THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 302/08

DEON DU RAND NO
First Appellant
ANDRÉ DU RAND NO
Second Appellant
JOHAN DU RAND NO
Third Appellant
ELIZABETH SUSANNA DU RAND NO
Fourth Appellant
ELMARIE BOTES NO
Fifth Appellant
F G J WIID
Sixth Appellant

and

THE FAERIE GLEN RENAISSANCE SCHEME
Respondent

Neutral citation:
Du Rand NO v Faerie Glen Renaissance Scheme (302/08)
[2009] ZASCA 122 (28 September 2009)

Coram:
STREICHER,
LEWIS,
SNYDERS
JJA,
LEACH
and
BOSIELO AJJA

Heard:
21 AUGUST 2009

Delivered:
28 SEPTEMBER 2009

Summary:
Applicability of Housing Development Schemes for Retired
Persons Act 65 of 1988 to a sectional title scheme.

ORDER
On appeal from: Pretoria High Court (Visser AJ sitting as court of first
instance).
The following order is made:

The appeal is dismissed with costs.
JUDGMENT

SNYDERS JA: (Lewis JA, Leach and Bosielo AJJA concurring)

[1] This case concerns a development scheme in terms of the Sectional
Titles Act, namely the Faerie Glen Renaissance Scheme (the scheme).1 The
body corporate of the scheme, the respondent, applied to the Pretoria High
Court to grant an amendment to some of its management rules. The
application took an eventful procedural path - irrelevant for current purposes –
and ultimately came before Visser AJ who granted an amendment to rules 1
and 2 in the terms sought at that stage.2 Leave to appeal was granted by
Visser AJ to this court.

[2] The first five appellants are the trustees of the Ameva Trust. The trust
is the owner of one of the 150 units in the scheme and so is the sixth
appellant. No other owner opposed any of the relief sought by the
respondents. The opposition by the appellants to the amendments sought
was long-standing and unrelenting with the result that it was common cause
that it would have been impossible for the respondent to effect the
amendments by way of a unanimous resolution as required by s 35(2)(a) of
the Sectional Titles Act.3 The respondent therefore approached the court in
terms of s 1(3A) of the Sectional Titles Act, which authorises a body corporate

1 The Sectional Titles Act 95 of 1986.
2 Substantially more elaborate relief was sought in the notice of motion, but abandoned at the
hearing of the matter.
3 Section 35(2)(a): ‘The rules shall provide for the control, management, administration, use
and enjoyment of the sections and the common property, and shall comprise – (a)
management rules . . . which rules may be substituted, added to, amended or repealed from
time to time by unanimous resolution of the body corporate as prescribed by regulation;’

that is unable to obtain a unanimous resolution to ‘approach the court for
relief’, subject to the provisions of s 1(3)(c).4

[3] In respect of the respondent’s reliance on s 1(3A) the appellants
strenuously argued three points: that the meeting held by the respondent on
22 November 2005 to obtain a unanimous resolution to amend the
management rules, was not properly constituted; that the respondent was
unable to show that a majority at that meeting authorised the respondent to
approach the court in terms of s 1(3A); and that the respondent required the
written consent of the appellants, as owners whose rights would be adversely
affected by the amendments, before the court could be approached in terms
of s 1(3A).

[4] In support of their first point the appellants submitted that, before the
respondent could approach the court in terms of s 1(3A), it had to show that it
attempted to obtain a unanimous resolution at a meeting where 80 per cent of
all members of the body corporate (reckoned in number) and 80 per cent of all
members (reckoned in value) - the percentages necessary for a unanimous
decision in terms of s 1 - was present.5

[5] It is unnecessary to indulge in the detailed head and value count of
attendees that the appellants embarked on. It is sufficient to state that the
point arose because the counting was complicated by belated proxies to vote

4 Section 1(3A): ‘If a body corporate is unable to obtain a unanimous resolution, it may,
subject to the provisions of subsection (3)(c), approach the court for relief.’
Section 1(3)(c):‘(3) For the purposes of the definition of ‘unanimous resolution’ in subsection
(1) – . . . ; (c) where the resolution in question adversely affects the proprietary rights or
powers of any member as owner, the resolution shall not be regarded as having been passed
unless such member consents in writing thereto.’

