate of the Towers and others 1995 (4) SA 106 (D) at 109G-I, the Court laid down the following test in determining when an administrator should be appointed:
“It seems to me that the Court should not, where a duly constituted board of trustees is in existence, grant an order for the appointment of an administrator unless the applicant establishes on a balance of probabilities, firstly, that there have been breaches of the duties set out in s 39 read with ss 37, 38, and 40, and, secondly, that it is likely that the owners of units shall suffer substantial prejudice if an administrator were not to be appointed by the Court. Such breaches could take the form of a failure to perform duties or the improper performance of duties.”
	(My underlining)

[25]	Following on Bouramis, the Court in Dempa Investments CC v Body Corporate, Los Angeles SA 2010 (2) SA 69 (W) the Court, at para 21 applied the following factors in deciding whether there existed proper grounds for the appointment of an administrator:
“1.	The court has a discretion to appoint an administrator, which must be exercised judicially, having regard to the circumstances of the particular case before it. 
2.	Special circumstances or good cause must be shown.  
3.	It is not possible to define what would constitute special circumstances or good cause, but as a minimum there should be: 
3.1	some neglect, wilfulness or dishonesty on the part of the trustees, or an event beyond their control; and 
3.2	a likelihood that the owners of units will suffer substantial prejudice if an administrator is not appointed.
4	Acts or omissions which would qualify would include maladministration, breaches of statutory duties, dishonesty, inefficiency and managerial atrophy or deadlock. The list is not exhaustive. 
5	The problem must be such that an administrator could be expected to add value where the trustees could not. For instance, mere inexperience on the part of the trustees may not be sufficient, for they could appoint an experienced managing agent. So too it may be insufficient that the body corporate is experiencing serious financial difficulties, for the trustees and managing agent may be as capable an administrator to deal with the problem. If, however, inexperience is coupled with wilfulness, or the financial difficulties have been caused by maladministration, dishonesty or the like, an administrator could be expected to achieve results which the trustees would not.  
6	A balance should be struck between, on the one hand, being slow to interfere in the management of the scheme of the body corporate’s chosen representatives and, on the other hand, not hesitating to come to the assistance of owners of units who may suffer substantial prejudice by the actions or omissions of trustees.  
7	The applicant bears the onus to persuade the court that this is a suitable case for the exercise of the discretion.”
(my underlining)

[26]	It is clear from the authorities cited above that a mere disagreement or stand-off between the body corporate and an owner or group of owners is not sufficient to trigger the decision to appoint an administrator.  The threshold is much higher and the onus is on the applicant to show that he or she will suffer “substantial prejudice” should an administrator not be appointed.  Wallis J in  Herald Investments  Share Block (Pty) Ltd and others v Meer and others; Meer v Body Corporate of Belmont Arcade and another 2 All SA 103 [KZN] correctly described the step to appoint an administrator as a “drastic power” noting at para [46] that: 
“….it removes control of the affairs of the body corporate from those in whom it should be vested, namely the trustees elected by the members of the body corporate. In my view, therefore, it would normally only be exercised when those persons are not in a position properly to perform the functions assigned to them under the Act, or when the body corporate has not elected trustees, or where for some other reason the affairs of the body corporate are not being, or are not capable of being, administered in the fashion that the Act contemplates. …. But it must be borne in mind that the purpose of appointing an administrator is remedial, the idea being that the conduct of the affairs of the body corporate should after administration be restored to the members of the body corporate.”

[27]	Similarly in Graham v Park Mews Body Corporate and another [2012] 1 All SA 167 (WCC), Henny J noted at para [42] that:
 “The party seeking the appointment of an administrator has to convince the court that such appointment would not only be to his or her exclusive benefit, but that it would also be to the benefit of all the owners or other interested parties as contemplated in section 46(1) as a whole.”

[28]	See too unreported judgment in Levy v Controlling Body of Christina Court  (WPA 1994–09–23 case no 94/18918) as authority for the view that a court will only exercise its jurisdiction to appoint an administrator in exceptional circumstances such as serious financial difficulties encountered by the body corporate and flagrant maladministration through managerial atrophy or deadlock, dishonesty or inefficiency.  See LAWSA Second Edition (Vol 24, paras 287–482); Grundler NO v Rambadursing [2011] 3 All SA 556 (KZD).

