CONSTITUTIONAL COURT CASE NO.: 82/18 SCA CASE NO.: 208/2017 WCHC CASE NO.: 13621/2014
In the matter between:
SPILHAUS PROPERTY HOLDINGS (PTY) LTD Applicants AND 18 OTHERS
and
MTN MOBILE TELEPHONE NETWORKS
(PTY) LTD First Respondent
ALPHEN FARM ESTATE IN CONSTANTIA
(PTY) LTD Second Respondent
THE SECOND RESPONDENT’S PRACTICE NOTE
1. The Nature of the Proceedings
The Applicants apply for leave to appeal against the judgment of the Supreme Court of Appeal which had overturned the judgment of the Western Cape High Court, in terms of which the interdict sought by the Applicants had initially been granted.
2. The Issues to be Argued
The Second Respondent argues that the Applicants, being the co- owners of the common property in the Sectional Title Scheme in which the offending cell phone mast had been erected:
2.1. lacked locus standi to apply for an interdict to have the cell phone mast removed; and
2.2. had not satisfied the requirements for the granting of the interdict.
3. Relevant Portions of the Record
In the opinion of the Second Respondent’s counsel, it is unnecessary to read the following portions of the record:
3.1. Record Vol 1 p. 67-69, Annexures “H” and “I” to the Founding Affidavit;
3.2. Record Vols 1 and 2 p. 79-86 and 89-139, being portion of the annexures to Exhibit “J”, the Consent Use Application made on the Appellants’ behalf;
3.3. Record Vol 2 p. 142-150, correspondence being annexures
“L” to “P” to the Founding Affidavit;
3.4. Record Vol 2 p. 151-161, being annexures “Q”, “R” and “S”
to the Founding Affidavit;
3.5. Record Vol 2 p. 179 para 6 to p. 181 para 11, being irrelevant portions of the Answering Affidavit;
3.6. Record Vol 2 p. 186-191 para 14, which relates to Vodacom, the Applicants subsequently having reached a settlement with Vodacom;
3.7. Record Vol 3 p. 240-251, annexure “ANS 2”, the judgment of Schippers J, in relation to a Rule 30 application which is irrelevant to the appeal;
3.8. Record Vol 3 p. 256-273, annexures “ANS 7” and “ANS 8”, which relate to Vodacom;
3.9. Record Vol 3 p. 290 para 18 to p. 293 para 21, which relate to Vodacom;
3.10. Record Vols 3 and 4 p. 316-323, annexures “R” to “U” - correspondence;
3.11. Record Vol 4 p. 334-340, annexure “AA” - correspondence;
3.12. Record Vol 4 p. 366-367 paras 65 to 69, which relate to Vodacom;
3.13. Record Vol 4 p. 374-380 - annexures Reply 2-3 - correspondence;
3.14. Record Vol 4 p. 384-405 - Vodacom Answering Affidavit;
3.15. Record Vols 4 and 5 p. 406-455 - Replying Affidavit to Vodacom’s Answering Affidavit.
4. Estimated Duration of argument on behalf of the Second Respondent
One hour.
5. Summary of the Second Respondent’s Argument
5.1. The Second Respondent disputes that the application raises a constitutional matter or an arguable point of law of general public importance which ought to be considered by this Court.
5.2. In any event, the Second Respondent submits that the judgment of the Supreme Court of Appeal is soundly reasoned and should not be overturned on appeal to this Court. The Supreme Court of Appeal correctly concluded that the Applicants lacked locus standi to bring their application. In terms of Section 41 read with Section 36(6)
and 37(1) of the Sectional Titles Act, 95 of 1986, it is only the body corporate which had standing to bring this application.
5.3. Over and above the aforegoing, the Second Respondent, together with the Applicants, are co-owners in this Sectional Title Scheme. The cell phone mast was erected on the Scheme’s common property. As co-owners of that common property, the Applicants did not have the right to apply for an interdict in relation to their own property.
5.4. On the contrary, the Applicants were bound by the Scheme’s Management and Conduct Rules. As such, any relief to which they may have been entitled, was governed by those Rules and had to be dealt with in terms thereof. The Applicants had no right to disregard those Rules and proceed to court for an interdict instead.
5.5. Furthermore, the Trustees who represent the Applicants on the Scheme’s Body Corporate consented to the installation of the mast and the mast had been installed pursuant to the consent, and no grounds existed for that consent to be withdrawn.
5.6. Moreover, the Applicants are occupants of, and are not
“neighbours” to, their own Sectional Title Scheme. They do not fall within the category of persons who are referred to in the cases relied upon by the Applicants, such as BEF v Cape Town Municipality 1983 (2) SA 387 (CPD) and JDJ Properties v Umngeni Local Municipality 2013 (2) SA 395 (SCA).
5.7. Finally, the Applicants failed to satisfy the requisites for an interdict in that:
(a) no clear right was established by the Applicants. The Applicants’ rights flow from their ownership of their units in their Sectional Title Scheme and they are co- owners of the common property on which the mast about which they complain has been constructed;
(b) they have not established any injury to themselves as members of their Sectional Title Scheme which justifies the grant of an interdict;
(c) the Applicants had other remedies and in particular, the specific remedies prescribed in the Sectional Title Act
and the Management and/or Conduct Rules by which they were bound; and/or
(d) the Applicants failed to make out a case that the Court should exercise its discretion in their favour.
6. Authorities on which Particular Reliance will be Placed during Argument
6.1. City of Cape Town (CMC Administration) v Burbon-Leftley 2006 (3) SA 488 (SCA)
6.2. Wilkens v Voges 1994 (3) SA 130 (A)
6.3. Christie’s Law of Contract in South Africa 7th Ed by Bradfield
6.4. South African Forestry Co Limited v York Timbers Limited 2005 (3) SA 323 (SCA)
6.5. The Second Respondent will also refer to the cases upon which the Applicants place particular reliance in order to argue that they do not assist them.
R W F MACWILLIAM SC
Counsel for the Second Respondent
Chambers Cape Town
1 November 2018
