THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 208/2017
In the matter between:

MOBILE TELEPHONE NETWORKS (PTY) LTD
FIRST APPELLANT

ALPHEN FARM ESTATE IN CONSTANTIA (PTY) LTD
SECOND APPELLANT

and

SPILHAUS PROPERTY HOLDINGS (PTY) LTD
FIRST RESPONDENT

JAN ARSEEN JORIS DE DECKER
SECOND RESPONDENT

THE TRUSTEES FOR THE TIME BEING OF
THE RIETVLEI TRUST
THIRD RESPONDENT

MARTIN RYMAN
FOURTH RESPONDENT

JADE ANN RYMAN
FIFTH RESPONDENT

FRANCES ILSE HILLS
SIXTH RESPONDENT

THE TRUSTEES FOR THE TIME BEING OF
THE RISTELLE INVESTMENT TRUST
SEVENTH RESPONDENT

RENE ADELE LARSEN
EIGHTH RESPONDENT

SUSAN MARTIN N.O.
NINTH RESPONDENT

MICHAEL BLACK N.O.
TENTH RESPONDENT

PAMELA GOLDIE BUCKHAM
ELEVENTH RESPONDENT

ALYSON ROSLYNNE RINK
TWELFTH RESPONDENT

RAPHAEL UNIT 104 (PTY) LTD
THIRTEENTH RESPONDENT

MARC ANDRE PAUL MARIE COSSE
FOURTEENTH RESPONDENT

JANE HANDSLEY PORTER
FIFTEENTH RESPONDENT

L Y INVESTMENTS (PTY) LTD
SIXTEENTH RESPONDENT

JANET BEYER RUSSEL
SEVENTEENTH RESPONDENT

QUELLE FOUNDATION
EIGHTEENTH RESPONDENT

CHEROKEE ROSE PROPERTIES 199 CC
NINETEENTH RESPONDENT

RONALD ALEXANDER RINK
TWENTIETH RESPONDENT

Neutral citation:  Mobile Telephone Networks (Pty) Ltd & another v Spilhaus Property
Holdings (Pty) Ltd & others (208/2017) [2018] ZASCA 16 (15 March 2018)

Bench:
Ponnan, Saldulker and Swain JJA and Plasket and Makgoka AJJA

Heard:
23 February 2018

Delivered:
15 March 2018

Summary:
Sectional title scheme – locus standi of unit owners to institute
proceedings – matter falling within s 41(1) of the Sectional Titles Act 95 of 1986 –
owners obliged to apply for the appointment of a curator ad litem.

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Western Cape Division, Cape Town (Williams AJ sitting as court of
first instance):

(1) The appeal is upheld with costs including those consequent upon the
employment of two counsel.
(2) The order of court below is set aside and substituted by:
‘The application is dismissed with costs, such costs to include those of two
counsel.’

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Ponnan JA (Saldulker and Swain JJA and Plasket and Makgoka AJJA
concurring):

[1] Sectional title ownership consists of three elements, namely individual ownership
of a section, joint ownership of the common parts of the sectional title scheme and
membership of a body corporate.1 The registered title-holder of a unit is the owner of
the section, joint owner of the common parts of the scheme and a member of the body
corporate.2 Thus, a person, buying into a sectional title scheme, enters into a series of
interlocking relationships. The Sectional Titles Act No 95 of 1986 (the Act)3 introduced

1 Du Bois Wille’s Principles of South African Law 9 ed at 564.
2 Wille’s at 564
3 The Act has been substantially amended by the Sectional Titles Schemes Management Act 8 of 2011
(the STSMA), which came into operation before the commencement of these proceedings in the court
below on 7 October 2010.

several new concepts into our law. By providing for the division of land and buildings
comprising a development scheme into sections and common property, it created an
entirely new composite res, called a unit, which consists of a section and an undivided
share in the common property.4 The section is considered the principal component, with
the undivided share in the land and other common property inextricably linked thereto
as an accessory.5 The Act also created an entirely new form of composite ownership,
namely separate ownership of a section coupled with joint ownership of the common
property. Sectional owners own the common property collectively in undivided shares in
accordance with the provisions of the Act.6