5 In s 1 ‘Unanimous resolution’ is defined as ‘a resolution – (a) passed unanimously by all the
members of a body corporate who are present or represented by proxy or by a representative
recognized by law at a general meeting of the body corporate of which at least 30 days’
written notice, specifying the proposed unanimous resolution, has been given, and at which
meeting at least 80% of all the members of a body corporate (reckoned in number) and at
least 80% of all the members (reckoned in value) are present or so represented: Provided
that in circumstances determined in the rules, a meeting of the body corporate may be
convened for a date 30 days or less after notice of the proposed resolution has been given to
all the members of the body corporate. . . .’

in cases where trusts were owners of units and by the attendance of couples
of whom one voted without a proxy from the other. A head and value count is
unnecessary as the Sectional Titles Act does not require a vote at a formally
constituted meeting as a pre-condition to an approach to court for relief in
terms of s 1(3A). The only requirement apparent from s 1(3A) read with s
35(2)(a) – ignoring the proviso in s 1(3)(c) for the moment – is a purely factual
one, namely that the body corporate must have been unable to obtain a
unanimous decision. Any variety of facts may be sufficient to persuade a
court, at the hearing, of that. In this case the history of the attempts to amend
the rules and the animosity between the appellants and the respondent
overwhelmingly indicate that a unanimous decision was impossible. What is
more, the parties were agreed on this. Therefore the factual requirement of s
1(3A) was satisfied and the court below was entitled to hear the matter on that
basis.

[6] On the second point raised by the appellants a minor correction to the
appellants’ calculations of the number of attendees and votes at the meeting
of 22 November 2005, to take account of couples that attended the meeting
and one of them voted without a written proxy from the other, shows that a
majority of owners attended and voted in favour of an application in terms of s
1(3A). In addition, the appellants have been the only two of 150 unit owners
who have opposed the amendments. Since the litigation started during
February 2006 nobody else has joined their cause. As in Unlawful Occupiers,
School Site v City of Johannesburg 2005 (4) SA 199 (SCA) at 207H-I the
question can be asked whether it is conceivable that the application would
have been launched with the knowledge, but against the wishes, of the
majority of the owners in the scheme. As in that case the question can be
answered only in the negative. Furthermore, if the appellants seriously
doubted whether the respondent had the authority to instruct an attorney to
institute and conduct the proceedings on behalf of the respondent, the
procedure in Rule 7(1) should have been invoked.6 The reasons furnished in

6 Unlawful Occupiers, School Site paras 24 to 29.

this judgment further illustrate that the trustees acted in the best interests of
the body corporate by pursuing the amendments to rules 1 and 2.

[7] The third point, the reliance on the absence of written consent in terms
of s 1(3)(c) of the Sectional Titles Act, brings us to the merits of the appeal.
The appellants’ case is that the amendments to rules 1 and 2 seek to apply
the Housing Development Schemes for Retired Persons Act (the Retirement
Housing Act)7 to the scheme for the first time with the result that their
proprietary rights would be adversely affected.

[8] Rule 1 of the respondent’s management rules, in its un-amended form,
is rule 1 of the standard rules of any newly established sectional title scheme
contained in annexure 8 to the regulations in terms of the Sectional Titles
Act.8 The amendment granted replaced the standard rule 1 with the following:
‘Die Regspersoon Faerie Glen Renaissance is op 18 Augustus 2000 vir
Deeltitelskema no. SS416/2000 ingestel volgens artikel 36(1) van die Wet Op
Deeltitels Wet 95 van 1986. Die skema is geleë te Erf 3781, Faerie Glen, Uitbreiding
45, Pretoria, en is in 18 fases, elk met ‘n eie deeltitelnommer, ontwikkel
ooreenkomstig die bepalings van Wysigingskema 8270 van die Pretoria-
dorpsbeplanningskema, 1974, wat onder andere bepaal dat wooneenhede opgerig
sal word vir ‘n afree-oord vir bejaardes.
(a) Vanweë die aard van die ontwikkeling as aftree-oord, is die Wet op
Behuisingsontwikkelingskemas vir Afgetrede Persone, Wet 65 van 1988, ook van
toepassing.
(b) Die Bestuursreëls van die Regspersoon van die Faerie Glen Renaissance Skema
No SS 416/2000 is eenvormig van toepassing op alle eienaars en okkupeerders van
die wooneenhede in die 18 fases van die ontwikkelingskema.’9

