THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 639/07

THE BODY CORPORATE OF THE SECTIONAL
TITLE SCHEME SEASCAPES
Appellant

and

CYNTHIA ANNE FORD
First Respondent
THE BODY CORPORATE OF THE SECTIONAL
TITLE SCHEME OCEAN VIEW HEIGHTS
Second Respondent
CONRAD PETER ERLAND HANSEN
Third Respondent
RUPERT TAILLEFER DU TOIT
Fourth Respondent
THE BODY CORPORATE OF THE SECTIONAL
TITLE SCHEME OLIVER COURT
Fifth Respondent
THE BODY CORPORATE OF THE SECTIONAL
TITLE SCHEME BEN ROMA
Sixth Respondent
THE REGISTRAR OF DEEDS
Seventh Respondent

Neutral citation:
Seascapes v Ford (639/07) [2008] ZASCA 109 (23 September 2008)

Coram:
STREICHER,
MTHIYANE,
MLAMBO,
MAYA
and
COMBRINCK JJA
Heard:
4 SEPTEMBER 2008
Delivered:
23 SEPTEMBER 2008
Summary:
Sectional Titles Act 95 of 1986 – special resolution – agreement in
writing by non-member, if not revoked upon becoming a member,
becomes agreement in writing by member – resolution interpreted so
as to give effect to intention of signatories.

_________________________________________________________________________

ORDER
_________________________________________________________________________

On appeal from: High Court, Cape Town (Uijs AJ sitting as court of first
instance)
The appeal is dismissed with costs.
____________________________________________________________

JUDGMENT
____________________________________________________________

STREICHER JA (MTHIYANE, MLAMBO, MAYA & COMBRINCK JJA
concurring)

[1] In terms of a notarial agreement concluded on 5 June 2003 and
registered on 4 July 2003 the appellant, being the body corporate in respect
of the Sectional Title Scheme Seascapes on Erf 1745 Sea Point East in
Cape Town, granted to the first to sixth respondents as owners of
neighbouring properties, the right to use parking bays in the sectional title
scheme. The appellant, contending that the notarial agreement was entered
into without its authority, applied to the Cape High Court (‘the court a
quo’) for the agreement to be declared invalid and for its registration to be
set aside. The application was dismissed but the court a quo granted leave
to the appellant to appeal to this court.

[2] As the proceedings were on notice of motion the court a quo
correctly held that the matter had to be decided on the basis of the facts
averred in the appellant’s affidavits and admitted by the respondents
together with the facts alleged by the respondents.

[3] The construction of the Seascapes Sectional Title Scheme as it now
stands required departures from the provisions of the applicable town
planning scheme. Neighbouring property owners objected to these
departures but eventually agreed to withdraw their objections in return for
an undertaking by the developer, Faircape Property Developers CC (‘the
developer’), to register servitudes over six parking bays in the development
in favour of neighbouring properties. As a result consent to the required
departures was obtained and the project was completed.

[4] In terms of s 11(1) of the Sectional Titles Act 95 of 1986 a developer
may, after approval of a draft sectional plan by the Surveyor–General,
apply to the registrar in charge of the deeds registry in which the land
comprised in the scheme is registered, for the opening of a sectional title
register in respect of the land and building in question, and for the
registration of the sectional plan. When making such an application a
developer may impose registrable conditions (s 11(2)). According to
Mr Vietri, a member of the developer, he was advised that the developer
could implement the agreement with the objectors by imposing registrable
conditions in terms of s 11(2) but that it would involve a further delay,
since documentation incorporating such conditions had to be amended and
resubmitted to the appropriate authorities. For this reason the developer
decided that it would be better to proceed with the registration of the
sectional plan and the opening of a sectional title register and to procure the
body corporate of the sectional title scheme, once established, to attend to
the registration of the servitudes.

[5] Upon registration of a sectional plan the building or buildings and
the land shown thereon are deemed to be divided into sections and common
property as shown on the sectional plan (s 13(1)). Separate ownership may
be acquired in such sections (s 2(b)). The common property is owned by

the owners of sections jointly in undivided shares proportionate to the
quotas of their respective sections as specified on the sectional plan
(s 16(1)). A section together with its undivided share in the common
property is defined as a unit (s 1). With effect from the date on which any
person other than the developer becomes an owner of a unit in a scheme
there is deemed to be established for that scheme a body corporate of which
the developer and such person are members, and every person who
thereafter becomes an owner of a unit in that scheme becomes a member of
that body corporate (s 36(1)).