[2] The question raised by this appeal is whether the owners in a sectional title
scheme had the requisite locus standi to seek interdictory relief in relation to the
common property. The Western Cape Division, Cape Town (per Williams AJ) answered
that question in favour of the owners. The issue arises for determination against the
backdrop of the following facts: Until its subdivision in terms of the Act, Erf 377
Constantia was owned by the second appellant, Alphen Farm Estate in Constantia (Pty)
Ltd (Alphen). On subdivision, two so-called precincts were established, namely a
historic precinct and a residential precinct. The historic precinct, which has remained the
property of Alphen, comprises sections 1 and 2 of the sectional title scheme. The
residential precinct consists of sections 3 to 19 of the scheme. Between them, the
respondents7 own those 17 units. Located within the historic precinct is the original
Alphen Hotel (which has been declared a provincial heritage site in terms of the
National Heritage Resources Act No 25 of 1999) and commercial office buildings.

4 Van der Merwe Sectional Titles Share Blocks and Time-Sharing 2015 para 1.9.
5 Willie’s at 564.
6 Section 2(c).
7 Spilhaus Property Holdings (Pty) Ltd (1st Respondent); Jan Arseen Joris De Decker (2nd Respondent);
The Trustees for the time being of the Rietvlei Trust (3rd Respondent); Martin Ryman (4th Respondent);
Jade Ann Ryman (5th Respondent); Frances Ilse Hills (6th Respondent); The Trustees for the time being
of the Ristele Investment Trust (7th Respondent); Rene Adele Larsen (8th Respondent); Susan Marin N.O.
(9th Respondent); Michael Black N.O. (10th Respondent); Pamela Goldie Buckham (11th Respondent);
Alyson Roslynne Rink (12th Respondent); Raphael Unit 104 (Pty) Ltd (13th Respondent); Marc Andre Paul
Marie Cosse (14th Respondent); Jane Handsley Porter (15th Responden); L Y Investments (Pty) Ltd (16th
Respondent); Janet Beyer Russel (17th Respondent); Quelle Foundation (18th Respondent); Cherokee
Rose Properties 199 CC (19th Respondent); Ronald Alexander Rink (20th Respondent).

[3] Shortly after registration of the sectional title scheme, litigation ensued between
various owners in the scheme. The litigation was settled and a settlement agreement
was made an order of court, in terms of which management rules, conduct rules and
guidelines were agreed upon by the parties. According to those rules, the body
corporate consists of four trustees – two of whom are elected by the owners of units in
the residential precinct (the residential precinct trustees) and two by the owner (Alphen)
of the units in the historic precinct (the historic precinct trustees). In the event of any
deadlock between the historic and residential precinct trustees, such deadlock must be
referred for resolution to a referee, who is obliged to take into account and be guided by
the guidelines at all times.

[4] Prior to the subdivision and coming into existence of the sectional title scheme,
the first appellant, MTN Mobile Telephone Networks (Pty) Ltd (MTN) and Vodacom
(Pty) Ltd (Vodacom), on the one hand, and Alphen, on the other, concluded agreements
of lease pursuant to which 2G cellular antennae were installed on a rooftop of one of the
buildings, namely the Mill Range building, which is located within the historic precinct.
On 10 October 2012 one of the historic precinct trustees sought the consent of the two
residential precinct trustees, for MTN and Vodacom to upgrade their existing cellular
installations on the Mill Range building from 2 to 3G, which consent was granted on the
same day. On or about 1 November 2013 the upgraded antenna was erected, by the
installation of a fake chimney some five metres in height. At the same time the base
station equipment, which since inception was housed within the hotel building, was also
upgraded.

