Singh and Another v Mount Edgecombe Country Club Estate and Others (3962/2014, 1118/2014, 4375/2014) [2016] ZAKZDHC 2; [2016] 2 All SA 218 (KZD); 2016 (5) SA 134 (KZD) (4 February 2016)

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[2016] ZAKZDHC 2
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Singh and Another v Mount Edgecombe Country Club Estate and Others (3962/2014, 1118/2014, 4375/2014) [2016] ZAKZDHC 2; [2016] 2 All SA 218 (KZD); 2016 (5) SA 134 (KZD) (4 February 2016)

OFFICE
OF THE CHIEF JUSTICE
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE NO:
3962/2014
CASE NO:
1118/2014
CASE NO:
4375/2014
DATE: 04 FEBRUARY
2016
In
the matters between:
Niemesh
Singh
..................................................................................................................
First
Applicant
Munshurai
Madhanlal
Ramandh
...............................................................................
Second
Applicant
And
Mount
Edgecombe Country Club
Estate
...................................................................
First
Respondent
Management
Association 2 (RF) NPC
Minister
of
Transport
...............................................................................................
Second
Respondent
MEC
for the Department of Transport:
KZN
..........................................................
Third
Respondent
eThekwini
Municipality
............................................................................................
Fourth
Respondent
JUDGMENT
Delivered
on 4 February 2016
TOPPING
AJ
Introduction
[1]
I have before me three applications. A
theme running common to all three applications is a challenge to the
Conduct Rules for Residents
(“the conduct rules”) of the
Mount Edgecombe Country Club Estate Management Association 2 (RF)
(NPC), which is cited
as the First Respondent in the first
application and as the Respondent in the second and third. Mr Niemesh
Singh is the First Applicant
in the first application and the
Applicant in the second and third applications. For ease of
reference, I shall refer to Mr Singh
as the “Applicant”
and to the Mount Edgecombe Country Club Estate Management Association
2 (RF) (NPC) as the “Respondent”.
I shall refer to the
remaining parties as cited in the application papers concerned.
[2]
In the first application, which I shall
refer to as “the rules application”, the Applicant, along
with the Second Applicant,
seek an order declaring certain specified
rules of the conduct rules to be declared unlawful and to be regarded
as
pro non scripto
.
The Respondent has also instituted a counter application in which it
seeks an order declaring that it is entitled to suspend the
use of
the access cards issued to the Applicant, his invitees and members of
his family, together with the biometric access for
such persons, for
so long as certain fines issued to him pursuant to the conduct rules
have not been paid. In the second application,
which I shall refer to
as “the spoliation application”, the Applicant seeks
confirmation of a
rule nisi
issued by this court on the 1
st
of
February 2014 directing the Respondent to re-activate his access
cards and the biometric access of his family to the Mount Edgecombe

Country Club Estate 2 (“the estate”). Lastly, in the
third application, which I shall refer to as “the trespass

application”, the Applicant seeks an order directing the
Respondent to allow certain contractors engaged by him access to
the
estate and a further order restraining the Respondent, or any person
acting through or with its instructions, from entering
upon various
specified immovable properties within the estate.
[3]
By agreement between the parties all three
applications were placed before me and argued simultaneously.
Although it is agreed that
I should deal with all three applications
in one judgment, I was requested to deal with the merits of each
application separately.
Save for matters that are common to all three
applications, I shall structure this judgment accordingly. I shall
also ensure that
each application is considered in isolation and
anything that might be stated in one application will not be
considered in the
determination of any other.
Background
[4]
The estate is described in the founding
affidavit in the rules applications as consisting of in excess of 890
freehold and sectional
title residential developments. Besides the
freehold and sectional title properties, the estate also comprises of
extensive common
property, consisting of open areas, dams, ponds,
rivulets, water features, community facilities, roads and other
infrastructure.
The common facilities on the estate include the Mount
Edgecombe Country Club Golf Course 2, the clubhouse and a function
venue
which is utilised for conferences, corporate events, board
meetings and weddings. The estate also provides facilities for
various
sporting activities, including squash, tennis, fishing and
bowling. The entire estate is enclosed by a 2m high palisade fence,
topped with electrified security wiring. The estate has gated access
points which are controlled by guards. Some access points are
manned
on a 24-hour basis, 365 days a year. The estate is serviced by a
network of roads which are situated upon
erven
registered in the name of the Respondent. This much is confirmed by
the Respondent.
[5]
The Respondent, which is a non-profit
company duly registered in accordance with the provisions of the
Companies Act, No. 71 of 2008
, is an association of all the
homeowners on the estate and is the management association which
regulates the affairs of the estate.
[6]
In
terms of the standard contract concluded for the purchase of
immovable property within the estate, the purchaser, or his nominee,

