'acquiring'
the common use area on which it is situated Bester has obtained full
title to the said area free of any consideration."

In
terms of the original plan for the section title scheme as a
whole three distinctive areas were provided for, namely;
buildings, common use areas and exclusive use
areas. As I understand this the buildings represent the
individual units over which the registered owners acquired genuine
individual ownership. The exclusive use areas are part of the
common property to which only certain unit holders have
unqualified access. On the original plan of the scheme these
were what was intended as gardens attached to each unit as
well as the original pergolas. The remaining area is
the common use area. It must be borne in mind that the term
"exclusive use area" is not a legal term but just a term
to describe a factual situation. (The legal term used in
later South African legislation is not applicable to
Namibia.) Thus the exclusive use areas of the present sectional
titles scheme are part of the common property that
have been set aside for exclusive use by certain unit
owners. These owners are not the sole owners of these areas
but own only an undivided share in these areas together with
the other unit owners.

The
complaints against the erection of the pergola can be placed into
two categories and that is also how the first respondent approached
the matter in argument, namely; the requisite consent was not
obtained to erect this pergola on common property and alternatively
as the erection of the pergola amounted to an extension of the
unit of Bester the requisite consent for this was also not obtained.

In
terms of section 32(d) of the Act an owner in a sectional title
scheme must "use and enjoy the common property in such a manner
as not unreasonably to interfere with the use and

enjoyment
thereof by other owners " In my view this

provision
is relevant to the present proceedings because of the locality of
the pergola in question. It is situated directly in front of
the garage of Bester. Thus no one else can park there in the
normal course of events as this will prevent Bester from gaining
access by car to and from his garage. This area is in fact an
exclusive use area despite not being officially demarcated as such
on the plan of the original scheme. The extremely slight
interference, if any, with pedestrian traffic seeing that the
pergola itself has no wall on the one side and no door to its
"entrance" is probably of such a nature that the
maxim
de minimus non curat lex
is applicable. Thus what happened was that the trustees were
asked permission to demarcate an area which was in fact an exclusive
use area in a similar fashion as the other exclusive use areas.

The
question which now arises is if the trustees could consent to this
or whether the consent of the other unit holders were necessary.
First respondent maintained that the consent of the other owners
were necessary as the erection of the pergola was not part of the
control, management and administration of the common areas which are
the duties of the trustees.

Section
27 of the Act makes provision for rules to govern the control and
management of sectional title developments. Section 27(2) insofar as
it is relevant to the present matter reads as follows:

"
(a) The rules shall provide for the control,
management, administration, use and enjoyment

of
the common property, and shall

include
-

(i)
the rules contained in Schedule 1 which shall not be added to,
amended or repeated except by unanimous resolution of the members of
the body corporate;

(ii)
the rules contained in Schedule 2 which may be added to, amended or
repeated by special resolution of the members of the body corporate;

(b)
Until such times as special rules are made

for
the control and management , the

rules
set forth in Schedules 1 and 2 shall,

be
in force "

In
terms of section 29 of the Act the body corporate is charged with
the duties assigned to it under the Act or the rules including the
duty to "control, manage and administer the common
property for the benefit of all owners."

(Section
29 (j)). It is common cause that Schedule 1 and 2 of the Act are the
rules applicable in the present matter. Rule 3 of Schedule 2 reads
as follows:

"No
duty shall be placed on any owner in regard to the provision of any
improvement on or to the common property unless a proposal to make
such improvement has been approved by a special resolution at a
general meeting of owners of sections."

By
the workings of the provisions of section 32 (d) of the Act the
area involved was a de facto
exclusive use area.

Thus
the further "use and enjoyment" (section 27(a)) of this
common property could be decided on by the trustees subject to Rule
3 of Schedule 2 which is what they did and adhered to. No duty was
placed on any other owner by this improvement (erection of the
pergola) to the common property. No special procedure or unanimous
consent is required by the Act for a decision of this nature and the
trustees were thus entitled to take such a decision (section 31). In
short the decision of the trustees did not change the nature of the
property or its use and neither did it effect that rights or duties
of any other unit holder detrimentally and thus fell within the
trustee's powers. The use was not in issue and the trustees in their
power to control, manage and administer this use was entitled to
permit Bester to erect a pergola which did nothing but demarcate the
area which use did not change or was affected at all.