[5] 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 of the
National Building Regulations and Building Standards Act No 103 of 1977 as ‘no prior
written approval for the erection of such building [had] been obtained from the [City]’.
Alphen was ordered to ‘obtain written approval for the said unauthorised building work,
by submitting and having building plans approved within 60 days’. Failure to comply, so
the notice stated, ‘constitutes a criminal offence in terms of . . . the National Building
Regulations’.

[6] On 21 January 2014 Mr Pieter van Staden of Warren Petterson Planning (WPP)
wrote to the City:
‘[P]lease be informed that we have been appointed by MTN (and the property owner) to prepare
and submit the necessary applications. Please be advised that the legislation requires Council’s
Consent before we would be able to submit the Building Plan.
Once the Consent Use Application has been approved, we will submit the Building Plan. This
may take some time, around 6 months, depending if objections are received.’
At a meeting of the trustees of the scheme on 19 February 2014 the residential precinct
trustees confirmed that they were withdrawing their consent to the upgrade because, as
it was put, ‘significant new issues have come to the fore, which they were not aware of
at the time’.

[7] On 3 April 2014 WPP lodged an application with the City for ‘[c]onsent use,
council’s approval, consent [in terms of] Title Deed, [and] amendment of Title Deed
condition to permit existing rooftop cellular communications infrastructure’. In response,
on 9 May 2014 the City addressed a letter to WPP pointing out that the application is
incomplete and cannot be processed because certain information and documents are
missing including ‘a Power of Attorney signed by all registered owners (all sectional title
unit owners) as the proposal is located on common property’. By then nine of the
residential precinct owners or their representatives had already deposed to affidavits
objecting to the installation. On 14 May 2014 the attorney for the residential precinct
owners wrote to Alphen asserting that the cell-phone mast installation, which had been
installed on the common property, was illegal. The letter also pointed out that Alphen’s
application to the City for land use approval was made without the consent of all owners
in the scheme and that this rendered the application defective.

[8] Impasse having been reached, on 1 August 2014 the residential precinct owners
(the present respondents) applied to the high court for an order directing: (a) MTN to
remove the cellular network base transceiver station together with associated
infrastructure, cabling and support structure; and (b) Alphen to co-operate to the extent
necessary in the removal of the installation. MTN and Alphen opposed the application.

In addition, they launched a counter application seeking the postponement of the main
application pending inter alia: (a) the final determination of the consent use application
lodged with the City; (b) the amendment of the title deed; (c) the approval of any
required building plans in respect of the infrastructure; and (d) the joinder of Vodacom
as a party to the proceedings.

[9] At the commencement of the hearing before Williams AJ, the learned judge was
informed that the matter had been settled as between the respondents and Vodacom –
the latter having since been joined as a party to the proceedings. In terms of the
settlement agreement, Vodacom undertook to ‘disconnect its cellular services presently
installed on the roof of the Mill Range building’ and to ‘remove all its equipment,
infrastructure, cabling and support structures associated with the cellular network base
transreceiver station installed on the roof of the premises at its own expense’.

[10] The application thereafter proceeded as against Alphen and MTN. At the
conclusion of those proceedings Williams AJ issued the following order:
‘23.1. The first respondent is ordered to remove the cellular network base transceiver station
which has being installed on the roof of the Mill Range building in Sectional Title Scheme
New Court at Alphen, registered under scheme number 449/2006, situated at remainder
erf 377,Constantia, together with associated infrastructure, cabling and support
structures (collectively, ‟the cellphone mast installation”) and to have completed such
removal, including the making-good of the Mill Range building by 3 December 2016;
23.2. The second respondent is ordered to cooperate to the extent necessary in the removal
of the cellphone mast installation;
23.3. The respondents’ application for a postponement/stay is dismissed with costs;
23.4. The respondents are ordered to pay the applicants’ costs of suit in respect of both the
main application and the respondents’ application for a postponement/stay thereof, such
costs to include the costs attendant upon the employment of two counsel;
23.5. The respondents’ liability for costs shall be joint and several, the one paying, the other to
be absolved.’