7 65 of 1988.
8 ‘1. The Rules contained in this Annexure shall not be added to, amended or repealed except
in accordance with section 35(2)(a) of this Act, and subject to the provisions of section 35(3)
and (5) of the Act.’
9 My translation: ‘The body corporate of the Faerie Glen Renaissance Scheme was
established on 18 August 2000 in respect of sectional title scheme no SS416/2000 in terms of
s 36(1) of the Sectional Titles Act 95 of 1986. The scheme is situated at erf 3781, Faerie
Glen, Extension 45, Pretoria and was developed in 18 phases, each with its own sectional
title number, in accordance with the provisions of Amendment Scheme 8270 to the Pretoria
Town-Planning Scheme 1974, which provides, inter alia, for the development of dwelling units
for a retirement centre for the aged.

[9] In this court the appellants confined their objection to paragraph (a) of
the amendment. The fact that they did does not affect the outcome of the
appeal.

[10] Rule 2 of the respondent’s management rules contains the definitions
that assist in the interpretation of the rules. The amendment that was granted
inserted an additional definition, as para 2(d):
‘beteken “aftree-oord” ‘n behuisingsontwikkelingskema vir afgetrede persone vir die
huisvesting van inwoners met ‘n minimum ouderdom van 50 jaar elk of in geval van
‘n egpaar as inwoners moet een van die gades ten tye van okkupasie minstens 50
jaar oud wees;’.10

[11] The answer to the question whether the Retirement Housing Act is
applicable to the Faerie Glen Renaissance Scheme even before the
amendments to rules 1 and 2 resolves all of the remaining issues in this
appeal.

[12] Agricultural land was proclaimed as part of the Pretoria Town-Planning
Scheme 1974 for the development of the scheme.11 Two erven, 3773
(previously Erf 1) and 3774 (previously Erf 2), were consolidated into Erf
3781. In terms of Amendment Scheme 8270 the area constituting the former
Erf 3773 was zoned for ‘group housing’ with the explicit provision that
‘dwelling-units for a retirement centre for the aged be erected’.12 The area
constituting the former Erf 3774 was zoned for ‘special use’ with the explicit
provision that it be used for ‘communal and related facilities which in the
opinion of the City Council can be associated with a security retirement centre

(a) Due to the nature of the development as a retirement centre, the Housing Development
Schemes for Retired Persons Act 65 of 1988 is also applicable.
(b) The management rules of the Faerie Glen Renaissance Scheme No SS416/2000 are
uniformly applicable to all owners and occupants of the units in the 18 phases of the
development scheme.’
10 My translation: ‘“retirement village” means a housing development scheme for retired
persons for the accommodation of occupants of at least 50 years of age or in the case of
occupation by a married couple, one of them shall, at the time of occupation, be at least 50
years old.’
11 Amendment Scheme 8270 to the Pretoria Town-Planning Scheme 1974, Administrator’s
Notice 2027, 20 November 1974, promulgated on 28 June 2000.
12 Annexure B5969 to the Pretoria Town-Planning Scheme 1974.

for the aged’.13 The conditions of proclamation and the zoning requirements of
the land on which the scheme was established therefore restricted the
developer as to the nature of the development on that land.

[13] It is not surprising then that a sectional title scheme was developed on
the relevant land and that ownership of the units were acquired from the
developer in terms of the Sectional Titles Act. The developer, in the
agreements of sale of units of the scheme, complied with the newly
established township planning provisions and zoning requirements. As the
Retirement Housing Act has as its purpose the regulation of ‘[t]he alienation of
certain interests in housing development schemes for retired persons; and to
provide for matters connected therewith’, it is also not surprising that the
agreements of sale complied with the Retirement Housing Act.