The
next question to decide is if the erection of the pergola amounted
to an extension of Bester's unit. If this is the case it is clear
that the necessary consent was not obtained. Extensions are dealt
with in section 18 of the Act. In terms of this section if a
building "is to be extended in such a manner that an existing
section is to be added to" the written consent of all the other
owners as well as all the holders of sectional mortgage bonds and
registered real rights must be obtained.

In
my view the building belonging to Bester was not extended at all.
A structure in the nature of a lean-to was affixed to the existing
building. The existing building was not extended at all. Not all
additions amount to extensions. (Control
Body of Lelane Building NO 23 of 1976 v Van Heerden,
1992(4) SA 585 (SECLD). Section 18 stipulates from whom consent is
required. These are all persons whose existing rights may be
prejudiced by extensions to existing units. This also indicates the
nature of additions that will amount to an extension of an existing
building. Where the alteration or addition is such as not to affect
the rights of the persons mentioned in section 18 it is not likely
to be an extension as provided for in that section. (Lelane
case, supra,
at 590 D - H).

I
now briefly deal with the objections raised in first respondent's
affidavit and enumerated above and in the same order:

(i) Bester
did not obtain the unanimous consent of all the
unit holders but
did obtain the permission of the
trustees to erect the pergola
which was sufficient;

(ii) the
pergola was erected on an area specified as "common
use
area" in the plan indicating the lay-out of the
scheme. This
was in fact however not "common use" area
due to the
workings of section 32(d) of the Act but an
exclusive use area
which still forms part of the common
property as does all the
other areas described as
"exclusive use areas" on the
plan.

(iii)Bester
did not create a further "exclusive use area", he just
demarcated an existing one. Here it must again be kept in mind that
terminology and concepts from the South African legislation seems to
be used by first respondent which is not applicable in Namibia.

(iv) Bester
did not pay a purchase price or rental for the
area as he did not
purchase it and as he was entitled
to use it in any event I
cannot see how rental is of
any relevance. In any event the
approval by the
trustees did not require any payment from him.

(v) Whereas
the so-called "common use area" indicated on
the plan
was reduced the common property was not, nor
was the use, nor is
there any factual basis for the
averment in the papers that the
values of any of the
units were detrimentally affected.

(vi) Full
title to the area covered by the pergola can only
be obtained if
the necessary documentation in the Deeds
Registry is altered.
This was not done and the
allegation made in this regard is
absurd.

The
question of costs remain. The initial application related to the
question of security for the whole complex and whether a certain
type of security fence or spikes could be placed on walls
surrounding the walls of second respondent's unit. The only legal
question was what kind of authority the trustees needed to affect
this and whether they had the necessary authority. Not content with
limiting himself to this aspect the first respondent chose to vilify
the chairman of the trustees with vexatious attacks on his
character. Thus he accused Bester of being a racialist and
anti-Semite. First respondent apparently was exceptionally
distressed by this because:

"I
went into exile for 22 years to help the black people and when I
come back after independence I find that apartheid is as strong as
ever."

As
already stated whether Bester was or is indeed a racialist or
anti-semite and whether first respondent did go into exile to help
black people had nothing to do with the matter at hand and first
respondent's holier-than-thou cant in this regard was totally
uncalled for. To make matters worse this is repeated in the replying
affidavit. When he is not satisfied by rulings made by Bester as
chairman of the trustees he writes arrogant letters sarcastically
referring to Bester as "Judge Bester."

In
fact the picture that emerges of first respondent is not a very
attractive one but one of an unreasonable holier-than-thou whining
mother Grumpy. As second respondent associates herself with first
respondent she cannot escape the consequences of first respondent's
behaviour. In my view this is a proper case for a special order as
to costs. Indeed I indicated to first respondent at the hearing of
this application that I would consider not granting him an order for
costs even if I found in his favour. On a rereading of the papers I
am convinced that first respondent's behaviour in this matter was
nothing less than a nightmare come true for the trustees of
applicant and totally unworthy of a senior practitioner of this
Court and that as a mark of disapproval the respondents should be
ordered to pay the costs of this application on a legal practitioner
and client scale.

In
the result the counter-application by first and second respondents
are dismissed with costs on a legal practitioner and client scale.