Lyons v Body Corporate of Skyways (3643/2016) [2016] ZAWCHC 94; 2016 (3) SA 405 (HC) (26 May 2016) per Mahomed AJ.
The high court granted a final order against the body corporate and costs on an attorney and own client basis. The body corporate was ordered to ensure that the elevators in and serving all the buildings under its control be repaired and rendered fully operational within three months.
“The Skyways Body Corporate’s purported internal remedial processes, involving Special General Meetings and a change in the composition of trustees, do not constitute alternative remedies available to the applicant that are remotely adequate in the circumstances. They do not provide adequate redress or offer an ordinary or reasonable remedy for the persistent marginalization of the rights of the applicant and vulnerable people. The respondent’s internal regulatory mechanisms have thus far failed the applicant and the law must therefore be the instrument that protects the rights of the vulnerable and marginalized. The elderly, infirm and disabled all enjoy the right to equal protection and benefit of the law as provided for in section 9(1) of the Constitution” [para [28]
Excerpts without footnotes
Introduction
[1] This is an urgent application for a final interdict compelling the respondent to take steps to ensure that all elevators situated in and serving the various buildings that comprise a sectional title scheme under the control of the respondent, are repaired and rendered operational forthwith.
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[5] Despite the resolutions by the respondent’s trustees, the change in service providers from Thyssenkrupp to Kone, and the various steps referred to above, the status quo remains. Currently there are five (5) of the elevators that are still inoperable, including the elevator in Shannon where the applicant owns a unit.
[6] It is common cause that in circumstances the elderly and infirm owners, residents and visitors to the buildings are forced to use the stairs. While the dispute remains unresolved, the situation has become untenable and continues to impact adversely upon the elderly and infirm in terms of their freedom of movement as well as on their health and wellbeing.
[7] The respondent, unsurprisingly, conceded in its papers that in the circumstances the applicant has established a clear right and that a so-called injury is actually being committed or reasonably apprehended with the resultant prejudice to the applicant. The owners of the units in the respondent body corporate are entitled to expect it to maintain the elevators and to keep them in a state of good and serviceable repair. In other words, the applicant has established a clear right not to be prejudiced by the inoperable lifts in the buildings. Moreover, the applicant suffered an injury or has a reasonable apprehension that his right will continue to be violated by the respondent. It is therefore common cause that the first two requisites for the grant of a final interdict have been met.
. . . . .
Applicable Law
[13] The applicant relied on section 37(1)(j), (o) and (r) of the Sectional Titles Act 95 of 1986 in order to establish a so-called “clear right” that the owners enjoy and the corresponding obligation of the respondent body corporate to maintain the elevators and keep them in a state of good and serviceable repair.
“37. Functions of bodies corporate. –
(1) A body corporate referred to in section 36 shall perform the functions entrusted to it by or under the Act or the rules, and such functions shall include –
…
(j) properly to maintain the common property (including elevators) and to keep it in a good and serviceable repair;
(o) to keep in a state of good and serviceable repair and properly maintain the plant, machinery, fixtures and fittings used in connection with the common property and sections;
…
(r) in general, to control, manage and administer the common property for the benefit of all owners.”
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Analysis
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[24] I now turn to assess whether there is an alternative legal remedy available to the applicant that is adequate in the circumstances for the grant of a final interdict. Mr Quixley suggested that the two internal remedies regulated by the body corporate itself are available to the applicant: the first is to hold a Special General Meeting of the members in order to obtain a directional mandate for the trustees to take specific steps with clear timeframes; and the second, involves changing the composition of the board of trustees i.e. disposing of the trustees and replacing them with new trustees who could do what is necessary in the circumstances.
[25] The internal remedies suggested will not provide adequate redress in the sense that, neither of these are legal remedies that engender prompt enforceable action, both are dependent upon a range of factors before an outcome emerges possibly with no clear timeframes, the outcome may not necessarily result in any tangible relief for the applicant and other vulnerable people using the buildings, and importantly they will not grant similar protection to the applicant.
[26] It is also reasonably conceivable that further delays will ensue from these internal remedies, compounding the pattern of delayed interventions that have already been established and causing the continued violation of the clear right and ongoing injury to the applicant. This court is particularly mindful of the fact that the applicant is an elderly gentleman with very good reason to bring this application on an urgent basis. The applicant’s right must be fulfilled and the injury needs to end, forthwith.
[27] The class of people impacted upon by the status quo is much broader than the elderly and infirm, in the sense that the upper floors in the buildings are rendered inaccessible to people using wheelchairs and other mobility assistance units or devices. They constitute the most vulnerable in our society and the inoperable elevators serve to create an unsustainable, undignified and intolerable situation for them. To ignore the applicant’s cries for urgent relief would render the vulnerable invisible and continually marginalized in these circumstances.
[28] The Skyways Body Corporate’s purported internal remedial processes, involving Special General Meetings and a change in the composition of trustees, do not constitute alternative remedies available to the applicant that are remotely adequate in the circumstances. They do not provide adequate redress or offer an ordinary or reasonable remedy for the persistent marginalization of the rights of the applicant and vulnerable people.
The respondent’s internal regulatory mechanisms have thus far failed the applicant and the law must therefore be the instrument that protects the rights of the vulnerable and marginalized. The elderly, infirm and disabled all enjoy the right to equal protection and benefit of the law as provided for in section 9(1) of the Constitution:
“Everyone is equal before the law and has the right to equal protection and benefit of the law.”