[14] In clause 1 of the agreement between the developer and the
purchasers of units in the scheme, which contains several definitions,
‘wetgewing’ is defined as the Retirement Housing Act and the Sectional Titles
Act. Clause 3.5 of the agreement provides for ss 4(3) and 8 of the Retirement
Housing Act to be applicable. These sections deal with instances where the
purchaser is entitled to cancel the agreement as a result of the developer’s
failure to deliver to the purchaser a certificate of completion prior to
occupation of the unit sold. In compliance with the zoning requirements the
agreement provides for the creation of basic security, community and nursing
services related to a retirement village for the elderly. It specifically provides
that a unit is sold subject to not only the conditions of title, but the applicable
township planning provisions. Clause 14.3 of the agreement reads:
‘In die geval van ‘n enkel Okkupeerder, of twee afsonderlike Okkupeerders, is die
minimum ouderdom vir Okkupeerders 50 jaar. In geval van ‘n egpaar as
Okkupeerders, moet een van die twee gades minstens 50 jaar oud wees. Die Koper
bevestig voldoening aan hierdie ouderdomsbepaling.’14

13 Annexure B5970 to the Pretoria Town-Planning Scheme 1974.
14 My translation: ‘In the event of a single occupant, or two independent occupants, the
minimum age for occupants is 50 years. In the event of a married couple, one of the spouses
has to be at least 50 years old. The purchaser confirms compliance with this age
requirement.’

[15] In the same explicit terms the agreement restricts, in clause 14.6, the
right of any purchaser of a unit or successive purchaser to sell, lease or
transfer the rights acquired in the agreement of sale if such sale, lease or
alienation has the consequence that the unit is occupied by persons in
contravention of the provisions pertaining to age.15 The agreement contains
all the essential provisions prescribed in s 4 of the Retirement Housing Act for
an agreement in terms whereof a developer alienates a housing interest in
terms of the Act.

[16] Two provisions in the agreement motivated the appellants to argue that
the agreement does not comply with the Retirement Housing Act and that the
Act is therefore not applicable. First the agreement, in clause 2.2, specifies
that the title deed has not been endorsed in accordance with the provisions of
s 4C of the Retirement Housing Act.16 Second the developer, in clause 14.5 of
the agreement, reserved the right to sell up to 20 per cent of the units to
persons under the age of 50 years.17

[17] Section 4C of the Retirement Housing Act is not applicable to the
alienation of a right of ownership in a development scheme, as in this case,
but only a right of occupation. Clause 2.2 of the agreement does no more than
state exactly that. This clause indicates an attempt to comply with the
Retirement Housing Act, by explaining why there is no need to comply with s

15 Clause 14.6: ‘Die koper sal nie geregtig wees om sy regte in terme van hierdie
Ooreenkoms te vervreem, te verhuur of oor te maak aan ‘n derde party indien sodanige
vervreemding of verhuring meebring dat die Eenheid geokkupeer word deur persone wat nie
aan die ouderdomsbepaling hierbo genoem, of aan enige ander bepaling van hierdie
Ooreenkoms, voldoen nie. Opvolgers in Titel van die Koper sal onderworpe wees aan die
verpligtinge van die Koper soos vervat in hierdie Ooreenkoms en die Reëls van die
Bestuursvereniging.’
16 Clause 2.2: ‘Die Titelakte van die grond is nie geëndosseer soos in Artikel 4C van die Wet
bedoel nie, aangesien die regsgrondslag van die vervreemding van Deeltiteleiendomsreg in
terme van die Deeltitelwet is.’
17 Clause 14.5: ‘Dit is die verklaarde voorneme van die Maatskappy om te verkry dat
Eiendomsreg op Eenhede van die Ontwikkeling oorwegend toegeken sal word aan Kopers bo
die ouderdom van 50 jaar. Die Maatskappy behou egter uitdruklik die reg voor om huidiglik en
in die toekoms tot 20% van die Eenhede van die Ontwikkeling te vervreem aan persone
onder die ouderdom van 50 jaar en die Koper stem onherroeplik toe tot sodanige
vervreemding.’

4C of the Act. In any event non-compliance with s 4C could not render the Act
inapplicable.