[29]	I now turn to the next leg of the enquiry, of whether the wall is situated in the common property or within the extent of the applicant’s exclusive use area.  The crux of the respondent’s argument, as set out at the outset, is that as the wall surrounds the applicant’s exclusive use area (being the garden), the latter registered as EUA4 on the Sectional Title Plans. If the wall forms part of the applicant’s exclusive use area, she is liable for its repair and maintenance in accordance with section 37(1)(b) of the Act. The respondent relies on an annexure to the amended Sectional Title Plan, which denotes the areas outside of the exclusive use area of the applicant, as common property. The applicant, as I understood, has never contended otherwise and has always regarded the dense vegetation beyond the garden wall as forming part of the common property.  This confusion possibly arises from the terminology used in which the garden wall has been referred to as a “perimeter wall”.

[30]	I am in agreement with counsel for the respondent that the legislative intent behind section 37(1)(b) was to ensure that owners in a sectional title complex, who do not have access to exclusive use areas, should not be saddled with the costs of maintenance and repair of areas of the common property in respect of which they cannot use or enjoy.  Accordingly the responsibility for repairing and maintaining an exclusive use area falls on the owner who benefits exclusively from such use.  This view was endorsed by Wallis J (as he then was) in Herald Investments at para 23 that: 
“Any other conclusion would result in the situation where some owners of sections enjoying exclusive use rights are liable to contribute to the cost of maintaining the areas in respect of which they enjoy those rights, whilst others are not, depending solely on the source of those rights. That was not what was intended in enacting the proviso to s 37(1)(b). It is plain that the intention was to burden those, who enjoyed such rights, with the costs of maintaining the parts of the common property burdened by such rights. That is also an equitable arrangement in distributing the cost of maintaining the property among the owners in a development. Owners are liable to maintain their own sections and, where they enjoy exclusive use rights in respect of part of the common property, it is appropriate that they should bear the same liability in respect of those areas. It would be quite unfair to expect those, who are unable to use part of the common property, to pay costs occasioned by their co-owners' enjoyment of that part.”  

[31]	I should point out that I did not understand the applicant’s case to be that she refuses to pay or contribute towards the costs of the repair of the wall.  Her contention is that the wall should be treated as part of the common property.  As such, where repairs of an extra ordinary nature are required to be carried out, it would entail that the body corporate would fund such repairs by the imposing of a special levy to which all owners, including the applicant, would be liable to contribute.  In the present matter it cannot be said that the applicant is intent on securing a preference for herself at the expense of the remaining members of the body corporate.  In fact, all of the units which form part of the scheme have gardens which are enclosed by similar walls.  In terms of the documentary evidence placed before me, it would appear that structural defects have manifested themselves in other parts of the wall that are adjacent to other sectional units other than that of the applicant.  In that case, all owners would also be liable to contribute towards the costs of repairing the wall, if this decision were to be taken.  

[32]	The answer as to whether the wall forms part of the common property or falls within the applicant’s exclusive use area must be determined having regard to how the Sectional Titles Act defines each of these entities. A “section” consists of the space enclosed by the boundary walls, ceilings and floors, up to the median line thereof.  It may also include non-contiguous portions of the building such as a garage or storeroom.   

[33]	According to respected author CG van der Merwe, Sectional Titles, Share Blocks and Timesharing, Volume 1, p.3-8, in terms of the guidelines issued by the Chief Surveyor-General, the limits of a section must always be shown by solid lines on the floor plan.  A perusal of the plans of the applicant’s sectional plans indicate that the actual structure comprising the building is shown by solid line, the wall surrounding the exclusive use area is reflected with a broken or dotted line.  Van der Merwe, (supra) at para 262, notes that exclusive use areas:
“must be uniquely numbered, delineated by means of distinctive broken lines and the total size expressed to the nearest square meter.  The common boundary between an exclusive use area and a section or common property is, in the case of physical features, the median line of the dividing wall, ceiling, fence or other similar features, unless the boundaries have been described in a different manner on the sectional plan.”

[34]	In terms of section 1 of the Sectional Titles Act, “common property” is defined as:
“(a) 	the land included in the scheme; 
(b) 	such parts of the building or buildings as are not included in a section; and 
(c) 	land referred to in section 26.”

