Body Corporate of “The Avenues” v Hurwitz NO (217/2011) [2014] ZASCA 80; [2014] 4 All SA 1 (SCA) (29 May 2014) per Swain AJA.

[28] It is clear that the body corporate could not, by agreement with the developers, confer a right of extension of the scheme on the developers and thereby deprive individual owners of sections and holders of mortgage bonds of their statutory right to withhold their written consent. The body corporate in concluding this agreement and purporting to represent the interests of the owners of sections, could not compromise the statutory right of the owners to grant or withhold their consent to an extension of the scheme. In addition, because at the relevant time the developers must have still had a share in the common property, the body corporate could not have acquired the right of extension of the scheme in terms of s 18 of the 1971 Act, even if it had obtained all of the necessary written consents. Simply put, the body corporate had not acquired any right of extension at the time of the agreement with the developers, which it was thereby able to confer upon the developers in terms of that agreement.

[29] There is in addition a more fundamental challenge to the developers‟ argument that they acquired a right of extension in terms of rule 77. Section 27(1) of the 1971 Act provides as follows:

A building and the land on which it is situated shall as from the date of the establishment of the Body Corporate be controlled and managed, subject to the provisions of this Act, by means of rules.‟ (My emphasis.)

[30] To be „subject to‟ the 1971 Act, implies that any rule must not conflict with any provision of the Act. See Sentra-Oes Koöperatief Bpk v Commissioner for Inland Revenue [1995] ZASCA 9; 1995 (3) SA 197 (A) at 207B-G. If a rule is in conflict with the Act it would be ultra vires the powers of the body corporate to make such a rule. See CG Van der Merwe and DW Butler Sectional Titles Share Blocks and Time-Sharing 1 ed at 221 note 12. The conflict between the provisions of rule 77 and s 18(1) of the 1971 Act is readily apparent. Rule 77 was accordingly ultra vires the powers of the body corporate to pass this rule and it is accordingly unenforceable.