Infinity IP (Pty) Ltd and Others v Body Corporate Of Living Moad and Others (2025/059253) [2025] ZAGPJHC 508 (26 May 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG
DIVISION, JOHANNESBURG
CASE NUMBER:
2025-059253
Reportable: Yes / NO
Circulate to Judges: Yes
/ NO
Circulate to Magistrates:
Yes / NO
Circulate to Regional
Megaistrates: Yes / NO
In the matter between:-
INFINITY
IP (PTY) LTD
1st
Applicant
SUPERINA,
LYNNE ADELLE
2nd
Applicant
MULLER,
DAYNE GEORGE
3rd
Applicant
HASSAN,
NASIR SHEIK HABIBULAH
4th
Applicant
and
THE
BODY CORPORATE OF LIVING MOAD
1st
Respondent
GOLDINER
NO, DAVID ANDREW
2nd
Respondent
KGAOSOE
RUFARO NO, VALERIE BENDICTIA 3rd
Respondent
MNCADI
NO, SENZO SYDNEY
4th
Respondent
LAUDEFIELD
(PTY) LTD
5th
Respondent
CHOKUREVA
NO, GEOFFREY
6th
Respondent
MOTSOENENG
NO, MAPHLAPANE
7th
Respondent
JUDGMENT
FMM REID J
Introduction:
[1]
The applicants approach this Court on an urgent basis for interim
relief to appoint Charles Beckenstrater as a currator ad litem for
the first respondent, with ancillary powers pending the outcome and
finalisation of the main application (Part B). Part
B entails
that Astrodon (Pty) Ltd be appointed as the administrator of the
first respondent and ancillary relief.
[2]
The urgent relief that is sought, as summarised in my own words and
not repeated verbatim from the notice of motion, are
the following:
2.1.
That, pending the main application (Part B, as set out above) one
Sheldon Terry, the managing director of
Astrodon (Pty) Ltd which is
the current managing agent of the body corporate, be appointed as the
provisional administrator for
the 1st respondent
(Infinity).
2.2.
Pending the outcome of the main application, Charles
Beckenstrates, a partner at Moodie and Robertson Attorneys, be
appointed as a provisional curator ad
litem to investigate and report to the
court. His investigation is to focus on whether certain actions taken
by the 2nd
to 4th
respondents (trustees) were improper or conflicted with their duties.
These duties include:
2.2.1. Entering
into an acknowledgment of debt with the 5th
respondent improperly or for personal gain.
2.2.2. Approving
renovations to common property against the rules and/or in their own
interest.
2.2.3. Allowing
the 5th
respondent to misuse its units, again possibly in conflict with the
body corporate’s rules or duties.
2.2.4. Managing
the body corporate in ways that unfairly benefit the fifth respondent
at the expense of other members.
2.2.5. Appointing
the 6th
to 8th
respondents in violation of the rules.
2.3.
The applicants seek that the curator
ad litem be granted the authority to
access records, inspect the property, and interview past and present
trustees or agents, and file a
report with the court within 35 days.
2.4. In
the meantime, the 5th
respondent should be barred from carrying out any construction work
unless it is approved by both the body corporate members and
the City
of Johannesburg.
[3]
The above illustrate the extent of discord there is in the operation
of the 1st applicant and 1st respondent.
Applicants’
case
[4]
In paragraph 7 of the founding affidavit the crux of the application
is stated as follows:
“7.
The trigger point for this application was a putative special general
meeting (“SGM”) called by the fourth respondent
on 14 April
2025. This SGM was called, improperly convened and conducted in a
manner so as to benefit the fifth respondent, which
is presently in
arrears to the body corporate in the amount of R1,145,547.89, to the
detriment of the remaining members of the
body corporate. Due to this
meeting and the respondents persistence in voting in trustees the
applicants seek that the present
managing agent be appointed as an
interim.”
[5]
The urgency of the application is set out in paragraph 137 which
reads as follows:
137. The applicant
prays that this application be treated as one of urgency in terms of
the Rule 6(12) of the Rules of this Honourable
Court for the
following reason:
137.1. I have outlined
above the significant danger and structural instability present at
the property, and the respondents have
escalated their conduct to
include writing off indebtedness owed by Laudefield in circumstances
where the named respondents are
all operating under a prima facie
conflict of interest.
137.2. Regarding the
unlawful building, as a multi-story building, the potential collapse
of the wall poses an immediate and severe
risk to the safety of all
commercial and residential occupants, who could suffer serious injury
or even loss of life. This imminent
threat underscores the urgent
need for intervention.
137.3. The body
corporate has been effectively taken over by the second to eighth
respondents, who are either directly controlled
by or acting as the
alter egos of Laudefield. Their actions serve only to benefit
Laudefield, to the clear detriment of all other
members of the body
corporate. This mismanagement exacerbates the existing safety
concerns, as it prioritises private gain over
the structural
integrity of the building and the well-being of its occupants. In
addition to this, the respondents’ conduct has
a direct impact on the
applicants who will ultimately be held liable for costs such as
municipal service charges arising from the
running of”
Laudefield’s business interests.
137.4. The potential
collapse of the structure is not only a danger to occupants but also
to neighbouring properties and pedestrians
in the vicinity;
137.5. The unlawful
actions of the respondents have left the body corporate financially
and administratively incapable of addressing
these urgent safety
concerns. Any delay in intervention would only exacerbate the risk;
137.6. The ongoing
unlawful construction breaches building regulations and safety
standards, further justifying immediate action
to prevent further
harm.