[6] Section 29 makes provision for the burdening of the land shown on a
sectional plan with a servitude by the body corporate if directed to do so by
special resolution adopted by the owners. The section reads as follows:
‘29
(1)
The owners may by special resolution direct the body corporate-
(a)
to execute on their behalf a servitude or restrictive agreement burdening
the land shown on the relevant sectional plan;
(b)
to accept on their behalf a servitude or restrictive agreement benefiting the
said land.
(2)
Every such servitude or agreement shall be embodied in a notarial deed and shall
be registered by the registrar by noting such deed on the schedule of servitudes and
conditions referred to in section 11(3)(b) and on the title deeds of any party to such
servitude or restrictive agreement whose title deeds are registered in the land register.
(3)
. . .’

[7] A special resolution is defined as follows (s 1):
‘“special resolution” means, subject to subsection (2), a resolution passed by a majority
of not less than three-fourths of the votes (reckoned in value) and not less than three
fourths of the votes (reckoned in number) of members of a body corporate who are
present or represented by proxy or by a representative recognized by law at a general
meeting of which at least 30 days’ written notice, specifying the proposed resolution,
has been given, or a resolution agreed to in writing by at least 75% of all the members
of a body corporate (reckoned in number) and at least 75% of all such members

(reckoned in value) personally or by proxy or by a representative of any such member
recognized  by law: Provided . . .’
Only the alternative meaning of special resolution is of relevance in this
matter.

[8] The Seascapes sectional title register was opened on 24 December
2002. On the same day 18 of the 21 units in the scheme were transferred to
their respective purchasers. The other three remained the property of the
developer until they were subsequently transferred.

[9] Before the opening of the register and the transfer of the units to the
purchasers and in order to procure the registration of the servitudes agreed
to with the objectors, the developer had obtained, with the exception of
one, the signatures of the purchasers of the 18 units which were transferred
on 24 December 2002, to a document which purports to be the minutes of a
meeting.  The document reads as follows:
‘Minutes of a meeting of the members of the Body Corporate of the Sectional Title
Scheme Seascapes (still to be established) at which meeting the following special
resolution had been passed in terms of section 29 read together with the definition of
special resolution in section 1 of the Sectional Titles Act 95 of 1986.

Resolved that:
1.
The Body Corporate enter into a Notarial Agreement together with Cynthia Ann
Ford, Ocean View Heights Body Corporate SS32/1989, Conrad Peter Eland Hansen and
Rupert Taillefer du Toit, Oliver Court Body Corporate SS62/1987 and Ben Roma Body
Corporate SS206/1989 as per the draft agreement annexed hereto marked “A” and
initialled for purposes of identification.
2.
Michael Joseph Vietri, be and he is hereby duly authorised to sign all documents
and do all things necessary to give effect to the resolution in 1 above.’

(I shall refer to the document as ‘the minutes’ and to the content thereof as
‘the resolution’.)

After the opening of the sectional title register and the transfer of the 18
units on the same day, the owners who had signed the minutes constituted
more than 75% of all the members of the appellant (reckoned in number)
and more than 75% of all such members (reckoned in value).

[10] The purchasers who signed the minutes had been kept informed of
the nature of the construction delays caused by the objections and the
negotiations taking place and were aware that the developer was obliged to
grant servitude rights to six parking bays as a quid pro quo for obtaining
the necessary consents from the objectors.

[11] Subsequent to the opening of the sectional title register Vietri, who
had been authorised to give effect to the resolution, procured the
registration of a notarial agreement in terms of which the appellant -
(i)
granted to the first respondent, the second respondent, the third and
fourth respondents jointly and  the fifth respondent the right to use parking
bays 4, 2, 1 and 3 respectively;
(ii)
granted to the sixth respondent the right to use parking bays 5 and 6;
and
(iii)
granted rights of way to provide access to the parking bays.

[12] The appellant contends that the notarial agreement is invalid because
a special resolution directing it to execute the agreement as is required by
s 29 had not been adopted by the members of the appellant and because
even if the ‘minutes’ constituted a special resolution by the members of the
appellant, a different agreement to the one authorised had been entered
into.

[13] The respondents submitted that the resolution qualified as a special
resolution as defined in the alternative definition of special resolution ie

that part of the definition which requires the resolution to have been agreed
to in writing by at least 75% of the members reckoned in number and
value. The appellant on the other hand submitted that no resolution by
members could have been adopted as the minutes were signed at a time
when the signatories were not members of the appellant and could not have
been members of the appellant as the appellant was not in existence yet.

[14] It is true that the resolution was adopted by non-members but the
signatories, by signing the resolution, indicated that they agreed that the
appellant (which according to the resolution still had to be established)
should once it had been established enter into the draft agreement annexed
to the resolution. When the appellant was established and their units were
transferred to them, the signatories became members of the appellant. None
of them revoked his or her agreement (consent) in writing, it remained his
or her agreement in writing and having become a member it then
constituted an agreement in writing by a member. Consequently, after
transfer of their units to the purchasers, the resolution constituted a
resolution agreed to in writing by the requisite majority of members that
the appellant should enter into a notarial agreement as per the draft
agreement annexed to the minutes and that Vietri should give effect to the
agreement. That was still the position when the notarial agreement was
concluded on 5 June 2003.

