Consent in writing, not inferred

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Lessons from Greeff v Merriman Court about seeking early advice

Good decisions need a clear record of who approved what, under which authority and subject to which conditions. Greeff v Body Corporate of Merriman Court illustrates why assumed acceptance cannot replace a statutory approval process. The leadership lesson is practical: seek advice before committing money or beginning work, and preserve evidence of the decision.

In Greeff v Body Corporate of Merriman Court [2025] ZASCA 176, the appellant was the only owner who had not extended his unit. He sought to extend into common property over which he held an exclusive-use right. The High Court initially granted relief in 2021; the Full Court overturned that order in 2024, and the Supreme Court of Appeal dismissed his appeal in November 2025. The SCA found that the required approval had not been established. Informal discussions and later adoption of minutes did not cure that defect (paragraphs 3 and 27-31).

Our separate guide to sectional-title extensions and common property explains the legal approval process. Here, the focus is decision-making: how owners, businesses and advisers can avoid mistaking a developing conversation for a binding approval. Not all consent must be written; the required form depends on the applicable law and agreement.

How informal approval accumulates

The pattern often starts with a rough plan that attracts no immediate objection. Discussion then continues, correspondence refers to the proposal and people begin treating it as agreed. Yet absence of an objection does not establish that the correct decision-maker approved the final proposal in the legally required way. Before implementation, the decision and its authority need to be checked.

The practical distinction is between an expectation and an established right. Where a statute or agreement requires formal approval, gradual acquiescence cannot simply replace that process. Acting before the position is clear may lead to delay, expense or a remedial order. The outcome and available remedies depend on the facts; demolition or restoration is not automatic in every dispute.

Consider a hypothetical owner who proposes extending an end-terrace unit into adjacent common property. Neighbours are friendly and do not object to an early sketch. That is a reason to clarify the final proposal and required approvals, not to assume permission and begin building. A short pause for advice can expose a missing approval before substantial costs are incurred.

Document the decision, not the conduct around it

Friendly relationships do not remove the need for a clear decision record. Minutes can be important evidence of a valid resolution. But minutes that merely record discussion, or their later adoption, do not by themselves establish every approval the law requires. The question is what was validly decided, by whom, and with what scope.

The formal documentation of decisions provides an evidence trail, ensuring that the agreement itself is  documented, not the discussion about the intention or the plan or the architect’s sketches. The absence of robust evidence simply leaves the door open for a later dispute, when one party has inferred consent from the recorded discussions. Evidence protects owners, who may otherwise discover too late that the consent believed to be implied was never in fact granted. It protects body corporates, which need a clear record to enforce compliance and defend a decision if it is later challenged. Neither party benefits from ambiguity, whatever their preferred outcome.

Five checks for a reliable decision record

1. Authority: identify who may decide and the required approval threshold.
2. Scope: preserve the final proposal, drawings or terms actually considered.
3. Decision: record the date, process, votes or signatures and precise outcome.
4. Conditions: distinguish approval from outstanding consents, registrations or other formalities.
5. Evidence: retain the adopted record and supporting documents together; confirm changes through the appropriate process.

Early advice as cost control

Evidence discipline is usually easiest before a plan is implemented. Early advice can identify the decision-maker, approval process, supporting documents and outstanding conditions while changes remain manageable. It may reduce avoidable cost and conflict, although neither a low fee nor a dispute-free outcome can be guaranteed.

The adviser’s role: trust built by unwelcome advice given early

A useful adviser is willing to recommend a pause when authority or evidence is unclear. That may be unwelcome when a plan has momentum, but it gives the client an opportunity to assess the risk before committing further resources. Preventive advice and dispute resolution both have value; neither can promise that a challenge will never arise.

The discipline is the protection

The lesson from Greeff is not that paperwork guarantees permanence. It is that legally required approval cannot be replaced by assumption. A sound decision process establishes authority, records the actual decision and identifies what still needs to happen. That discipline strengthens the evidence and reduces avoidable uncertainty.

SD Law can help

At SD Law, we would rather help a client get a decision right at the outset than help them defend one after the fact. If you are an owner or a body corporate considering an alteration, extension or improvement affecting common property, or already facing a dispute over one, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Simon Dippenaar

Founder & Managing Partner, SD Law

Attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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