FILTERS:

Algoa Hof

4 October 2007

Judgement delivered 17 September 2007. Per Sandi, J.

The respondent, Estelle Scheepers converted her sectional title unit into a hairdressing salon after the chairperson of the body corporate told her that he and the other trustees had no objections. After running the business for a while (which meant building a separate entrance and putting in a water meter) the body corporate asked her to discontinue. She failed, however, to then get the consent of all the owners (15 of the 33) to ratify the conversion in terms of section 44 (1)(g) of the Sectional Titles Act 95 of 1986. An application to the magistrate to convert the residential unit to business was granted.

In coming to his conclusion, the magistrate found that the refusal in question was "unfairly prejudicial, unjust or inequitable" to the respondent. The order was set aside because, at [15]:
"In Cujê- Jakoby and Another v Kaschub and another 2007 (3) SA 345(C) at para 10 Traverso DJP held that "the word unfairly … should be taken to mean unreasonably." I agree with the interpretation of Traverso DJP in this regard. The prejudice suffered by the other owners far outweighs the prejudice that may be suffered by the respondent in this case. There is a good reason why the present scheme was established for residential purposes only. The unit owners acquired the units with this in mind. They were satisfied that the units would afford them the peace and tranquillity associated with a scheme of this nature. The body corporate is in control of the main entrance to the premises but not that created by the respondent. The security of the unit owners is of paramount importance and, among other things; the scheme was established for that purpose in mind. The separate entrance created by the respondent compromises the security of the owners. It impacts on the other unit owners and there is no evidence at least to show that the respondent's business will add value to the other units. On the contrary, the evidence suggests that the other unit owners will be affected adversely by the respondent's business.

Full judgement

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