[18] The reservation, in clause 14.5 of the agreement, of the right to sell up
to 20 per cent of the units to persons under the age of 50 years in clause 14.5
of the agreement does not violate the provisions of the Retirement Housing
Act which prescribes the age of occupants as opposed to the age of owners.
Only the right to sell ownership in a unit to a person under the age of 50 years
is reserved in the agreement. Clause 14.6, discussed above, would remain
equally applicable to the 20 per cent owners younger than 50 years in relation
to the restriction of the age of occupancy to persons 50 years or older.

[19] This distinction between the age of the owner and the age of the
occupier that the developer respected in clause 14.5 originates from s 7(1),
read with the definition of ‘retired person’, of the Retirement Housing Act:
‘After a housing interest has been transferred to or has otherwise been vested in a
person by virtue of a contract, no person other than a retired person or the spouse of
a retired person may occupy the land to which that housing interest relates, except
with the written consent of all the holders of housing interests in the housing
development scheme concerned.’
Section 1 defines ‘retired person’ as ‘a person who is 50 years of age or
older’.18

[20] A ‘housing interest’ is defined in the Retirement Housing Act and
includes the ‘right to claim transfer of the land to which the scheme relates’.19
If that leaves any doubt whatsoever as to whether the Retirement Housing Act
is, by its own terms, applicable to this particular sectional title scheme, the
definition of ‘housing development scheme’ removes any doubt:
‘“Housing development scheme” means any scheme, arrangement or undertaking –
(a) in terms of which housing interests are alienated for occupation contemplated in

18 In so far as ‘contract’ is defined as meaning ‘a document in terms of which a housing
interest is alienated to a retired person. . .’ it does not change this meaning of s 7(1) for the
reasons stated in para 33 of the judgment of Streicher JA. Maybe for those reasons the point
was not argued before us.
19 Section 1: ‘“housing interest”, in relation to a housing development scheme, means any
right to claim transfer of the land to which the scheme relates, or to use or occupy that land.’

section 7, whether the scheme, arrangement or undertaking is operated pursuant to
or in connection with a development scheme or a share block scheme or
membership of or participation in any club, association, organization or other body, or
the issuing of shares, or otherwise, but excluding a property time-sharing scheme;’
A ‘development scheme’ is defined as having the meaning as it does in the
Sectional Titles Act and includes a sectional title scheme such as is currently
under consideration.

[21] When the provisions of the Retirement Housing Act are applied to the
facts it is clear that the developer sold and transferred a ‘housing interest’ –
ownership of a unit – in a ‘housing development scheme’ – a sectional title
scheme – for occupation by ‘retired persons or the spouse of a retired person’
– a person who is 50 years of age or older or the spouse of such a person –
as contemplated in s 7. In these circumstances s 7 applies.

[22] The conclusion is inevitable: the Faerie Glen Retirement Scheme was
developed in compliance with the provisions of the Pretoria Town-Planning
Scheme 1974; the agreement of sale in terms of which the developer sold the
units complies with the provisions of the Retirement Housing Act; and the
Retirement Housing Act has been applicable to the Faerie Glen Renaissance
Scheme since its inception. The amendment of rules 1 and 2 of the
management rules to reflect the existing state of affairs serves only to clarify
and explicitly protect the interests of existing and prospective owners of units
in the scheme. It certainly does not adversely affect the rights of the
appellants.

[23] The court a quo awarded some of the costs of the application to the
appellants, largely as a result of the abandonment by the respondent of the
greater part of the relief sought in the notice of motion at the commencement
of the hearing in the court below. The appellants urged interference with that
costs order to include the costs of two counsel. There is no basis on which to
interfere with the discretion exercised by the court a quo.

[24] The appeal is dismissed with costs.

______________________
S SNYDERS
Judge of Appeal

STREICHER JA  (LEWIS JA, LEACH and BOSIELO AJJA concurring)

[25] I agree that the appeal should be dismissed with costs. In regard to my
colleague Snyders’ dismissal of the first two points argued by the appellant
and referred to in paragraph 3 of her judgment I have nothing to add. I do
however wish to state my reasons for dismissing the third point argued by the
appellant.

