Abstract

In this case an elderly applicant, Mr Lyons, applied to the Western Cape High Court for an interdict obliging the body corporate to repair four of the five elevators in his sectional title scheme which had been out of commission for over two years. As it was common cause that the first two requirements for an interdict were satisfied, the court considered the argument of the body corporate regarding the third requirement, that there were other remedies available namely the convention of a special meeting to discuss the matter and the election of new trustees to compel the engaged elevator service providers to repair the lifts speedily. The court rejected this stance as an inefficient solution to the problem and granted the interdict compelling the body corporate to have the elevators repaired within a period of three months.

In the second part of the article, I have shown that Mr Lyons would have been in a better position if he sought relief after the coming into operation on 7 October 2016 of the Community Schemes Ombud Service Act 9 of 2011 (“CSOSA”) and the Sectional Titles Schemes Management Act 8 of 2011 (“STSMA”) and the related Regulations. The CSOSA pertinently makes specific orders available to applicants in the position of Mr Lyons, to force the body corporate to carry out maintenance and repair of the common property. The STSMA and related Regulations oblige the body corporate to ensure that the administrative and reserve funds of bodies corporate contain sufficient money for the maintenance and repair of elevators. In addition, the Regulations oblige the body corporate to prepare a 10-year maintenance, repair and replacement plan for major capital items (including escalators). This plan would ensure that escalators are always kept in good working condition.

Abstract

Section 62 of the Systems Act 32 of 2000 provides an effective tool for persons affected by a decision of a political office bearer. The court in Reader interpreted section 62(1) to mean that only the person(s) who are party to the application for approval from a political office bearer can appeal the decision that has been made. Whilst this finding is sound, it is not without any blemish. This is because of the paucity of reasoning proffered by the court. Thus, this article in part, suggests a rationale for this finding and for the most part, explored the implications of the Municipality of the City of Cape Town v Reader decision. It is my view that the court’s interpretation of section 62(1) failed to strike the balance between the rights of the aggrieved applicant and the so-called “third parties”. Section 62(1) permits “a person” who is affected by the decision of a political office bearer to appeal that decision. This must include all persons with a direct and substantial interest and not just the applicants for approval/permission from the political office bearer. Lastly, the court’s interpretation that section 62(3) “insulates” the decision of the political office bearer is incorrect. The correct approach is that of the separate judgment that held that section 62(3) does not protect the “decision” but rather, the “rights” that have “accrued” as a result of the impugned decision. Ultimately, it is my recommendation that section 62(3) must be amended to state that no rights accrue to an approval decision that is the subject of an appeal. This approach would avoid the perpetuation of an illegality in instances whereby a political office bearer has either colluded with an applicant or made a patently wrong decision to accumulate rights for the applicant. Ultimately, this article suggests that the correct approach to section 62 is that of O’Regan J in the Walele v The City of Cape Town case.

Abstract

Proving living customary law in court can be a challenging task. This is further exacerbated by the fact that although the foundational values of a customary practice may be uniform, practices may differ, with the result that courts may hear different versions based on the same norm. The court to date has merely opted for one version over another, without establishing whether a practice is observed as obligatory or as a social practice. The argument of this contribution is that although determining living customary law in court is mired in difficulties, the courts have exacerbated the problem by not interrogating whether certain practices are observed out of a sense of obligation. The courts also tend to find unconstitutionality, even when the customary practice in question may have solutions that are consistent with the Constitution. Although customary law is subject to the Constitution, this does not necessarily mean that the Constitution is the only solution to adjudicate disputes. It is further argued that courts exacerbate the problem further by accepting evidence that is submitted, without determining the motive behind such evidence given by witnesses.