is obliged to become a member of the Respondent and be subject to the
conditions set out in the Respondent’s memorandum of

incorporation.
[1]
In terms of
the Respondent’s memorandum of incorporation, in the event of a
unit being owned by a close corporation, company
or trust, such
entity shall nominate one natural person to be a member of the
Respondent.
[2]
Although there
was an initial challenge to the Applicants’
locus
standi
,
it is now common cause that both the Applicant and the Second
Applicant are the persons nominated to be members of the Respondent

by the legal entities owning the properties listed in the application
papers. It is therefore common cause that both the Applicant
and the
Second Applicant are residents and property owners (through various
companies, close corporations and trusts) within the
estate.
The
Rules Application: Case Number 3962/2014
[7]
As already mentioned above, the rules
application was instituted by the Applicant and the Second Applicant
against the Respondent.
The Minister of Transport, MEC for the
Department of Transport: KZN and the eThekwini Municipality, are
cited as the Second, Third
and Forth Respondents, respectively. No
relief is however sought against the Second to Fourth Respondents and
they are alleged
to have been cited merely to give them notice of the
application itself. They have, in any event, played no part therein.
[8]
The relief sought by the Applicants is that
certain specified rules of the conduct rules be declared unlawful and
be regarded as
pro non scripto
.
There was some initial confusion as to the nature of the relief
sought by the Applicants as the notice of motion referred to “
all
”
the conduct rules, but then made specific reference to certain
identified rules. This issue was however resolved by the
exchange of
affidavits between the parties, wherein the Applicant clarified in
his replying affidavit that only the rules identified
in the notice
of motion were being challenged. These rules are identified as being
rules 7.1.2 and 7.3.2, rules 2.1, 4.7 and 4.8.1
and rules 9.3.2,
9.4.1 and 9.4.3.
[9]
A
good starting point would be to analyse the relationship between the
Applicants and the Respondent. There is no dispute on the
papers that
the properties listed in the application were purchased in terms of a
standard sale agreement referred to above. As
already stated, in
terms of such agreement, the purchaser is obliged to become a member
of the Respondent and undertakes to be
subject to the conditions set
out in the Respondent’s memorandum of incorporation. This much
is common cause between the
parties. The purchaser also acknowledges
that the directors of the Respondent are entitled to lay down rules
regarding the administration
and governance of the estate which the
Respondent considers appropriate.
[3]
The Respondent’s memorandum of incorporation and the rules laid
down by its directors accordingly form part of the agreement
entered
into between it and its members.
[10]
It is evident therefore that an agreement
exists between the entities through which the Applicants claim to
have
locus standi
in these proceedings and the Respondent. In terms of that agreement
the Respondent is entitled to impose rules relevant to the
governance
and administration of the estate and such entities, and the
Applicants as their nominees, have agreed to be bound thereby.
The
relationship between the Applicants and the Respondent accordingly
has its foundation in contract and I am of the view that
it is this
contractual nature of the relationship between the parties that
should provide the framework in which this application
ought to be
decided.
[11]
This
view is reinforced by the recent judgment in
Abraham
v The Mount Edgecombe Country Club Estate Management Association Two
(RF) NPC
[4]
,
a case dealing with the Respondent’s conduct rules and a
challenge to the Respondent’s decision to refuse permission
for
a resident of the estate to keep a St Bernard dog. The court upheld
the argument that the contractual nature of the relationship
between
the Respondent and its members, and its members’ voluntary
choice of purchasing property, residing within the estate
and
subjecting themselves to its rules, provided the framework in which
the matter should be decided. Olsen J stated:
[5]
“
In
my view the location of this case within the field of contract is
correct.  By contract concluded between all the residents
and
the respondent, no dogs are allowed on the estate unless permission
is granted by the respondent. The power of the directors
to grant
permission is located in the contractual scheme; it has no other
origin or foundation. Whilst rule 5.1.9 reiterates that
local
authority laws relating to the keeping of dogs must be obeyed, the
special rules (for example with regard to the breeds and
sizes of
dogs), which the parties to the contract have agreed to superimpose
on municipal law, have no public law content and do
not involve the
exercise of public power or the performance of a public function.
The restrictions imposed by the rules are
private ones, entered into
voluntarily when electing to buy in the estate administered by the
respondent, rather than elsewhere;
presumably motivated inter alia by
the particular attractions which the estate offers by reason of the
controls imposed on it by
contract. In my view PAJA
[6]
finds no application in this case.
”
[12]
Any
consideration of whether the rules complained of by the Applicants
are unlawful and ought therefore to be regarded as
pro
non scripto
must entail an application of the principles laid down in various
leading judgments of the Supreme Court of Appeal. In
Sasfin
(Pty) Ltd v Beukes
[7]
it was stated that “[
our
]
common
law does not recognise agreements that are contrary to public
policy
”
.
In discussing the concept, it was stated that public policy “
is
an expression of ‘vague import’… and what the
requirements of public policy are must need often be a difficult
and
contentious matter
”
.
With reference to the various definitions that have been applied to
the concept, it was stated that “
an
act which is contrary to the interests of the community is said to be
an act contrary to public policy”
and
that
“
such
acts may also be regarded as contrary to the common law, and in some
cases contrary to the moral sense of the community
”
.
A contract against public policy has also been defined as “
one
stipulating performance which is not per se illegal or immoral but
one which the Courts, on grounds of experience, will not
enforce,
because performance will detrimentally affect the interests of the
community
”
.
It was then stated that “[
the
]
interests
of the community or the public are therefore of paramount importance
in relation to the concept of public policy. Agreements
which are
clearly inimical to the interests of the community, whether they are
contrary to law or morality, or run counter to social
or economic
expedience, will accordingly, on the grounds of public policy, not be
enforced
”
.
The court then went on to say that, although writers generally tend
to do so, it serves no useful purpose to classify contracts
into
those contrary to the common law, those against public policy and
those
contra
bonos mores
,
since the three expressions are interchangeable.
[13]
Accepting
what was stated in
Eastward
v Shepstone
[8]
the court
[9]
then went on to say
that:
“
[
no
]
court should therefore shrink from the
duty of declaring a contract contrary to public policy when the
occasion so demands. The
power to declare contracts contrary to
public policy should, however, be exercised sparingly and only in the
clearest of cases,
lest uncertainty as to the validity of contracts
result from an arbitrary and indiscriminate use of the power. One
must be careful
not to conclude that a contract is contrary to public
policy merely because its terms (or some of them) offend one's
individual
sense of propriety and fairness
”
,
and that
“
[
in
]
grappling with this often difficult
problem it must be borne in mind that public policy generally favours
the utmost freedom of
contract, and requires that commercial
transactions should not be unduly trammelled by restrictions on that
freedom
”
.
[14]
These
principles were adopted and amplified in
Botha
(now Griessel) v Finanscredit (Pty) Ltd
[10]
and
Jaglal
v Shoprite Checkers (Pty) Ltd
[11]
where it was further stated that in any investigation into whether a
contract, or the provisions thereof, were unenforceable on
the
grounds of public policy:
“
there
must be borne in mind: (a) that, while public policy generally
favours the utmost freedom of contract, it nevertheless properly

