Judgment: Individual sectional title unit owners in whose interest a zoning scheme regulation was passed have the legal standing right to enforce it. It is this common law right that gives them legal standing.
 ZACC 16
Hearing Date: 07 February 2019
Judgement Date:24 April 2019
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 24 April 2019 the Constitutional Court handed down judgment in an application for leave to appeal against a judgment of the Supreme Court of Appeal (SCA) which overturned a judgment of the High Court of South Africa, Western Cape Division, Cape Town (High Court).
The 19 applicants (applicants) and second respondent (Alphen) are sectional title unit owners of a property which is divided into two sections: the historic and residential precincts. The historic precinct comprises a hotel and commercial units. Obviously, the residential precinct comprises residential units. The rooftop in the Mill Range Building (rooftop) is part of the common property managed by the body corporate. The Mill Range Building is in the historic precinct. The first respondent is MTN Mobile Telephone Networks (MTN).
In 1998 Alphen entered into a lease agreement with Vodacom (Pty) Limited and MTN to install a 2G network antenna (cell phone mast) on the rooftop. The cell phone mast was indeed installed. A few years later, the consent of the trustees of the residential precinct was sought and obtained for the upgrade of the network to 3G. On 1 November 2013 a new cell phone mast was installed on the rooftop inside a five metre high fake chimney that was made to conceal the cell phone mast. As part of the upgrade, MTN improved the base station equipment. These improvements were effected without the authorisation of the City of Cape Town (City). Having noticed the illegal structure the City issued notification that called upon Alphen to apply for approval, failing which Alphen would face prosecution. Before Alphen and MTN could lodge the application for approval, the residential precinct trustees withdrew their consent to the upgrade
The applicants who are individual owners of units in the residential precinct applied to the High Court to have MTN ordered to remove the new cell phone mast on the basis that it had been installed in breach of the City’s Zoning Scheme Regulations (regulations) and certain restrictive conditions on the title deed. MTN challenged the legal standing of the applicants, contending that only the body corporate had the requisite standing to institute proceedings in relation to the common property in terms of section 41 of the Sectional Titles Act (Act).
The High Court held that while the Act makes provision for the body corporate to institute proceedings, this did not preclude sectional title unit holders from doing so. Dissatisfied with the outcome, MTN and Alphen appealed to the SCA. The SCA found that section 41 of the Act applied to the matter and that the applicants had no standing. The SCA reasoned that under section 41 the only remedy available to owners was the appointment of a curator, provided the conditions imposed by the section were met.
Before the Constitutional Court, the applicants sought leave to appeal against the order of the SCA. In a unanimous judgment, penned by Jafta J, the Constitutional Court found that the Constitution obliges one to construe section 41 in a manner that promotes access to the courts. Section 41(1) requires that the contemplated proceedings must be in respect of matters mentioned in section 36(6) of the Act. The Court further found that the object of the section is not to determine the legal standing of individual owners. It held that the claim pursued by the applicants does not arise from section 36(6) of the Act. It held that the applicants instead seek to enforce a regulation that was passed in their interests – in an area where the scheme is situated.
The Constitutional Court reasoned that the SCA’s interpretation leads to absurd results and creates unequal “protection and benefit of the law” because, on the SCA’s construction of section 41, the applicants are deprived of the legal standing to institute proceedings to enforce compliance with regulations while the applicants’ neighbours outside the sectional title scheme would be entitled to institute proceedings to enforce compliance with the very same regulation. Furthermore, even those who are members of a neighbouring sectional title scheme would have no impediment against the exercise of the right to enforce compliance.
The Court held that the applicants’ standing flows from the fact that the conduct complained of is prohibited in their interests. The Court found that the High Court was thus correct in holding that the applicants have standing. The appeal was upheld.
My Broadband article:
Cape Town residents force MTN to remove cellphone tower
-The case was only related to the “legality of the mast” and had nothing to do with the potential health issues of cellphone towers
-MTN told MyBroadband it will comply with the decision of the Constitutional Court.
-The erection of cellphone towers in residential areas has been a point of contention for many residents in South Africa.
Image of the fake chimney with cell tower antenna
Image credit: Sunday Times
Credit: Sunday Times