[26] The Faerie Glen Renaissance Scheme (the FGR Scheme) is a
development scheme in terms of the Sectional Titles Act 95 of 1986. In terms
of s 35(1) of that Act a development scheme shall, as from the date of
establishment of a body corporate, be controlled and managed, subject to the
provisions of the Act, by means of rules. Section 35(2)(a) provides that the
rules should comprise, amongst other things, management rules which may
be amended from time to time by unanimous resolution of the body corporate.
A unanimous resolution is defined in s 1 of the Sectional Titles Act  but the
definition is qualified in s 1(3)(c) to the effect that where the resolution
‘adversely affects the proprietary rights or powers of any member as owner,
the resolution shall not be regarded as having been passed unless such
member consents in writing thereto’.

[27] The appellants contended that the proposed amendments of the
management rules quoted in paragraphs 8 and 10 of my colleague’s
judgment, by providing that the Housing Development Schemes for Retired
Persons Act 65 of 1988 (the Retired Persons Act) is applicable to the FGR
Scheme adversely affects their proprietary rights as owners and that these
amendments therefore required their consent in writing. The respondent, on
the other hand, contended that the Retired Persons Act applied to the FGR
Scheme and that the statement in the amended rule merely stated what the
existing position was. The issue to be decided is therefore whether or not the
Retired Persons Act applied to the FGR Scheme.

[28] The purpose of the Retired Persons Act is stated in the long title to be
‘to regulate the alienation of certain interests in housing development
schemes for retired persons; and to provide for matters connected therewith’.
The Act prescribes formalities in respect of contracts for the alienation of
housing interests to a retired person (s 2); it prescribes in what language a
contract should be drawn up (s 3) and what the contents of the contracts
should be if the seller concerned is a developer (s 4); it deals with rights of
occupation as defined in the Act (s 4A, B and C), which are not of relevance in
respect of the FGR Scheme; it provides that if a facility is to be maintained for
the care of debilitated persons the facility would be deemed to be a home for
the aged as defined in s 1 of the Aged Persons Act 81 of 1967 (s 5); it
contains restrictions against the receipt of consideration by developers (s 6); it
contains a limitation of occupation of land to which housing interests as
defined in the Act relate (s 7); it prescribes what the consequences of
contracts which are void or are cancelled would be (s 8) and what relief a
court may grant in respect of contracts (s 9); it provides for the granting of
exemptions from the operation of the Act by the Minister concerned (s 10);
and it prescribes what regulations may be made by the Minister (s 11).

[29] The only provisions of the Retired Persons Act which are relevant in
respect of the management of the FGR Scheme as opposed to the contracts
for the alienation of a housing interest in respect of the scheme and the
receipt of consideration by a developer are therefore the provisions in respect

of a facility for the care of debilitated persons, the provision containing a
limitation to the occupation of land to which housing interests relate and the
provision relating to the granting of exemptions. In the case of the FGR
Scheme no facility is to be maintained for the care of debilitated persons. It
follows that the statement in the amended rule 1 that the Retired Persons Act
is applicable means no more than that sections 7 and 10 of that Act are
applicable to the scheme. If s 7 is applicable it follows that s 10, which
authorises the Minister to grant an exemption from the operation of any
provision of the Act, is applicable. In the result it remains to determine only
whether s 7 of the Act is applicable to the FGR Scheme.

[30] Section 7 reads as follows:
‘7(1)
After a housing interest has been transferred to or has otherwise been vested
in a person by virtue of a contract, no person other than a retired person or the
spouse of a retired person may occupy the land to which that housing interest
relates, except with the written consent of all the holders of housing interests in the
housing development scheme concerned.’

[31] A retired person is defined as a person who is 50 years of age or older.
It is the applicability of the injunction in s 7 that ‘no person other than a retired
person or the spouse of a retired person may occupy the land to which that
housing interest relates’ which is the real bone of contention between the
parties, hence the appellants’ objection to the definition of aftree-oord in the
amended rule 2(d) namely: ‘`n behuisingsontwikkelingskema vir afgetrede
persone vir die huisvesting van inwoners met `n minimum ouderdom van 50
jaar elk of in geval van `n egpaar as inwoners moet een van die gades ten tye
van okkupasie minstens 50 jaar oud wees’.