[11] The case advanced on the papers by the respondents is that the infrastructure is
unlawful in as much as: first, it breaches the zoning scheme regulations in at least two

respects; and second, it was erected in breach of two conditions registered against the
title deed of the property. Williams AJ agreed, holding ‘from the correspondence
exchanged between the City and [WPP], there have clearly been breaches inter alia of
the zoning scheme and the Title Deed restriction’. But, argue the appellants, unlike
conventional owners, sectional title owners are burdened by the provisions of the Act,
the rules and the resolutions of the body corporate. That being so, so the argument
goes, as the infrastructure is situated on common property, s 41(1) of the Act finds
application.

[12] Section 41 of the Act,8 headed ‘Proceedings on behalf of bodies corporate’,
reads:
‘(1)
When an owner is of the opinion that he and the body corporate have suffered damages
or loss or have been deprived of any benefit in respect of the matter mentioned in section 36(6),
and the body corporate has not instituted proceedings for the recovery of such damages, loss or
benefit, or where the body corporate does not take steps against an owner who does not
comply with the rules, the owner may initiate proceedings on behalf of the body corporate in the
manner prescribed in this section.
(2)
(a)
Any such owner shall serve a written notice on the body corporate calling on the body
corporate to institute such proceedings within one month from the date of service of the notice,
and stating that if the body corporate fails to do so, an application to the court under paragraph
(b) will be made.
(b)
If the body corporate fails to institute such proceedings within the said period of one
month, the owner may make application to the Court to for an order appointing a curator ad
litem for the body corporate for the purposes of instituting and conducting proceedings on behalf
of the body corporate.
(3)
The court may on such application, if it is satisfied –
(a)
that the body corporate has not instituted such proceedings;
(b)
that there are prima facie grounds for such proceedings; and
(c)
that an investigation into such grounds and into the desirability of the institution of such
proceedings is justified;

8 Section 41 has been repealed by the STSMA. A similarly worded provision is to be found in s 9 of the
STSMA.

appoint a provisional curator ad litem and direct him to conduct such investigation and to report
to the Court on the return day of the provisional order ….’

[13] The jurisdictional facts provided for in s 41(1) are that an owner be of the opinion
that he, she or it and the body corporate ‘have been deprived of any benefit in respect
of a matter mentioned in s 36(6)’.9 Section 36(6) provides:
‘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.’10

[14] The body corporate is constituted in terms of the Act.11 It is charged with the
responsibility of enforcing the rules and the control, administration and management of
the common property for the benefit of all members.12 In Wimbledon Lodge (Pty) Ltd v
Gore NO & others,13 Schutz JA pointed out:
‘The jurisdictional facts that an owner must establish in order to entitle him to apply for the
appointment of a curator are set out in s 41(1). They are:
1. The owner must hold an opinion.
2. The opinion must be either (a) that he and the body corporate have suffered damages (again
sic) or loss or (b) that he and the body corporate have been deprived of a benefit in respect of a
matter mentioned in s 36(6).
3. The body corporate has not instituted proceedings for recovery.’

9Cassim & another v Voyager Property Management (Pty) Ltd & others, Cassim & another v St Moritz
Body Corporate (Pty) Ltd & others 2011 (6) SA 544 (SCA) para 11.
10 A similarly worded provision is to be found in s 2(7) of the STSMA.
11 Section 36(1).
12 Section 36(4).
13 Wimbledon Lodge (Pty) Ltd v Gore NO & others 2003 (5) SA 315 (SCA) at para 13.

[15] Here, the first requirement is uncontentious. So too the third. That the third
(which is a purely factual enquiry) should be a requirement, said Schutz JA, is a
necessary counterpart to the sections of the Act divesting individual owners of control
and vesting it in the body corporate.14 As Malan JA pointed out in Oribel Properties 13
(Pty) Ltd & another v Blue Dot Properties 271 (Pty) Ltd & others:15
‘A body corporate has perpetual succession and is capable of suing or [being sued] in its own
corporate name in respect of the five matters referred to. Some of the powers, such as the one
in paragraph (a), are only declaratory but the power granted in paragraph (b) – and in some
circumstances paragraph (c) as well – gives it an entitlement it would otherwise not have had.
Under normal circumstances only all the owners of the common property, ie the owners of the
sections, would have been able to do so jointly as the common property is owned by them
jointly’.

