Real Estate Investor Magazine South Africa August 2013 | Page 35
RESIDENTIAL
T he que st ion whet her a rbit r at ion is
compulsory under management rule 71 was left
open in Greenacres. The issue in that case was
whether a dispute as to the liability of an owner
to pay levies is excluded from the operation of
the rule. This court held that it is not excluded
and that it is arbitrable.
In the case of Body Corporate Pinewood
Park v Dellis 2013 (1) SA 296, the respondent
was the registered owner of Sectional Title
Unit 7 (the property) in the Sectional Title
Development Scheme known as Pinewood Park
No 202 (the scheme). The property was situated
in Pinetown, KwaZulu-Natal. As owner of
the property the respondent was obliged, in
terms of s 44(1) (b) of the Act, to pay levies in
respect of the property to the applicant, the
body corporate, which managed the scheme.
For convenience I shall refer to the applicant as
‘the body corporate’ and to the respondent as
‘the owner’.
On 2 November 2006 the body corporate
issued summons aga inst the ow ner for
pay ment of a rrea r lev ies in the sum of
R123 101.00, which the owner had allegedly
failed to pay ‘despite same being due, owing
and payable’ to the body corporate. The body
corporate also sought orders for payment of
interest on the amount claimed at a rate of two
percent (2%) calculated from 1 August 2006
and for costs of suit on the scale as between
attorney and client.
The owner admitted in his defence that he was
obliged to pay levies ‘imposed in accordance
with the Act, as read with the rules governing
the Scheme’, but denied he was obliged to
pay the amount claimed. He pleaded further
that any entitlement to claim the levies that
had arisen more than three years prior to the
institution of this action had prescribed and
that the body corporate had from time to time
appropriated payments received from him
towards debits which were unauthorised and
to which the body corporate was not entitled.
He was entitled to be credited on his account
with the payments, which were previously
appropriated towards unauthorised debits.
At the pre-trial hearing, the owner’s legal
representative contended that the jurisdiction
of the High court to determine the claim was
ousted by the judgment in the Greenacres case,
referred to above, which, in the owner’s view,
compelled the resolution of the body corporate’s
claim to be determined by arbitration.
The court resolved that only if the disputing
parties consented to arbitration at the time
of the dispute, could a dispute be referred to
arbitration and in addition, that the provisions
of the Act and the regulations did not prescribe
an arbitration procedure for inclusion in the
rules; and the management rules were not
an Act of Parliament that could exclude the
operation of the Arbitration Act.
It is not the object of this article to comment
on the merits of the parties consenting to
Arbitration in disputed matters or taking
the disputes to court. It is suffice to state that
it is the writer’s view, that given the time
it takes to obtain a trial date today and the
fact that there are arbitrators who specialise
in Sectional Title disputes, it is generally
far better to refer the disputes (particularly
complicated disputes) to arbitration.
RESOURCES
Ivan Zartz Attorneys