[32] The injunction in s 7 is applicable after a housing interest in a housing
development scheme has been transferred to or has otherwise been vested in
a person by virtue of a contract. In terms of s 1 a housing interest in respect of
a housing development scheme means, amongst other things, any right to
claim transfer of the land to which the scheme relates. A housing
development scheme is defined as meaning, amongst other things, a scheme

in terms of which housing interests ie the right to claim transfer of land, are
alienated for occupation contemplated in section 7 pursuant to or in
connection with a development scheme; a development scheme means a
development scheme as defined in section 1(1) of the Sectional Titles Act 95
of 1986; and occupation contemplated in s 7 means occupation by retired
persons or the spouses of retired persons.

[33] ‘Contract’ is defined in s 1 as meaning ‘a document in terms of which a
housing interest is alienated to a retired person . . .’. Like all the other
definitions in s 1 the definition is qualified by the introductory phrase ‘unless
the context indicates otherwise’. In the case of s 7 the context does indicate
otherwise. If the contract referred to in the section was intended to be a
contract with a retired person the section would not have read ‘after a housing
interest has been transferred to . . . a person by virtue of a contract’ it would
have read ‘after a housing interest has been transferred to . . . a retired
person’. More so in the light of the fact that in the very same section reference
is made to a ‘retired person’. Compare in this regard s 2(1) which provides
that ‘no alienation of a housing interest to a retired person shall . . . be of any
force or effect, unless it is contained in a contract . . .’.  Moreover, if ‘contract’
in s 7 were to be interpreted to mean a document in terms of which a housing
interest is alienated to a retired person it would mean that in the case of an
alienation of a housing interest to a company or a trust for occupation
contemplated in s 7 in connection with a sectional title development scheme
ie a housing development scheme, the section would not apply. That could in
my view not have been the intention of the legislature.

[34] The members of the respondent obtained ownership of units in the
FGR Scheme ie in a development scheme in terms of contracts subject to the
same terms and conditions. One of the terms of the contracts was that in the
case of a single occupier the minimum age of the occupier had to be 50 years
and in the case of married occupiers one of the spouses had to be a minimum
of 50 years of age. The FGR Scheme is therefore a housing development
scheme as defined in the Retired Persons Act and the transfer of the units in
the scheme constituted the transfer of housing interests by virtue of a

contract. It follows that in terms of s 7 ‘no person other than a retired person
or the spouse of a retired person may occupy the land to which the
transferred housing interests relate’.

[35] For these reasons I conclude that the Retired Persons Act is applicable
to the FGR Scheme as stated in the amended rule 1 and that the appellants’
property rights or powers as members were not adversely affected by the
amendment.

_________________
P E STREICHER
JUDGE OF APPEAL

APPEARANCES:

For Appellant:
J G Naudé

Instructed by:
E Y Stuart Attorneys Incorporated, Pretoria

McIntyre & van Der Post, Bloemfontein

For Respondent:
M Helberg SC

Instructed by:
Bertus Roux Attorneys Incorporated, Pretoria

Du Toit Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

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.

* * *
According to a decision of the Supreme Court of Appeal a bitter dispute amongst the
members of a sectional title development in Faerie Glen, Pretoria, turned out to be no dispute
at all. Two of 150 unit owners in the Faerie Glen Renaissance Scheme opposed the body
corporate in an application to court to amend the management rules of the scheme. The
amendment granted to the body corporate by the Pretoria High Court and appealed by the
two owners was to expressly include in the management rules a statement that the Housing
Development Schemes for Retired Persons Act 65 of 1988 is applicable to the sectional title
development called the Faerie Glen Renaissance Scheme. The contention of the two
appealing owners was that the said Act was not applicable and to enforce it by inclusion in
the management rules would adversely affect the proprietary rights of the owners of units in
the scheme as it restricts occupation of the units to persons 50 years of age and older.

The Supreme Court of Appeal found that the Housing Development Schemes for Retired
Persons Act undoubtedly applies to the Faerie Glen Renaissance Scheme since its inception
and that an amendment to the management rules to reflect that state of affairs would serve the
interests of existing and prospective owners of units in the scheme.