[15] The appellant submitted that a special resolution as defined had
nevertheless not been adopted as there is no evidence that every member
had been given an opportunity to consider the resolution. He could
however not point to any indication in the Act that that was required for a
special resolution according to the alternative meaning of special
resolution. In the result I am satisfied that a special resolution as defined
had been adopted.

[16] There are differences between the draft agreement and the registered
notarial agreement. The appellant relies on the differences summarised as
follows in one of the affidavits filed by it:
‘(a)
The first respondent was given a servitude right to one parking bay. The third
and fourth respondents were jointly given a servitude right to one parking bay. The sixth
respondent was given a servitude right to two parking bays. In respect of each such
parking bay, the square metreage differs between the draft agreement and the notarial
agreement.
(b)
The notarial agreement records a servitude right of way both in favour of the
third and fourth respondents and in favour of the fifth respondent. Neither servitude is
contained in the draft agreement.
(c)
The notarial agreement makes provision for the second respondent to grant
reasonable access over its servitude parking bay to the owner of a certain exclusive use
store. That provision is not to be found in the draft agreement.’

The appellant submitted that assuming that Vietri was authorised to
conclude the draft agreement on behalf of the appellant he had no authority
to conclude an agreement which differed in these respects.

[17] The draft agreement in so far as it relates to the right to use a parking
bay to be given to the first respondent reads as follows:
‘Seascapes as owner of Erf 1745 hereby grants to Ford as owner of Erf 291 a servitude
parking bay 13 (Thirteen) square metres in extent, which servitude is depicted by the
figure abjk on Diagram No.          /2002 attached hereto.’
The corresponding provison in the notarial agreement reads as follows:
‘Seascapes hereby grants to Ford as owner of Erf 291 a servitude parking bay SB4 12
(Twelve) square metres in extent, which servitude is depicted by the figure R16, R19,
R20, R21, R22, R17 on Sheet 3 of Sectional Plan SG No. D.209/2003 which servitude
extends to a height of 61,35 metres above mean sea level.’
The wording in respect of the other parking bays is similar except
(i)
that the areas of the parking bays differ;

(ii) that no mention is made in the notarial agreement of the extension
above sea level in respect of the parking bays granted to the second
respondent and the sixth respondent; and
(iii) that the right of the second respondent is qualified in the notarial
agreement but not in the draft agreement. The qualification reads as
follows:
‘Ocean View Heights will grant reasonable access over servitude parking bay SB2 to
the owner of exclusive use area Store S3 depicted on Sheet 5 of Sectional Plan SG No.
D.209/2003.’

[18] According to the draft agreement one of the parking bays is 12 m² in
extent and all the others 13 m² whereas in terms of the notarial agreement
one of the parking bays is 15 m², another is 13 m² and the other four are 12
m² in extent. In the result the total area of the parking bays according to the
draft agreement is 77 m² and according to the notarial agreement 76 m².
The appellant did not place any reliance on the fact that the extension
above sea level is mentioned in respect of some of the parking bays in the
notarial agreement but not in respect of any of the parking bays in the draft
agreement.

[19] The respondents submitted that on a proper construction of the
resolution Vietri was authorised to enter into the notarial agreement on
behalf of the appellant. According to the draft agreement the servitudes are
depicted on a diagram annexed to the agreement. According to this diagram
all the parking bays are 5m long and 2.5m wide ie 12,5 m² in extent and
according to a note on the diagram parking bay 2 is approximately 12 m² in
extent and all the others are approximately 13 m² in extent. The question
thus arises whether on a proper interpretation of the resolution the
purchasers agreed that the area of the parking bays had to be exactly what
they are stated to be in the draft agreement or whether that area was only

intended to be an approximate area. The appellant submitted that the
former was the case and that the diagram could not be used to interpret the
draft agreement.

[20] What has to be determined is the ambit of the resolution ie what did
the signatories intend to agree to. Although the resolution was that the
appellant should enter into a notarial agreement as per the draft agreement
it is apparent from a reading of the draft agreement that the intention was
not that the notarial agreement was required to be in the exact same terms
as the draft agreement. According to the draft agreement the parking bays
are depicted by figures on ‘Diagram No.         /2002 attached hereto.’ The
diagram attached is not a final diagram. It is specifically stated that all data
on the diagram is approximate. It is therefore clear that the signatories must
have had in mind that a final diagram would be prepared in which the data
ie the location and area could differ from those indicated on the diagram
annexed. But could they have intended that the area according to the final
diagram should be exactly the area stated in the draft agreement? In my
view that could not have been the intention. It is quite clear from the
provisional diagram that the exact areas still had to be determined. It
follows that properly construed the areas stated in the draft agreement were
intended to be approximate and not exact.

