Sectional Titles

Section 4(2)

Section 4(2) of the Sectional Titles Act deals with two related but distinct issues. The first issue relates to the number of buildings and the number of properties to which a scheme may relate and the second issue relates to the location of the building/buildings which is/are to be divided into sections.

In interpreting this section, the following maxims are instructive, namely the Judicis est ius dicere sed non dare the Casus omissus and, most importantly the Expressio unius est exclusio alterius.

The first issue is addressed in the first part of the section and the second issue is addressed in the proviso thereto. It must be noted that the buildings referred to in the first part of the section need not necessarily be sections, but such buildings could be exclusive use areas as well. The buildings referred to in the proviso, however, can only relate to sections and nothing else. Thus, it is possible to have buildings comprising of exclusive use areas on another, non-contiguous property forming part of one development scheme.

It must be noted that, though the section provides for the establishment of a scheme on properties that are non-contiguous to each other, it does not, however, provide for buildings comprising of sections to be erected on non-contiguous properties as mooted in some circles. The proviso to the section expressly and exclusively deals with the location of the building(s) comprising of sections in instances where a scheme is to be developed on more than one property. It makes provision for two scenarios, namely that the building/s should be erected on one property only and that, if the building/s is/are to be erected on more than one property then such can occur only in respect of contiguous properties and only if the same have been notarially tied.

An argument in support of a proposition seeking to justify an interpretation of the section to the effect that it provides for the erection of buildings comprising sections on non-contiguous properties has been raised. This argument opines that the proviso could not make reference to non-contiguous property because it is not possible to erect one building on non-contiguous properties. Though plausible, this argument is self defeating and cannot be supported because the proviso not only relates to a building, but relates to buildings as well, yet it is possible to erect buildings on non-contiguous properties. It is, therefore, submitted that the maxim Expressio unius est exclusio alterius finds application in this instance, and there are no compelling reasons why it should not.

Lastly, it is submitted that, if the exclusion of reference to non-contiguous properties in the proviso constitutes a casus omissus, then it is not for the interpreter to fill in such a gap, but for the legislature to do so, more specifically in the light of the maxim Judicis est ius dicere sed non dare.

Readers' views on this issue will be appreciated - Editor

Republished with permission from SA Deeds Journal

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