[35]	It was contended on behalf of the applicant that irrespective of whether the wall traverses her exclusive use area or a ‘developer’ of the scheme, the wall forms part of the common property of the scheme and consequently falls to be repaired and maintained by the respondent in terms of the Act.  This submission finds support in the following extract from Van der Merwe (supra) at p.3-11 where he states the following:
“Whatever land is included in a sectional title scheme becomes common property. Thus the soil beneath the building, the land for the yet undeveloped parts of the scheme and the air space around and above the building are part of the common property. Common property also includes all other improvements on the land apart from sectionalised buildings such as courtyards, plants, gardens, lawns, parking areas, drying yards and special recreational facilities such as swimming pools, tennis courts and children’s playgrounds. 

The fact that land is necessarily part of the common property has a few obvious consequences. In the first place, the owner of a section on the ground floor of a sectional title building does not acquire any special interest in the soil beneath his section. He cannot for example excavate the ground beneath the building to provide himself with a new wine cellar. A further consequence is that portions of the land, unlike portions of a building, can never form part of a particular section. It is therefore not possible to incorporate portions of land like a garden area or an open parking space in a section. Normally such portions will have to be administered as part of the common property. 
(my underlining).

[36]	“Exclusive use areas” are defined in the Act as a part or parts of the common property for the exclusive use by the owner or owners of one or more sections. Although exclusive use areas are technically part of the common property, its use is exclusively reserved for the owner of the section to which it is attached. The other owners have no rights to it as they have in respect of the rest of the common property. It is not in dispute that the exclusive use area attaching to the applicant’s unit has been registered on her title deed and described formally as EUA4 thereon.  Accordingly, an exclusive use area, so registered, may be transferred from one sectional owner to another owner in terms of section 27(4) of the Act.  

[37]	The basis for the respondent’s contention that the wall in question cannot form part of the common property in the scheme is that the wall undoubtedly benefits the applicant more than it does the remaining sectional owners.  The wall encloses the applicant’s garden area from view of adjacent sectional owners and contributes to a greater sense of privacy.  The remaining owners, represented by the respondent, are no doubt of the opinion that as the wall serves the interests of the applicant alone, she should be liable for the costs of its repair and maintenance.  This notion of part of the common property being more beneficial to one owner above others has been referred to by  Van Der Merwe (supra) at para 326 on p.3-14 as “limited common property” as opposed to “general common property”.  This concept has found application in foreign jurisdictions, but not in South Africa.  

[38]	The provisions of section 37(1)(a) and (b) of the Act are relevant to the present dispute. The first two subparagraphs read as follows:

“(1) A body corporate referred to in section 36 shall perform the functions entrusted to it by or under this Act or the rules and such functions shall include –

(a) to establish for administrative expenses a fund sufficient in the opinion of the body corporate for the repair, upkeep, control, management and administration of the common property (including reasonable provision for future maintenance and repairs), for the payment of rates and taxes and other local authority charges for the supply of electric current, gas, water, fuel and sanitary and other services to the building or buildings and land, and any premiums of insurance, and for the discharge of any duty or fulfilment of any other obligation of the body corporate;
(b) to require the owners, whenever necessary, to make contributions to such fund for the purposes of satisfying any claims against the body corporate: Provided that the body corporate shall require the owner or owners of a section or sections entitled to the right to the exclusive use of a part or parts of the common property, whether or not such right is registered or conferred by rules made under the Sectional Titles Act, 1971 (Act No 66 of 1971), to make such additional contribution to the fund as is estimated necessary to defray the costs of rates and taxes, insurance and maintenance in respect of any such part or parts, including the provision of electricity and water, unless in terms of the rules the owners concerned are responsible for such costs.”
(my underlining)

[39]	The proviso contained in section 37(1)(b) was considered in Herald Investments (supra) which related to a dispute between the owner of the first three floors of a building which comprised commercial and parking levels, against the owners of the remaining 15 floors which are all residential flats as part of a share-block scheme.  The building had four lifts, one of which was a service lift, accessible to all, whereas the remaining 3 lifts were programmed so as to serve only the residential portion of the building.  When a decision had to be taken regarding the costs of repairs to the 3 lifts, Herald Investments challenged the decision that imposed a special levy on all owners.  They contended that as the owners of the residential sections have exclusive use of the lifts, they are liable for the full costs of maintaining them.  Notwithstanding the 3 residential lifts being part of the common property, Herald Investments contended the residential owners had exclusive use of the lifts and therefore the body corporate was obliged to recover the costs of maintaining the lifts only from the owners of the residential sections.  Wallis J arrived at the decision that the costs of repair should be borne by all owners (primarily because of the manner in which the exclusive rights areas had been acquired).  His conclusion that the costs of the repair to the lift were “recoverable from all owners of sections in Belmont Arcade, in proportion to their participation quotas, and are not recoverable exclusively from owners of residential sections in terms of the proviso to s 37(1)(b) of the Sectional Titles Act 95 of 1986” was largely underpinned by an analysis of the provision in section 37(i)(b) of the Act which he found “only entitles the body corporate to recover the costs of maintaining an area of the common property, from an owner who enjoys the exclusive use of that area, where the right of exclusive use is derived from one of the sources recognised under the Act”. See Herald Investments (supra) para 29:

[40]	Van der Merwe (supra) raises the issue as to who is liable for maintenance of exclusive use areas, and deals with the application of section 37(1)(b) of the Act in respect of those parts of the common property which are used more frequently by one, or a few owners.  The learned author notes at para 11-29:
“When large exclusive use areas such as large garden areas, access roads and TV satellite services are used by a group of owners, the prima facie method of sharing the maintenance and other costs of these areas would be according to their respective participation quotas because they are all paying the cost attributable to a portion of the common property. But these areas are not used by all the owners, and section 37(1)(b) makes the cost attributable to exclusive use areas, the responsibility of the holders of the exclusive use areas. Consequently, the contribution should rather be shared equally amongst the owners who share the right of exclusive use.
Where a boundary wall of a scheme is simultaneously the boundary of an exclusive use area, and is depicted as such on the sectional plan or the plan to scale, the cost of maintaining the boundary wall would be the responsibility of the body corporate. However, since in such a case the right of the holder of an exclusive use right would probably be held to extend to the median line of the boundary wall of the scheme, the holder of the exclusive use area would be liable to pay an additional contribution in respect of the portion of the wall over which he has a right of exclusive use. Where structural defects exist in the wall, it might be considered unfair to burden the adjoining holders of exclusive use rights with such costs. Therefore it is sensible to adopt a special management rule to correct this unfair situation by providing that the body corporate would be responsible for maintenance of the boundary walls of a scheme.”

[41]	The dilemma as to who is liable for the costs of repair to structural defects in an exclusive use area was considered in Body Corporate of the Solidatus Scheme No SS 23/90 v De Waal and others [1997] 3 All SA 91 (T) where the sectional title scheme comprised of 60 units as well as certain exclusive use areas, consisting of parking bays and balconies. After the building was completed, problems were discovered following rainwater penetration through the roofs and walls.  Investigations revealed that the concrete slab underneath each of the 8 balconies was in danger of collapse, and that certain remedial work was necessary. A meeting of all owners was held and the trustees of the body corporate were authorised to accept a quotation by a contractor to remedy the defects.  In order to pay for the repairs, it was decided that a single special levy would be imposed on all owners for the purpose of financing the expenditure. In addition, the trustees were authorised to levy a special contribution from the holders of rights to exclusive use areas in respect of the waterproofing and repair of those areas. Some of the exclusive use owners refused to pay the special levy contending that all the owners had to share the burden of expenses incurred in rectifying bad workmanship and faulty construction.  They contended that this exceeded their obligation to keep their exclusive use areas neat and tidy, and extended this obligation to construction. The body corporate applied for a declaratory order; arguing that the concept “maintenance” in the proviso to section 37(1)(b) included repairs and remedial work to preserve the structure.  

[42]	The factual situation in Solidatus bears similarity to the matter before me, with the exception that structural defect affected 8 out of 60 owners, whereas in this instance, it relates to a defect which affects one owner alone.  I am aware that other owners have encountered similar problems with their walls, but I have not been informed how these issues have been resolved, if at all, and how the costs of the repairs were dealt with.   In answering the question of whether “maintenance” in the proviso to section 37(1)(b) includes the remedial work which the body corporate authorised, the Court at 97b-c adopted the approach of enquiring into the:	
 “…purpose and position of the exclusive use owners, and to ask the question: what was the mischief that the legislature tried to combat in enacting the provision, or put differently, what is the object that the legislature had in mind with the provision.”