takes into account the necessity for doing simple justice between man
and man; and (b) that a court's power to declare contracts
contrary
to public policy should be exercised sparingly and only in cases in
which the impropriety of the transaction and the element
of public
harm are manifest
”
[12]
and
“
[b
ecause
]
the
courts will conclude that contractual provisions are contrary to
public policy only when that is their clear effect …
it
follows that the tendency of a proposed transaction towards such a
conflict … can only be found to exist if there
is a
probability that unconscionable, immoral or illegal conduct will
result from the implementation of the provisions according
to their
tenor. (It may be that the cumulative effect of implementation of
provisions not individually objectionable may disclose
such a
tendency.) If, however, a contractual provision is capable of
implementation in a manner that is against public policy but
the
tenor of the provision is neutral then the offending tendency is
absent. In such event the creditor who implements the contract
in a
manner which is unconscionable, illegal or immoral will find that a
court refuses to give effect to his conduct but the contract
itself
will stand.
”
[13]
[15]
It is in the light of these principles that
I must undertake my consideration of whether the rules complained of
by the Applicants
are unlawful.
[16]
The objects of the Respondent (referred to
as the “company”) are set out in clause 3 of its
memorandum of incorporation.
They are stated to be the following:
“
3.1
to promote, advance and protect the
interests of the Members generally and to co-operate with the Local

Authority, the KwaZulu-Natal Provincial Government and all other
appropriate authorities for the benefit of the Company and its

