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2023
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[2023] ZAGPJHC 1153
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Body Corporate Ashwood Manor v Macgregor (027545/2023) [2023] ZAGPJHC 1153 (13 October 2023)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO:
027545/2023
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
NOT REVISED
13.10.23
In
the matter between:
BODY
CORPORATE ASHWOOD MANOR
Applicant
And
ROBERT
CLARK MACGREGOR
Respondent
REASONS
MANOIM
J:
[1]
The applicant in this matter has applied to me under Uniform
Rule 49(1)(c) for reasons for an order I granted on 31 August 2023
when I heard the matter on the unopposed roll.
[2] In terms of that
rule:
“
When in giving
an order the court declares that the reasons for the order will be
furnished to any of the parties on application,
such application
shall be delivered within 10 days after the date of the order.
”
[1]
[3] The applicant brought
this request on 20 September 2023 and thus outside of the time period
provided by the rule. There is a
good reason for this time period
particularly when it concerns matters on unopposed motion rolls which
are heavily burdened. Ordinarily
I explain in court
ex tempore
why I am not granting some form of relief sought. Due to the time
delay I cannot recall if I gave such an undertaking, but I will
give
the applicant the benefit of the doubt that I may have.
[4] Moreover, despite the
lateness of this request, I will give my reasons in respect of the
relief I did not grant. I do so as
the Body Corporate has an interest
in what its rights are vis a vis non-paying members. I will in these
reasons confine myself
to the prayer I did not grant, as I assume
that is the only issue of interest now to the applicant.
[5] The matter concerned
a body corporate’s attempts to recover
to
recover arrears from one of its members, the respondent in this
matter, who owns a section in Ashwood Manor, a sectional title
scheme, and in addition to disconnect the respondent’s
electricity supply. Amongst the arrear amounts were charges for
unpaid
electricity which became a cost the remaining members had to
incur.
[6]
On
the day the matter was heard only the applicant appeared, represented
by counsel. I granted three of the prayers sought; namely
payment of
the outstanding arrears, interest on that amount and costs on the
terms sought by the applicant.
[7]
However,
I did not grant the disconnection prayer which had been formulated as
follows:
“
3.
In the event
that the Respondent does not effect payment as per paragraph 1 and 2
within 10 days of granting of this order, the
Applicant is authorised
to engage the services of an electrician at a reasonable fee,
registered with the Electrical Contractors
Association of South
Africa, in order to disconnect the electricity supply to the
Respondent’s section being: section[…],
Holkam Road,
Paulshof, Ext 52, Gauteng. The electricity supply shall remain
disconnected until payment of the aforesaid amount
has been
effected.”
[8] The reason for this
is that no legal power was advanced by the applicant to grant such a
form of relief to a private body. In
this regard I have followed the
reasoning of Wilson J in
Lion Ridge Body Corporate v Alexander and
Others
(17074/2022; 18106/2022; 19220/2022) [2022] ZAGPJHC 666
(21 September 2022).
[9] In that matter Wilson
J held:
“
Neither the
Sectional Titles Act nor the standard Management and Conduct Rules
promulgated under it empower a body corporate to
interfere with a
member’s utility supply, and Lion Ridge does not allege any
other common law or statutory power to do so.
It follows that Lion
Ridge has not identified the source of its alleged right to
disconnect or limit the respondents’ utilities.
Critically,
Lion Ridge does not allege that it has adopted a specific rule, in
terms of section 10 of the Act or section 6 of the
Regulations, that
empowers it to disconnect its members’ utilities to recover
outstanding levies
.”
[2]
[10] This case is on all
fours with that matter, and I do not consider that case to have been
incorrectly decided. It follows that
this form of relief was not
competent and hence I could not grant it. Whilst this may
understandably be a frustration to the body
corporate and its
members, their remedy is to adopt a rule to this effect.
N. MANOIM
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
JOHNANNESBURG
Date of Reasons: 13
October 2023
Appearances:
Counsel for the
Applicant:
S Mchunu
Instructed by.
Biccari Bollo Mariano Inc
[1]
Rule 49(1)(c).
[2]
At paragraph 7.