Judicial redress against a body corporate of a sectional title scheme for failure to comply with its maintenance obligations before and after the new sectional title legislation came into operation: discussion of Lyons v The Body Corporate of Skyways 2016 6 SA 405 (WCC)

Author CG van der Merwe

ISSN: 1996-2193
Affiliations: BA LLB (UOFS) BA (Hons) BCL (Oxon) LLD (Unisa), Research Professor, Department of Private Law, University of Stellenbosch; Emeritus, Professor of Civil Law, University of Aberdeen
Source: Stellenbosch Law Review, Volume 30 Issue 3, 2019, p. 434 – 446


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.