Members;
3.2
to represent the interests of the
Members and to provide a united voice by which such interest
may be
expressed;
3.3
to collect levies and other
contributions towards funds of the Company for the attainment of
the
objectives of the Company or any other of them;
3.4
to accept the conservation areas,
communal facilities and open spaces on the Estate and to make
and
enforce regulations governing the use thereof by the Members;
3.5
to preserve the natural environment,
vegetation and fauna within the conservation area;
3.6
to impose penalties upon Members
disobeying the Memorandum or the Rules made in terms thereof;
3.7
to maintain public road verges, focal
points and street furnishings within the Estate;
3.8
to provide security within the Estate
and make and enforce regulations in this regard;
3.9
to enforce adherence to the Design and
Development Rules and Landscaping Philosophy for the Estate;
3.10
in particular and in no way detracting from the
generality of the aforesaid to ensure that all buildings
and other
structures erected within the Estate, as well as any external
fixtures and fittings thereto, comply with the aforesaid
and
generally to ensure that the external appearance of all buildings and
other structures and all gardens and other areas in the
Estate comply
with standards set in the aforesaid documentation
.”
[17]
The provision in the sale agreement that
all owners of properties within the estate shall become members of
the Respondent is reinforced
in clause 6 of the memorandum of
incorporation, which states that such membership is “
obligatory
”.
Clause 7 of the memorandum of incorporation, in essence, makes
provision that every owner of property within the estate,
if a
natural person, is a member of the Respondent, and if the owner is a
corporate entity, that a natural person is nominated
by that entity
as being a member of the Respondent. Provision is also made that no
owner may transfer a unit unless it is a condition
of such transfer
that the transferee agrees to become a member of the Respondent.
[18]
The authority of the directors of the
Respondent to make rules is provided for in clause 20 of the
memorandum of incorporation.
(a)
The powers of the directors are described
in clause 20.1 as follows:
“
The
Directors shall have the power to make rules from time to time as
well as the power to substitute, add to, amend or repeal same,
for
the management, control, administration, use and enjoyment of the
Estate, for the purpose of giving proper effect to the provisions
of
the Memorandum and for any other purpose which powers shall include
the right to impose reasonable financial penalties to be
paid by
those Members who fail to comply with the provisions of this
Memorandum or the rules
.”
(b)
The matters in respect of which the
directors may make rules are prescribed in clause 20.2 of the
memorandum of incorporation, which
reads as follows:
“
Subject
to any restrictions imposed or directions given at a general meeting
of the Company, the Directors may from time to time
make rules,
applicable within the Estate in regard to:
20.2.1
the preservation of the natural environment;
20.2.2
the conduct of Members and persons within the
Estate and the prevention of nuisance of any nature to any
Owner in
the Estate;
20.2.3
the use and maintenance of land, common open
spaces, recreational areas, roads, etc.;
20.2.4
the design and development rules for the erection
of all buildings and other structures;
20.2.5
the design and development rules and the conduct
rules for the establishment, installation and maintenance
of gardens,
both public and private;
20.2.6
the use, upkeep, aesthetics and maintenance of
residences and public buildings;
20.2.7
the right to keep and control of pets;
20.2.8
the maximum number of residents allowed to reside
in any Dwelling;
20.2.9
the use by co-owners or corporate members, of a
residence;
20.2.10
any other matter as may in the opinion of the Directors
require to be regulated.”
[19]
Clauses 21.4 and 21.5 of the memorandum of
incorporation, although situated under the heading “
Enforcement
of Rules
”, provide the following:
“
21.4
Any rules made by the Board shall be reasonable and shall be
in the interest of the Company and, where applicable,
shall apply
equally to all Members
21.5
The rules made by the Board from time to time in
terms of the powers granted to them shall be binding on
Members
.”
[20]
The enforcement of the rules is provided
for in clause 21 of the memorandum of incorporation.
(a)
Any breach of the Respondent’s rules
is deemed to be a breach committed by the member. This is provided
for in clause 21.2,
which reads as follows:
“
In
the event of any breach of the conduct rules for residents by any
Lessee of Units, guests or invitees, authorised representatives
or
any other duly authorised person such breach shall be deemed to have
been committed by the Member and the Directors shall be
entitled to
take such action as they may deem fit against the responsible
Member.”
(b)
In terms of clause 21.1:
“
The
Directors may take or cause to be taken such steps as they may
consider necessary to remedy the breach of any rules of which
a
Member may be guilty and debit the costs of so doing to the Member
concerned which amounts shall be deemed to be a debt owing
by the
Member to the Company. In addition the Directors may impose a system
of penalties. The amounts of such penalties shall be
determined by
the Board from time to time.
”
(c)
Clauses 21.3 and 21.6 provide as follows:
“
21.3
Notwithstanding the aforegoing, the
Directors may in the name of the Company enforce the provisions
of
any rules by an application to a Court of competent jurisdiction and
for this purpose may appoint such Attorneys and Counsels
they may
deem fit.
21.6
In no way detracting from the
generality of any other provision of this Memorandum, in
the event of
the Company incurring any legal costs as a result of any breach of
this Memorandum by any Member, the Company shall
be entitled to
recover all such legal costs from such member on an attorney and own
client scale in full whether or not legal action
is actually
instituted.”
[21]
In
their founding affidavit, the Applicants put up a copy of the
“
Revised
Rules-March 2011
”
of the conduct rules.
[14]
In
its answering affidavit, the Respondent contended that such was “an
old version of the Rules” and annexed a copy
of the “
Revised
Rules-August 2013
”
as being the pertinent version.
[15]
There was an initial challenge regarding whether such rules had been
properly promulgated or whether the Applicants had been given
proper
notice thereof, but such was not pursued by the Applicants in
argument before me. It was agreed between counsel that I should
refer
to the “
Revised
Rules-August 2013
”
for the purposes of this application.
[22]
The relief sought in the notice of motion
has been styled in such a way so as to categorise the rules
complained of in accordance
with what the Applicants contend is their
alleged purpose.
(a)
Rules 7.1.2 and 7.3.2 are categorised as
those which “
authorise and empower
the First Respondent to police the road works within the Mount
Edgecombe Country Club Estate Two, including
the issuing of speeding
fines and/or fines for otherwise contravening any law governing the
control of traffic on public roads
”.
The rules read as follows:
“
7.1.2
The speed limit throughout Estate 2 is 40 km/h. Any person found
driving in excess of 40 km/h, will be subject to a
penalty. The
presence of children and pedestrians as well as many undomesticated
animals such as buck, monkeys, mongoose, leguans
and wild birds means
that drivers need to exercise additional caution when using the
roads.
7.3.2
Operating any vehicle in contravention of the National Road
Traffic Act within Estate 2 is prohibited
.”
[16]
(b)
Rules 2.1, 4.7 and 4.8.1 are categorised as
those which “
restrict the free
choice of the owners and residents of the Mount Edgecombe Country
Club Estate Two with regard to which contractors
and/or service
providers they may utilise or employ, within the bounds of the Mount
Edgecombe Country Club Estate Two
”.
The rules read as follows
“
2.1
Design
Procedures
2.1.1
The design and construction of all new buildings, extensions,
alterations to buildings, swimming pools, fences and
all gardens must
be approved by MECCEMA TWO
[17]
prior to any work being commenced. In addition, the required local
authority approvals must also be obtained for all new buildings,