137.7. Additionally,
the body corporate lacks adequate insurance coverage. Should the
property sustain damage as a result of the
construction, the damage
would not be covered by insurance, leaving the body corporate
responsible for the repair costs and any
associated public liability;
137.8. In addition to
the above, it is evident that the respondents have gained control of
the management of the body corporate
in pursuit of the fifth
respondent’s elicit advantage. The applicants have the real fear that
the respondents will accelerate this
self-enrichment upon receipt of
this application which seeks only to properly investigate the conduct
of the respondents, the management
of the body corporate and put an
end to its unlawful conduct. This is proven in the respondents
communication — of 29 April 2025.
137.9. I am advised
that the opposed role of this Honourable Court is presently being
heard in January 2026, which means that the
respondents will remain
in ostensible control of the body corporate for more than a year when
this matter is heard. By this time,
it is likely that the financial
mismanagement of the body corporate will only worsen, and that the
applicants’ will lose their
tenants in the body corporate and,
potentially, their interest in the building.
137.10. The delay in
the hearing of applications of this nature is to the direct advantage
of litigants such as the respondents,
who will be able to utilise
numerous strategies in order to ensure that this matter’s ultimate
hearing is delayed. Through this
delay the applicants and the other
members will be mulcted in unlawful decisions taken by the
respondents which may have an impact
on their credit records, their
ability to utilise the property, and ultimately the stability of the
building on the property.
The applicants submit
that urgent intervention is required in order to put an end to the
respondents unlawful conduct, and to establish
a rational way forward
in this dispute.
137.11. I am advised
that an inability to obtain relief is often the cause of the
deterioration and dilapidation of buildings in
the inner-city, with
owners losing interest in vindicating their rights where the barrier
to entry imposes a material cost on them.
In these circumstances the
rule of law is ultimately undermined and those who are happy to abuse
process to secure their own advantage
are ultimately benefited.”
[6]
The applicants’ urgency is thus based on (a) discord between
the members of the body corporate, (b) a fear of financial
management
of the body corporate as it currently is being operated, and (c)
buildings being erected without the proper prior approval.
[7]
After considering the above, I find that:
7.1.
the nature of discord between managing members of a body corporate,
does not establish urgency.
7.2.
Neither does a fear of financial mismanagement of a body corporate.
7.3.
The buildings however, on the applicants version, can be hazardous to
members of the public.
[8]
The court will now proceed to have regard to the respondents’
version in relation to the unlawful buildings.
Respondents’
case
[9]
The respondents state that the planning of the buildings commenced
from approximately September 2024. On this ground
the
respondents state that, in as far as planning of the buildings were
to be regarded as urgent, the applicants have created its
own
urgency. On this score I agree.
[10]
More importantly, the respondents state that the building of any
structures has not commenced. The respondents
attach
photographs of the premises on which the buildings are to be erected,
which depicts that nothing has been built.
[11]
The respondent thus raises the factual question of whether the
buildings have been built, and if it has been built (on
the
applicants’ version) how developed it is. In any event,
the buildings or intended buildings could not be any hazard
to the
safety of any member of the public on the respondent’s version
and on the evidence presented to this Court.
Urgency
[12]
The locus classicus for urgent applications is the matter of
Luna Meubel Vervaardigers (EDMS) BPK v Makin and Another (t/a
Makin’s Furniture Manufacturers) [1977] 2 All SA 156 (W) in
which it is established that the applicants must demonstrate:
12.1.
that the matter is urgent;
12.2.
that substantial redress cannot be obtained in the ordinary course;
and
12.3.
that a delay would result in irreparable harm.
[13]
The applicants failed in proving the established principles.
[14]
In the result, the application is to be struck for want of urgency.
Costs
[15]
The general principle is that the successful party is entitled to its
costs.
[16]
I find no reason why this principle should not be applicable to this
application.
[17]
The applicants will thus be ordered to pay the respondents costs.
Order:
In
the premise I make the following order:
i) The application
is struck for want of urgency.
ii) The applicants
are to pay the costs of the respondent, individually and
collectively, one paying the other to be absolved,
on Scale B.
FMM REID
JUDGE OF THE HIGH
COURT
GAUTENG SOUTH DIVISION
JOHANNESBURG
DATE OF
HEARING:
15 MAY 2025
DATE OF
JUDGMENT:
26 MAY 2025
APPEARANCES:
FOR
APPLICANT:
ADV BUSHIMANI
INSTRUCTED
BY:
VERMAAK MARSHALL WELLBELOVED INC.
Third
Floor Office Suites 54
on
Bath Corner Tyrwhitt ROSEBANK
Tel:
011 447 3690
Fax:
086 644 4255
E-mail:
rose@vmw-inc.co.za
Ref:
Mr M.B. Wellbeloved/ros/MAT4276
FOR RESPONDENT:
ADV MUDAU
INSTRUCTED
BY:
NF MALEKA ATTORNEYS
RESPONDENTS’ ATTORNEY
1
Bentel Avenue, Eastlands Office Park
Regus
Building Boksburg
REF:
M0002/NM/CIV/2025
Email:
nthabi@nfmalekaattorneys.co.za
Source link