Summary
A sectional title scheme consisted of six four-storey buildings that each contained an elevator. Five of the six elevators were out of order for two years.
The Applicant in this matter was an elderly owner of a sectional title unit of one of the aforesaid affected buildings. The Respondent was a body corporate of the sectional title scheme and was responsible for the repairs and maintenance of the elevators in terms of the Sectional Titles Act 95 of 1986 (“the Act”). Over the said years, the
Respondent engaged with two elevator companies to effect repairs, however the contract with the first company was cancelled due to non-performance and the second company never finalised communications to commence repairs.
While these elevators remained non-operational, the sectional title owners’ rights and interests were being infringed upon, specifically in respect of freedom of movement, dignity and equality. It was also particularly difficult for older and less mobile residents and visitors to access the upper floors of the buildings. The elderly Applicant then applied to court for a mandatory interdict to compel the Respondent to repair the elevators as a matter of urgency.
The Applicant needed to prove three things to obtain the interdict, namely that:
1. she had a clear right;
2. she had suffered harm or would reasonably suffer harm if the interdict was not granted; and
3. there were no other satisfactory remedies available.
The issue in dispute was the last requirement. The Respondent claimed that there were two satisfactory internal remedies to follow. The first remedy was to hold a special general meeting to request the repair of the elevators and the second remedy was to reconstitute the body corporate to effect the repairs.
The Applicant argued that, firstly, the Respondent would not fulfil the request in terms of the special general meeting based on its history of non-performing on obligations, and secondly, that no evidence indicated that a newly constituted body corporate would be successful in effecting the repairs to the elevators. Thus the argument was that there was no other effective remedy available to the Applicant other than to obtain the interdict.
Held
It was accepted in terms of Section 37 of the Act, the Applicant had a clear right to properly maintain common property in the building, such as the elevators, and to service the common property, which is for the benefit of all owners. It was further accepted that the Applicant was suffering harm and would reasonably continue to suffer harm if the interdict was not granted.
In deciding on the divergent views of the parties regarding the availability of satisfactory alternative remedies, the Court held that the third requirement of an interdict had been met. The Court held that internal remedies would cause more delays and thus are not satisfactory remedies available to the Applicant. Refusal to grant the interdict would adversely impact the Applicant because the elderly and less mobile residents would not be able to access the upper floors until such time as the repairs are effected.
The Respondent was ordered to repair the elevators within 3 months of the order being made.
Value
The case illustrates how the fulfilment of the aforesaid third requirement of an interdict is dependent on the circumstances of each case.
Further, in a matter where vulnerable members of society have been adversely affected, especially for a long period of time and in relation to their day-to-day living circumstances, the most time-efficient solution will ordinarily be the preferred remedy.
