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Monday Nov 19, 2012

Body corporate ordered to restore property owner's access right

The Fisher v Body Corporate of Misty Bay (2012 94) SA 215 (NGP) decision highlights the consequences a body corporate should consider before summarily denying an occupier the right of access to a complex.

According to the body corporate of the Misty Bay Complex (the respondent), an owner of one of the units (the applicant) had fallen into arrears in respect of his rates and levies.

Due to the applicant's failure to make the necessary payments, the respondent made the hasty decision to suspend his access tag. This suspension resulted in the applicant being unable to enter and exit the complex as and when he pleased.

Reacting to this decision, t he applicant brought an urgent application in the North Gauteng High Court for "the restoration of the applicant's possession and access to the house".

In defence of its actions, the respondent's legal representatives submitted two arguments. The first was that the applicant's car, rather than the applicant himself, had been barred from accessing the complex.

Thus the respondent submitted that the applicant was only restricted "when using his vehicle", as opposed to being restricted in general.

The basis for the second argument was that even if the court found against the respondent on the first submission, the respondent was nevertheless entitled to suspend the applicant's access on account of the arrears.

To bolster this second submission, the respondent submitted that the rules of conduct of the Misty Body Corporate stipulated that a failure to pay rates and taxes entitled the body corporate t o suspend occupiers' access tags.

Judge Legodi Phatudi dismissed the technicality of the first argument, saying such an action amounted to spoliation.

He went on to discuss the rules relied on by the respondent and concluded that the rules contained no reference that justified the respondent's actions.

More importantly, Judge Phatudi pointed out that even if such a rule had been found to exist, it would not have entitled the respondent to "take the law into its own hands", which, according to the court, is exactly what the respondent did in this case.

Interestingly, Judge Phatudi expressed the view that the suspension of access amounted to spoliation of the house as well as the vehicle. Accordingly, he suggested that the applicant's request in his notice of motion should be amended to include the restoration of the motor vehicle. For no apparent reason, the applicant declined to take advantage of this opportunity.

Judge Phatudi went on to point out that the robust remedy of mandament van spolie is applicable only i n circumstances when the access in question is required for the "use of the house and/or motor vehicle".

In other words, the peaceful and undisturbed possession of the property must be dependent on the right of access to the premises in order for the remedy to apply.

In drawing to the close of his judgment, Judge Phatudi took exception to the respondent's insistence, which continued right up to the hearing, that it was entitled to restrict the applicant's access to the complex. To demonstrate this distaste, he awarded a punitive costs order against the respondent.

The Misty Bay decision reveals the harsh stance the court takes in circumstances where a party takes the law into its own hands. It is clear that the provision for such action in the rules of a complex does not exempt a body corporate from following the due process of the law.

Lucia Erasmus and Lara Thomas, Cliffe Dekker Hofmeyr.

Weekend Argus, Saturday Edition


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