Page 44 - Litigating Land and Housing in South Africa: Lessons and Reflections

administrator held no meetings with the the owners owners during his tenure – thereby preventing owners’ participation or development in in in managing the the the governance of the the the scheme and he he he he had failed to adequately make a a a a a a a a a a a a case that justified extending his term of of office On 7 November 2018 the the matter was heard in the the Durban Regional Court The magistrate decided that due to to the the the the the complexity of the the the the the issues in in in the the the the the matter specif- ically relating to to the the the the the the the laws governing sectional titles the the the the the the the background of of the the the the the scheme the the the the the determination of of wheth- er er er the the the the the administrator had discharged his obligations in in in terms of of of the the the the the Sectional Titles Act as as well as as the the the the the voices of of of other residents of of of the the the the the Flamingo Court Building who were not party to these proceedings – that an individual with experience in in in in in the the the law governing sectional titles be appointed as as amicus curiae to assist the the the court court The court court order granted on 7 7 November 2018 extended the the rule rule nisi nisi until 7 7 May 2019 for argument to be be heard The rule rule nisi nisi provided that in in in in fin in this interim period the the admin- istrator would be retained until the the final determination of this application Interestingly the the court directed that the the Legal Practice Council nominate an attorney with expertise in in in in section- al titles schemes to to to to act as as amicus amicus curiae According to to to to the the the the the court court order the the the the the amicus amicus was directed to to to to provide a a a a a a a a written report to to to the the the the the the the the court court on the the the the the the the the views of of the the the the the the the the members of of of of the the the the the the the the body corporate as to to to to the the the the the the the the desirability or or or or or otherwise of of of the the the the the extension of of of the the the the the administrator’s term and to to to provide a a a a a a a a a a recommendation if merited The amicus was appointed to to to ascertain the the the views of those who were not party to to to to the the the the proceedings and to to to to assess the the the the administrator’s administrator’s progress in in in in in in rehabilitating the the the the the scheme over the the the the period of the the the the administrator’s administrator’s appointment In executing his duties the the the the the the amicus attempted to to engage with each off the the the the owners of of the the the the 200 units and ask them four questions:
c c c How well do they think the the the administrator is is running the the the scheme on a a a a a scale of 1 1 to to 5 5 with 1 1 being being extremely extremely poorly and 5 5 being being extremely extremely well?
d d d d How much would they like the the administrator administrator to to to stay on on on longer as administrator administrator on on on a a a a a a a a a a a scale of 1 1 to to 5 5 with 1 1 being being ‘not at at all’ and 5 5 being being ‘most definitely’?
The amicus’s interaction with owners was limited and he he he he reported that that those who owed arrears were not in in in favour of of the the the administrator but cautioned that that the the the perception of of the the the the the owners was not a a a a a a a a a a sound basis for determining whether the the the the administrator’s term term should be be extended The amicus concluded that the the the the number of of defaulting owners justified the the the presence of of an adminis- trator trator trator but that that the the the current administrator administrator was unsuitable The amicus found that that the the the administrator administrator had not met statutory requirements as set out in in the the the management rules of the the Sectional Title Schemes Management Act For example he he he did did not not not prepare a a a a a a a a a a a a 10 year maintenance plan did did not not not not have sufficient fidelity fund cover had had not not not not called an an an an an an annual general meeting and had had not not not been managing the books of of account in in in in a a a a a a a a a a a a a a a a a a manner which would allow for a a a a a a a a a a a a a a a a a reasonable level of of protection against fraud and misstatement The amicus also found that the the the finances of the the the scheme had deteriorated under the the the administrator’s control The Durban Regional Court held that in in in deciding this matter the the the the human rights of of the the the the residents of of the the the the Flamingo Court Body Corporate had to be upheld including in in in in the the the the the application application of of of the the the the Sectional Title Schemes Management Act The The application application for the the the the the extension of of of the the the the the term of of of the the the the administrator was dismissed The The court ordered the the the the residents of Flamingo Court to to to to convene two meetings with the the the LRC and to to to elect an an an interim committee to to to manage the the the affairs of the the the sectional title scheme The judgment focused on on the the the heart of of the the the problem of of the the the scheme: that for for a a a a a a a a Discount Benefit Scheme’s sectional title scheme scheme to to remain financially viable to to provide for for 44
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
a b Are they aware of the the the fact that the the the administrator is is currently acting as a a a a a a a a a a a court appointed administrator?
Have they seen the the the administrator on the the the property?