Total recall – a response 1

In response to Total recall ("the article"), I do not share Roelie Rossouw's view that Registrars' Conference Resolution No. 2 of 2009 ("the Resolution") was passed on the basis of an "incorrect interpretation of Zondi J's judgement". Similarly, I do not support Roelie Rossouw's dispute of the correctness of Zondi J's finding in paragraph [42] of the Dolphin Whisper Decision ("the Decision"), which dispute is set out in paragraph 5.2 of the article. Roelie Rossouw's addition, of the words "but only if the matter is brought before the Court by "an owner of a unit in the scheme who is prejudiced by" the developer's failure to comply with the Section 25(2) Plan", constitutes a crucial and unfair distortion of Zondi J's finding.

It is clear from a perusal of the whole judgement in the Decision that an application for the registration of a Sectional Plan of Extension in terms of section 25 (9) of the Sectional Titles Act, 1986, ("the STA"), which application shows that the erection and division of the building or buildings into sections will not be strictly in accordance with the documents referred to is section 25 (2) of the STA, may only be approved if there is proof of the "changed circumstances" mentioned in section 25 (13) of the STA. It is clear from the Decision that the latter requirement, is separate from, and not dependent on, the right of the owner referred to in section 25 (13) of the STA to apply to the Court. Zondi J found that the Court was the proper forum to adjudicate on the "changed circumstances".

It is noteworthy that, according to the factual background to the Decision, the Developer had applied for the registration of a Sectional Plan of Extension in terms of section 25 (9) of the STA. The application had been rejected by the Registrar of Deeds whereupon the Developer made an application to the Court for redress. In the application, the Registrar of Deeds was the First Respondent and the relevant Body Corporate was the Second Respondent. The Court had to consider the application of section 25 (13) of the STA, because the Developer's application in terms of section 25 (9) of the STA did not conform to the documents referred to in section 25 (2) of the STA. It is remarkable that, having regard to his/her/its vested interest therein in terms of section 25 (14) of the STA, no owner of a unit in the scheme, was cited as a Respondent.

It is recorded in paragraph (47) of the Decision that: "In the present case the applicant presented no evidence to indicate why strict compliance was no longer possible or practical" (emphasis added). This revelation casts doubt on the correctness of the claim in paragraph 4.2 read with paragraph 7.1 of the article to the effect that, "for the approximately 22 years from 1 June 1988 to the date on which the Registrars of Deeds started to apply" the Resolution, the interpretation and application of section 25 (13) of the STA "worked well". Actually, the statement in the aforementioned paragraph [47] of the Decision puts a question mark on the number of horses that had bolted by the time Zondi J closed the stable.

To me, a further justification for the Decision seems to consist in the fact that the Legislator did not intend that the proper consideration of the existence or otherwise of allegedly "changed circumstances", if any, should be postponed until some owner, who feels prejudiced, applies to the Court. It is remarkable that the law does not require a Developer to give notice, of his application for the registration of a Sectional Plan of Extension in terms of section 25 (9) of the STA, to all the affected owners in all cases where the said application is not consistent with the documents referred to in section 25 (2) of the STA..

In conclusion, I clarify that cannot support the call, made in paragraph 7.2 of the article, for the recall of the Resolution.

Thabo Nqhome
08 September 2010