Mobile Telephone Networks (Pty) Ltd & another v Spilhaus Property Holdings (Pty) Ltd & others

The case concerned a sectional title scheme at Alphen Estate, Constantia. The respondents were owners of units in the residential precinct of the scheme, while the second appellant, Alphen Farm Estate in Constantia (Pty) Ltd, owned units in the historic precinct. Prior to the scheme’s establishment, MTN and Vodacom had installed 2G cellular antennae on a building situated on common property within the historic precinct. After subdivision, the trustees consented to an upgrade from 2G to 3G, and a disguised antenna (a fake chimney) and upgraded base station were installed. Subsequently, the City of Cape Town issued a notice that the installation contravened building regulations and lacked approved plans. The residential precinct owners withdrew their consent and objected, alleging zoning and title deed contraventions. They applied directly to the High Court for an order compelling MTN to remove the installation and requiring Alphen to cooperate. The High Court granted the relief. MTN and Alphen appealed, contending that the owners lacked locus standi and were required by the Sectional Titles Act 95 of 1986 to proceed via the body corporate and, if necessary, apply for the appointment of a curator ad litem.

The appeal was upheld with costs, including the costs of two counsel. The order of the Western Cape Division was set aside and substituted with an order dismissing the application with costs, including those of two counsel.

The judgment clarifies and reinforces the statutory scheme governing litigation in sectional title matters. It confirms that individual unit owners generally lack standing to litigate directly in respect of common property and must use the mechanism in section 41 (now section 9 of the Sectional Titles Schemes Management Act). The case underscores the central role of the body corporate and the curator ad litem procedure in resolving disputes affecting common property.