[16] To satisfy s 41(1), the adverse events must be suffered not only by the owner but
by the body corporate as well, ‘for the reasons that the “and” in “he and the body
corporate” not only ordinarily conveys a conjunctive meaning, but that the word is twice
succeeded by the plural verb “have”, indicating that both he and the body are being
referred to. Moreover, one would hardly expect that the legislature would require the
body corporate to sue in matters which did not concern it.’16 Section 41(1) refers in the
alternative to matters upon which an opinion may be formed, including the deprivation of
a benefit in respect of a matter mentioned in s 36(6). Does the contemplated action fall
within any of those subdivisions? Starting with s 36(6)(c), which confers the power to
sue in respect of ‘any matter in connection with the land or building for which the body
corporate is liable or for which the owners are jointly liable’. It is common cause that the
Mill Range building and the mast are located on common property. That being so, it
seems to me that subsection (c) is satisfied. If this be not correct, another basis is
provided by s 36(6)(d), which gives the body corporate the power to sue in respect of
‘any matter arising out of the exercise of any of its powers or the performance or non-

14 Wimbledon Lodge para 14.
15 Oribel Properties 13 (Pty) Ltd & another v Blue Dot Properties 271 (Pty) Ltd & others [2010] 4 All SA
282 (SCA) para 24.
16 Wimbledon Lodge para 20.

performance of any of its duties under this Act or any rule’. To those provisions may be
added s 37(1) which, to the extent here relevant, provides:
‘A body corporate referred to in section 36 shall perform the functions entrusted to it by or under
this Act or the rules, and such functions shall include –
(k)
to comply with any notice or order by any competent authority requiring any repairs to or
work in respect of the relevant land or building or buildings;
. . . .
(n)
to ensure compliance with any law relating to the common property or to any
improvement of land comprised in the common property;
. . . .
(r)
in general, to control, manage and administer the common property for the benefit of all
owners.’

[17] I am of the opinion that it will be competent for the body corporate to institute
action in some or other form in relation to the matters which are the subject of the
litigation here. Indeed, such a conclusion accords with the general principle at common
law that where a wrong is done to it, only the company (in this case the body corporate)
and not the individual members may take proceedings against the wrongdoers.17 For,
as Schutz JA put it 'the body corporate is little more than the aggregation of all the
individual owners. Their good is its good. Their ill is its ill. The body corporate is not an
island, whatever the law of persons may say.'18 The conclusion that I therefore reach is
that s 41, which provides a comprehensive statutory right to an owner of a sectional title
unit aggrieved at the failure of the body corporate to act in respect of a matter
mentioned in s 36(6), finds application.19

[18] The body corporate has not instituted the proceedings. Nor, has it been called
upon by the respondents to do so. However, say the respondents, they can hardly be
expected to do so inasmuch as the trustees fall into two divergent camps who are at
loggerheads with each other. Cassim v Voyager Property Management (Pty) Ltd dealt
with a similar contention thus:

17 See Wimbledon Lodge para 18; see also Foss v Harbottle (1843) 2 Hare 461 (67 ER 189).
18 Wimbledon Lodge para 21.
19 Cassim para 16.

