Grundler NO v Body Corporate Flamingo of Lot 2371 Flamingo Heights (9408/2011)  ZAKZPHC 53 (22 August 2012) per Van Zýl J.
The High Court refused to extend the administrator’s term of appointment and ordered the applicant, in his personal capacity, to bear his own costs without being entitled to ‘indemnification for such costs by, or be entitled to recover such costs, or any portion thereof’, from the body corporate. The applicant was appointed as an administrator in terms of s 46 of the Sectional Titles Act 95 of 1986 on 22 October 2008. The intended duration of his appointment was 36 months. A rehabilitation plan was contemplated and his term could be extended. The applicant stated that the owners of the units did not have the ‘resources, experience, ability and tenacity to administer the affairs’ of the body corporate properly and was openly sceptical that the enduring problem of chronically unpaid levies could be overcome.
23. In the final analysis the question to be answered in these proceedings is whether it has been shown that the interests of the first respondent, and through it the interests of its unit owners generally, would best be served by the extension of the applicant’s administration, or by a reversion of control over its affairs to the unit owners of the first respondent.
24. In principle the Act is designed to encourage and promote self governance by unit owners. Section 46 of the Act, however, provides for the situation where, for whatever reasons, the self administration fails. It does so by way of making it possible for members of a select group of interested parties to move the Court for the appointment, replacement or removal of an administrator, where the circumstances justify it. Although the Court is empowered to render the appointment indefinite, this would clearly occur only in the most extreme circumstances. The Court is given a wide discretion by the section but, in my respectful view, where possible, such discretion should be exercised in a manner which would favour self administration, whenever possible.