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Tshwane v Faeriedale Body Corporate

4 June 2003

Division: The Supreme Court of Appeal
Case No: 303/2002
Judgment date: 22 May 2003
Coram: Streicher, Navsa, Cloete JJA, Jones and Shongwe AJJA

Summary
The issue faced by the court in this appeal was whether a juristic person as meant by s 36(1) of the Sectional Titles Act 95 of 1986 ("the Act") has the capacity to claim delictual damages wrongfully and negligently caused to property owned by individual members of a sectional title scheme. Sentence was given in the magistrate's court against the City Council of Pretoria ("the appellant"), for damages in the amount of R53 542,24 plus interest and costs. The damage was caused to two units and the boundary wall of the Faeriedale sectional title unit ("the complex") by a falling tree which was cut down by employees of the appellant.

On appeal the judgment was upheld by the Transvaal Provincial Division("the court a quo") - reported as Stadsraad van Pretoria v Body Corporate Faeriedale 2002 (1) SA 804 (T). Turning to s 36(6), we see that it specifies the locus standi of the body corporate as follows:

"The body corporate shall have perpetual succession and shall be capable of suing and of being sued in its corporate name in respect of-
a) any contract made by it;
b) any damage to the common property;
c) any matter in connection with the land or building for which the body
corporate is liable or for which the owners are jointly liable;
d) any matter arising out of the exercise of any of its powers or the
performance or non-performance of any of its duties under this Act
or any rule; and
e) any claim against the developer in respect of the scheme if so determined by special resolution."

In his judgment, Streicher JA (Navsa JJA, Cloete JJA, Jones AJJA and Shongwe AJJA concurring) upheld the appeal from the court a quo. He found that the damage caused to the building was not a situation as intended by ss 36(6)(c) or (d) and therefore locus standi could not be granted.

In the first place, s 36(6)(c) deals with the capacity of the body corporate to act as a defendant and not as a claimant. In the second place, s 36(6)(d) does not apply because the damage has to be as a result of "the exercise of any of its (the body corporate's) powers or the performance or non-performance of any of its duties under this Act or any rule". This is not the case, since the damage was caused by the negligent actions of the appellant's employees.

The body corporate's duty to repair common property is circumscribed, for instance to
maintain the common property (including elevators) properly and to keep it in a state of good and serviceable repair (s 37(1)(j)); and in general, to control, manage and administer the common property for the benefit of all owners (s 37(1)(r)).
The body corporate has no corresponding duty in respect of individual property - in fact, s 44(1)(c) clearly states that the duty on the owner is to "repair and maintain his section in a state of good repair and, in respect of an exclusive use area, keep it in a clean and neat condition".

The duty placed on the body corporate in terms of s 37(1)(f) to insure the buildings (which by implication includes the individual sections) does not translate into a duty to repair the individual properties, especially when read in the light of s 37(4), which states that the body corporate shall be deemed to have an insurable interest for the replacement of the building.
This provision would have been unnecessary had the body corporate been under an obligation to repair the building.

For the above reasons s 36(6) therefore does not give the body corporate the capacity to act as a claimant in the recovery of damages to private property.

Full judgment

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