Justice Masipa refused to grant leave to appeal against the earlier judgment.  See Owners adversely affected: Meaning in s 32(4) of Sectional Titles Act.

Extra Dimensions 121 (Pty) Ltd v Body Corporate of Marine Sands (9015/2014) [2016] ZAKZDHC 32 (26 August 2016) per Masipa J.

Excerpts without footnotes

The Merits

[11]      Ms Mills submitted that the judgment in paragraph 37 refers to the correct authority of Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) and Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) which stresses the use of ordinary grammar and syntax of words and phrases.  The provision to s 32(4) of the Sectional Titles Act, 1986 required that an owner adversely affected by a decision of the body corporate to make rules attached to the vote or to the liability thereof, such owner must provide written consent.  It was common cause that the applicant did not consent.

. . . . .

[14]      Ms Mills argued that the Act provides for precisely that which the judgment says is absurd.  In terms of the judgment, the Applicant will have to pay more than before the amendment despite not having consented to this as required by the Act.  The judgment states that the Applicant now has to pay for what he benefits from.  To interpret adversely affected, one must compare the position before and after the resolution.  The sole effect on the applicant is that instead of being liable for 4.3%, he became liable to 10.3% while the benefits he enjoys remained the same.  He is clearly adversely affected.

The judgment states further that it is unfair for one owner to benefit at the expenses of another  contrary to the Herald Investment Share Block (Pty) Ltd and others v Meer and others; Meer v Body Corporate of Belmont Arcade and another 2010 (6) SA 599 which states that liability to pay levies is not based on who benefits what.  While the judgment states that it could not be the intent of the legislature for one owner to benefit, the legislature intended precisely that by including the requirement of consent by an owner.

. . . . .

[16]      There was therefore a strong probability that another court would come to different conclusion.  The Thistledown decision by Theron J is bad law and conflicts with Wallis J in Herald Investments Share block.

[17]      Mr.  Boulle submitted that if the applicant’s argument was to be accepted, this would lead to an interpretation which is not fair and equitable.  He argued that the Applicant’s view departs from the interpretation approach in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

He submitted that the starting point in interpretation was the language, grammar and syntax.  Neither the ordinary meaning nor context dominate over the other.  The context includes the general ethos of the Sectional Title Act, 1986 to ensure a fair and equitable dispensation.  This cannot be achieved if the Applicant’s interpretation is followed.

[18]      He submitted that the question to ask is would another court come to a different conclusion.  In this regard, there are two judgment against the Applicant.  Two courts found rightly that one cannot petition against principles of fairness and equity which is the principal purpose of the 1986 act.  In addition to the two judgment, Lawsa is against the Applicant, PJ Badenhorst Silberberg & Schoeman’s The Law of Property 5 Ed at 19.5.1 is against the Applicant and Van der Merwe Sectional Titles, Share Blocks and Time-Sharing Vol.  1 para 4-10(1)-(3) support the approach in Thistledown.

. . . . .

[20]      In respect of the Applicant’s criticism of the judgment on the basis that it does not say what the meaning of ‘adversely affected’ is, Mr. Boulle submitted that there was no requirement to set out what falls within the meaning of ‘adversely affected’.  The requirement was to determine whether the Applicant was adversely affected which the judgment does.  The presumption that statutory provisions are not presumed to alter common law more than is necessary was followed in Nedbank and others v National Credit Regulator and another 2011 (3) SA 581 (SCA) para 38.

[21]      The Court in Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd 2016 (1) SA 518 (SCA) stated the law regarding principles of interpretation as follows:

‘[28] The passage cited from the judgment of Wallis JA in Endumeni summarises the state of the law as it was in 2012.  This court did not change the law, and it certainly did not introduce an objective approach in the sense argued by Novartis, which was to have regard only to the words on the paper.  That much was made clear in a subsequent judgment of Wallis JA in Bothma-Botha Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [2013] ZASCA 176; 2014 (2) SA 494 (SCA), paras 10 to 12 and in North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd [2013] ZASCA 76;2013 (5) SA 1 (SCA) paras 24 and 25.  A court must examine all the facts – the context – in order to determine what the parties intended.  And it must do that whether or not the words of the contract are ambiguous or lack clarity.  Words without context mean nothing.

[29] Referring to the earlier approach to interpretation adopted by this court in Coopers & Lybrand and others v Bryant [1995] ZASCA 64; 1995 (3) SA 761 (A) at 768A-E, where Joubert JA had drawn a distinction between background and surrounding circumstances, and held that only where there is an ambiguity in the language should a court look to surrounding circumstances, Wallis JA said (para 12 of Bothma-Botha):

“That summary is no longer consistent with the approach to interpretation now adopted by South African courts in relation to contracts or other documents, such as statutory instruments or patents.  While the starting point remains the words of the document, which are the only relevant medium through which the parties have expressed their contractual intentions, the process of interpretation does not stop at a perceived literal meaning of those words, but considers them in the light of all relevant and admissible context, including the circumstances in which the document came into being.  The former distinction between permissible background and surrounding circumstances, never very clear, has fallen away.  Interpretation is no longer a process that occurs in stages but is essentially one unitary exercise [a reference to a statement of Lord Clarke SCJ in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2012] Lloyd’s Rep 34 (SC) para 21].

[30] Lord Clarke in Rainy Sky in turn referred to a passage in Society of Lloyd’s v Robinson [1999] 1 All ER (Comm) at 545, 551 which I consider useful.

“Loyalty to the text of a commercial contract, instrument, or document read in its contextual setting is the paramount principle of interpretation.  But in the process of interpreting the meaning of the language of a commercial document the court ought generally to favour a commercially sensible construction.  The reason for this approach is that a commercial construction is likely to give effect to the intention of the parties.  Words ought therefore to be interpreted in the way in which the reasonable person would construe them.  And the reasonable commercial person can safely be assumed to be unimpressed with technical interpretations and undue emphasis on niceties of language.”’

[22]      There is therefore a plethora of relevant authority confirming that the correct interpretation was reached in determining this matter.  Therefore there is no possibility that another court would come to a different conclusion.