Body Corporate of Greenacres v Greenacres Unit 17 CC (521/06) [2007] ZASCA 152; [2007] SCA 152 (RSA); [2008] 1 All SA 421 (SCA); 2008 (3) SA 167 (SCA) (28 November 2007) per Cloete JA.

[9] It was submitted on behalf of the body corporate that because of the express wording of the saving provision at issue (‘may be obtained’) the meaning to be given to the saving provision should extend also to relief that may (not only must) be sought from a court. That was the approach of the court a quo, which reasoned:

[T]he saving provision has to be read to exclude interdictory relief, urgent relief and any other relief which may be required or obtained from a court having jurisdiction. Other relief obtains practical content if read with section 37(2) which empowers a body corporate to recover levies from an owner by way of action in a court of competent jurisdiction. The recovery of levies is therefore relief which may be required or obtained from a court having jurisdiction and would fall within the ambit of the saving provision of rule 71(1).’

Section 37(2) provides:

Any contributions levied under any provision of subsection (1)13, shall be due and payable on the passing of a resolution to that effect by the trustees of the body corporate, and may be recovered by the body corporate by action in any court (including any magistrate’s court) of competent jurisdiction from the persons who were owners of units at the time when such resolution was passed.’

The submission on behalf of the body corporate was that rule 71 (which makes arbitration compulsory) cannot contradict s 37(2) (which permits an action in a court) because a regulation which is inconsistent with the statute under which it was made, is invalid under the Constitution according to the doctrine of legality.14 But properly understood, the rule and the section deal with two different situations. In order for the rule to operate, there must be a dispute. Absent a dispute ─ for example, where an owner ignores a demand for payment of levies or simply refuses, without more, to pay them ─ there can be no arbitration, as there is nothing for an arbitrator to determine; and the body corporate is entitled to institute a court action in terms of s 37(2) for recovery of the levies. It was submitted on behalf of the body corporate that this would give rise to an anomaly as an owner might raise a dispute in the court proceedings and then require arbitration.17 But such a situation frequently arises in the case of consensual arbitrations. What happens is that the court proceedings are stayed, the dispute goes to arbitration and, if determined in favour of the claimant, the consequent arbitral award can be made an order of court to enable the claimant to execute against the respondent. The whole purpose of rule 71 is to provide an expeditious and inexpensive method of determining disputes and the operative part of the rule is formulated in wide terms, as I have already pointed out. I see no reason why a dispute as to the liability of an owner to pay levies should be excluded from its operation and there is in my view no basis to do so.

[10] For the sake of completeness I shall deal also with the argument advanced on behalf of the body corporate. It was that the saving provision should be read as being limited to an interdict, and other relief in connection with the interdict, granted as a matter of urgency. This submission was influenced by what Prof Butler has suggested in an article, namely:

The reference to “other relief” should clearly not be taken literally and should be restricted to urgent relief similar to an interdict which is directed at preventing serious prejudice to one party pending the arbitrator’s award or to ensuring that a party will still be in a position to comply with the award.’

Cleaver J (D Potgieter AJ concurring) in his unreported judgment in Balmoral Heights No 39 BK v The Trustees for the Time Being of the Balmoral Heights Body Coporate was inclined to Prof Butler’s view, but did not come to a definite conclusion. With respect, I see no reason to confine the saving provisions in rule 71 to urgent relief, or to relief granted in connection with or similar to an interdict. The phrase ‘or other relief’ is used in contradistinction both to an interdict and to urgent relief; ‘other’ does not mean ‘similar’; and the relief excluded may be neither urgent nor dependent on an interdict being granted.

[11] I therefore conclude that the arbitration provisions prescribed by rule 71 are applicable to disputes described in sub-rule (1) between the parties there referred to, save where an interdict or any form of urgent relief is required, and save where an arbitrator is not competent to grant the relief sought. It follows that the arbitrator was correct in determining that the dispute between the Body Corporate and the owner was arbitrable and the court a quo was incorrect in finding the contrary.