[21] The provisional diagram also depicted a right of way in favour of
parking bays 1 to 4 and a right of way in favour of parking bays 5 and 6 (as
numbered on the provisional diagram). Those rights of way are
incorporated in the notarial agreement but in the draft agreement only the
rights of way in favour of parking bays 1 and 2 and parking bays 5 and 6
are mentioned. The omission from the draft agreement of the right of way
in favour of parking bays 3 and 4, which is exactly the same as the right of
way granted in respect of parking bays 1 and 2 and which is required in

order to gain access to the parking bays, is a patent error. The signatories
could not have intended to grant a right to use the parking bays without at
the same time granting a right of way to access these parking bays. Read
with the provisional diagram which is an annexure to the draft agreement I
am satisfied that the signatories intended to authorise the registration of the
right of way not only in respect of parking bays 1 and 2 but also in respect
of parking bays 3 and 4.

[22] Storeroom S3 is delineated on the sectional plan as an exclusive use
area. In order to make use of the storeroom access over parking bay 2 is
required. No express provision for such access is made in the draft
agreement but there can be no doubt that had the signatories been asked the
question they would have answered but naturally the servitude right to
parking bay 2 should be made subject to such access being granted to
whoever is entitled to the use of that exclusive use area. The signatories
therefore by implication directed the appellant to impose the qualification
to the servitude granted in respect of parking bay 2.

[23] It follows that the court a quo correctly dismissed the application and
that the appeal should be dismissed with costs.

__________________
P E STREICHER
JUDGE OF APPEAL

APPEARANCES:

For Appellant:
E Fagan

Instructed by

Bernadt Vukic Potash & Getz, Cape Town

Lovius-Block, Bloemfontein

For Respondent:
S P Rosenberg SC

Instructed by

Smith Tabata Buchanan Boyes, Cape Town

E G Cooper & Sons Inc, 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:
23 September 2008
Status:
Immediate

THE BODY CORPORATE OF THE SECTIONAL TITLE SCHEME
SEASCAPES v C A FORD & OTHERS

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.

* * *
The Supreme Court of Appeal today dismissed an appeal against a judgment of the Cape
High Court concerning an application by the appellant, being the body corporate of the
Sectional Title Scheme Seascapes, for a notarial agreement between it and owners of
neighbouring properties to be declared invalid.

The Sectional Title Scheme Seascapes is situated in Sea Point East, Cape Town. The
scheme, as it now stands, required departures from the provisions of the applicable town
planning scheme. Neighbouring property owners objected to these departures but
eventually agreed to withdraw their objections in return for an undertaking by the
developer, Faircape Property Developers CC, to register servitudes over six parking bays in

the development in favour of neighbouring properties. As a result consent to the required
departures was obtained and the project was completed.

In terms of the Sectional Titles Act the owners ie the members of a body corporate may by
special resolution direct the body corporate to execute on their behalf a notarial agreement
burdening the land shown on the relevant sectional plan with a servitude. A special
resolution may be adopted at a general meeting of the body corporate or may be agreed to
in writing by 75% in number and value of the members. Before they became members of
the body corporate, the requisite majority of the members, who were purchasers at the time,
and who were aware of the agreement with the objectors, agreed in writing to the
registration of servitudes in respect of six parking bays in favour of the neighbouring
property owners and authorised the developer to give effect to the resolution. Subsequent to
the opening of the sectional title register and to the purchasers who agreed to the resolution,
having become members of the appellant the developer procured the execution and
registration of the required notarial agreement.

However, the appellant thereupon applied for the notarial agreement to be declared invalid
on the ground that the developer did not have authority to enter into the agreement on
behalf of the appellant. It contended that non-members and not members had agreed in
writing to the registration of the servitudes. The SCA dismissed this submission and held
that by not having revoked their agreement in writing the agreement in writing of non-
members became the agreement in writing of members when the non-members became
members.

In terms of the resolution agreed to the developer was authorised to register a notarial
agreement as per a draft agreement annexed to the resolution. However, the notarial
agreement as registered differed in certain respects from the draft agreement. The appellant
submitted that assuming that the developer had been authorised to conclude the draft
agreement on behalf of the appellant it had no authority to conclude an agreement which
differed from the draft agreement. The SCA held that it is apparent from a reading of the
draft agreement that the intention was not that the notarial agreement should be in the exact

same terms as the draft agreement. It concluded that on a proper interpretation of the
resolution the developer had been authorised to enter into the notarial agreement.