[43]	The Court concluded that the rights to exclusive use areas were so closely akin to ownership as to be virtually indistinguishable and accordingly found that the legislature wanted to place the burden for the upkeep where the benefit lay, namely on the owner of the section to which those rights were attached.  The building defect in the Solidatus Scheme emanated from bad workmanship by the developers, who had since gone into liquidation.  The Court at 99f-g had the following to say in this regard: 
“The fact that the CSIR report indicates that the prime culprits might have been the builders, or architect, for slovenly workmanship and/or poor design, does not in my view detract from the eventual responsibility of the section owner for defects and their correction.”

[44]	The applicant before me has presented evidence, which is not contested, that the wall has “failed structurally” and has not been built in accordance with the National Building Regulations.  I have already dismissed the respondent’s contention that the applicant was responsible for the construction of the wall in her capacity as a developer. It is also apparent from a letter addressed to the applicant by the portfolio manager attending to matters on behalf of the body corporate, that the developer is now defunct and left behind a “quagmire”.   Notwithstanding the origins of the defective wall, on the basis of the above authorities, the applicant is solely responsible for the costs of the repair and maintenance of her wall surrounding her exclusive use area in as much as she is the only person deriving a benefit from it.  On that basis, it would be unfair to expect of the remaining occupants to contribute in the form of a special levy to the repair and maintenance of a structure in respect of which they have no access to, nor from which they derive any benefit.  

[45]	For these reasons, I am of the view that the applicant’s claim on the main application must fail. The applicant proceeded to bring an application for the appointment of an administrator in circumstances where such an appointment was wholly inappropriate.  Moreover, the respondent has been successful in showing that the applicant is liable for the costs of repair and maintenance to the wall as it serves her exclusive use, even though it may have been erected by the developer.  The wall is in danger of collapse and requires immediate attention, to the satisfaction of the local authority.  While the applicant may be responsible for its repair, she cannot be held liable for the costs associated with any drawing and submission of plans in respect thereof, as I understood from correspondence that certain parts of the sectional title development may not have had plans passed by the local authority.  The latter costs must be absorbed by the respondent, if and when they arise.

[46]	Notwithstanding the conclusion which I come to, it appears to me that the body corporate should have dealt with such a situation by an adoption of a unanimous resolution, that in respect of the maintenance of the garden walls enclosing the exclusive use areas of all units, the maintenance and the repair to such walls will be effected by the imposition of a special levy, to which all owners would contribute based on their respective participation quota.  The respondent has been successful in its counter application, however it may elect not to enforce the judgment against the applicant for the simple reason that the structural defect in the wall which gave rise to the present litigation appears to manifest itself in the walls surrounding other exclusive use areas.   The aerial photographs of the sectional title scheme indicate that each of the sectional units has a garden area which is enclosed by a wall very similar to that which surrounds the applicant’s garden.  In order for the scheme to operate in a harmonious manner, it would be prudent for the owners to adopt measures to deal with the situation that led to the applicant filing her claim, alternatively to explore whether such walls may be insured against such damage.

[47]	Both parties sought costs against each other in the event that they succeeded.  In light of the conclusion I have reached, I see no reason why costs should not follow the result.

[48]	In the result, I make the following Orders:

1.	The applicant’s application for the appointment of an administrator in terms of section 46 of the Sectional Titles Act, No. 95 of 1986 is dismissed with costs, including the costs occasioned by the urgent application on 16 September 2013;

2.	In respect of the respondent’s counter application:

2.1	The applicant is directed and ordered to remediate and/or demolish the wall on her property, depicted on annexure “A” to the applicant’s founding affidavit, and to repair and/or rebuild same in compliance with the National Building Regulations and Building Standards Act and to the satisfaction of the Building Inspector appointed by the Hibiscus Coast Municipality.

2.2	The applicant is directed and ordered to take the steps set out in 2.1 above within 90 (ninety) days of the date of this order;

2.3	The costs of the demolition, remediation, repair and/or rebuilding of the wall shall be borne by the applicant.

2.4	The applicant is to pay the costs of the counter application.

_______________________
M R CHETTY
JUDGE OF THE HIGH COURT
DURBAN

Appearances:

For the Applicant: 		Ms K Northmore of Biccari Bollo Mariano Inc, Durban. 

For the Defendant:	Adv. C Snyman, Instructed by Wilhelm Steynberg Attorneys, c/o Mooney Ford, Durban. 

Date of hearing:		5 August 2014. 

Date of judgment:		28 October 2014.