‘[I]t appears to me that the section finds application precisely when there is disharmony and
disunity in the body corporate. The more dysfunctional the body corporate, the greater, I dare
say, the need for a curator. On the view that I take of the matter, the argument advanced by and
on behalf of the appellants misconstrues the section. The section does not require an owner to
cause the body corporate to act in a particular way if the latter is unwilling to do so. All that is
envisaged is for an owner to effect service of a notice on the body corporate calling upon it
within the stated period to institute the contemplated proceedings. Should it fail to do so the
envisaged remedy available to the owner is not to compel compliance with the notice but rather
to approach the court for the appointment of a curator ad litem for the purposes of instituting and
conducting the proceedings on behalf of the body corporate.’20

[19] The relief available to an owner in the position of the respondents is to approach
the court for the appointment of a curator ad litem to the body corporate, so that the
curator may investigate the events complained of and, if so advised, take action aimed
at somehow remedying the position.21 Section 41 is an important component of the
overall structural scheme. On the one hand it filters out unmeritorious claims by over-
zealous individuals. On the other it ensures that individuals complaining should have the
advantage of the information and the funds of their corporation in pursuing legitimate
claims.22 As to whether a curator ought to be appointed, Schutz JA stated: ‘the court
has a discretion under s 41(3), having regard to whether it is satisfied that the body
corporate has not sued . . . that there are prima facie grounds for such proceedings . . .
and that an investigation into the desirability of instituting proceedings is justified’.23 No
doubt a curator ad litem would obtain proper advice and properly investigate the facts
before taking any further legal steps. Even then, the curator would have to first report to
the court, which may issue such directions as to it seems meet.24

20 Ibid para 13.
21 Cassim para 16.
22 Cassim para 17.
23 Wimbledon Lodge para 26
24 Section 41(4); see Meridian Bay Restaurant (Pty) Ltd & others v Mitchell NO 2011 (4) SA 1 (SCA).

[20] In the result the appeal must succeed and it is accordingly upheld with costs
including those consequent upon the employment of two counsel. It follows that the
order of the court below must be set aside and in its stead must be substituted an order
dismissing the application with costs including those of two counsel.

_________________
V M Ponnan
Judge of Appeal

APPEARANCES:

For First Appellant:

M Basslian SC (with him T K Manyage)

Instructed by:

Mashiane Moodley Monama Inc., Cape Town

Lovius Block Attorneys, Bloemfontein

For Second Appellant:

R W F MacWilliam SC

Instructed by:

Lawrence Whittaker Attorneys, Constantia

Lovius Block Attorneys, Bloemfontein

For Respondents:

B J Manca SC (with him K Reynolds)

Instructed by:

Shepstone Wylie, Cape Town

Phatshoane Henney Attorneys, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

15 March 2018

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Mobile Telephone Networks (Pty) Ltd & another v Spilhaus Property Holdings (Pty) Ltd
& others (208/2017) [2018] ZASCA # (# March 2018)

Today the Supreme Court of Appeal (SCA) upheld an appeal against the judgment of the
Western Cape Division, Cape Town (high court). The issue on appeal was whether owners in
a sectional title scheme had the requisite locus standi to seek interdictory relief. The high
court answered that question in favour of the owners.

Prior to the coming into existence of the sectional title scheme and by agreement between the
two appellants, MTN and Alphen, an antenna had been erected on the rooftop of a building in
the scheme. It would seem that the antenna had been erected unlawfully. Some of the
sectional owners (the present respondents) applied to the high court for an order directing
MTN to remove the antenna and Alphen to co-operate to the extent necessary in the removal
of the installation. That application succeeded before the high court.

Before the SCA the appellants argued that as the structure was on common property in the
sectional title scheme, the respondents did not have the requisite locus standi to approach the
high court for relief. Interpreting the relevant provisions of the Sectional Titles Act No 95 of
1986 (the Act), the SCA held that it was for the body corporate to institute proceedings in
relation to the issues raised by the litigation. The SCA reasoned that such a conclusion
accords with the general principle at common law that where a wrong is done to it, only the
company (in this case the body corporate), and not the individual members, may take
proceedings against the wrongdoers. The SCA thus concluded that s 41 of the Act, which

provides a comprehensive statutory right to an owner of a sectional title unit aggrieved at the
failure of the body corporate to act in respect of a matter mentioned in s 36(6), was
applicable. The SCA accordingly held that the relief available to an owner in the position of
the respondents is to approach the court for the appointment of a curator ad litem. The
curator would investigate the events complained of and, if so advised, take action aimed at
remedying the position.