Erf 377 Constantia was owned by the second appellant, Alphen Farm Estate in Constantia (Pty) Ltd (Alphen). Erf 377 Constantia was then subdivided and two precincts were established, a historic precinct and a residential precinct. Alphen remains the owner of the historic precinct which is comprised of sections 1 and 2 of the sectional title scheme. The residential precinct consists of sections 3 to 19. The respondents own these units between them. Prior to the subdivision and coming into existence of the sectional title scheme, the first appellant Mobile Telephone Networks (MTN), Vodacom (Pty) Ltd (Vodacom) and Alphen concluded lease agreements pursuant to which 2G cellular antennae were installed on the rooftop of one of the buildings located in the historic precinct.
On 10 October 2012, one of the trustees in charge of the historic precinct sought the consent of residential precinct trustees for the upgrading of the MTN and Vodacom antennae that were located on the common property. This consent was given on the same day and the antennae were upgraded with the base station equipment also upgraded. During December 2013, the City of Cape Town (the City) served a notice on Alphen to the effect that the base station had been erected in contravention if the National Building Regulations and Building Standards Act 103 of 1977 in that no consent had been obtained for it.
The residential precinct owners (the present respondents) applied to the Western Cape High Court for an order compelling MTN to remove the network infrastructure, for Alphen to co-operate to the extent necessary to allow for this removal. MTN and Alphen opposed the application. The Western Cape High Court held that the owners of sections 3-19 had the requisite locus standi to bring the application and granted the interdictory relief sought by the owners. MTN and Alphen appealed to the SCA against this order.
The question before the court was whether the owners of the sectional title scheme had the requisite locus standi to seek the interdictory relief in relation to the common property.
The respondents argued that the infrastructure is unlawful because it breaches the zoning scheme regulations and that it was erected in breach of two conditions registered against. The appellants argued that sectional title owners are, unlike conventional owners, burdened by the provisions of the Sectional Titles Act (the Act), the rules and the regulations of the body corporate. According to the appellants, section 41 of the Act applies. This section dealt with proceedings being instituted on behalf of bodies corporate. In order to utilise this section, adverse events must have been suffered by both the owner wishing to institute the proceedings and the body corporate.
The Supreme Court of Appeal (the SCA) found that the body corporate is competent to institute proceedings in relation to the matters which were the subject of this case. The body corporate did not institute any proceedings nor was it called upon to do so by the respondents. The relief available to an owner in the position of the respondents in terms of section 41 is to approach the court for the appointment of a curator ad litem to the body corporate so that the curator may investigate the cause the owner’s complaint and, if so advised, take action aimed at remedying the situation. The importance of section 41 is that it filters out unmeritorious claims of overzealous individuals and it ensures that individuals complaining should have the advantage of the information and the funds of the corporation in pursuing legitimate claims.
The SCA held that the respondents were obliged to apply for the appointment of a curator ad litem for the body corporate. The appeal succeeded and was upheld with costs.
 Section 41 has since been repealed by the Sectional Title Schemes Management Act, though a similar provision is contained in section 9 of the Sectional Title Schemes Management Act.
Appeal upheld with costs.
The order of the court a quo is set aside and substituted by “The application is dismissed with costs, such costs to include those of two counsel”.
The value of this decision is that it sets out how aggrieved owners in a sectional title scheme should act in instituting proceedings on behalf of the body corporate where the body corporate either fails or refuses to act.
Written by Jan-Harm Swanepoel, Candidate Attorney and supervised by Gary Burochowitz, Attorney.