alterations, glass enclosures, extensions, gazebo’s etc. All
buildings, fences and gardens must adhere strictly to the
comprehensive
“Design and Development Rules” and “Town
Planning Controls” for the particular village concerned. A copy

of the relevant documents may be obtained from the MECCEMA TWO
office.
2.1.2
In order to maintain building standards and design
requirements, every alteration to a building, installation of a
glass
enclosure, attachment to a building (plaques, awnings, air
conditioning units, satellites, etc) erection of or alteration
to
fencing/garden walls, etc., on Estate 2 must have
prior
written permission
from MECCEMA
TWO. No owner building is permitted on the Estate. A list of
accredited building contractors is available from MECCEMA
TWO.
4.7
Landscapers
4.7.1
All landscapers working on MECCEMA TWO must be SALI approved and on
the Estate’s approved contractor’s panel.
4.7.2
If a resident wants to landscape the verge, permission must be
granted by MECCEMA TWO. A landscape plan must be submitted
by a
landscaper and also approved by MECCEMA TWO. The owner is responsible
for the maintenance of the landscaped area.
4.7.3
If a landscaper is approached by a resident to revamp the
whole or a large portion of the garden, a new plan must be
submitted
to MECCEMA TWO for approval before work commences.
4.7.4
When the landscaper hands the maintenance contract over to the
garden maintenance contractor, MECCEMA TWO will continue
to hold the
landscaper responsible for the maintenance of the garden for 6
months, in terms of rule 4.1.5.
4.7.5
The garden will be inspected by the MECCEMA TWO Landscaping &
Environmental Manager after 6 months to be signed
off as being in
good order and no longer the responsibility of the landscaper.
4.8.1
All garden maintenance contractors must be accredited by
MECCEMA TWO.
”
(c)
Rules 9.3.2, 9.4.1 and 9.4.3 are
categorised as those which “
restrict
the hours of employment of domestic employees of owners and residents
on the Mount Edgecombe Country Club Estate Two and/or
restrict the
rights of such domestic employees to traverse the public road network
over the estate by walking around or otherwise
”.
The rules read as follows:
“
9.3.2
All domestic employees must comply with instructions from Security
while boarding and travelling on the official MECCEMA TWO
buses.
Domestic employees must make use of designated bus stop points
throughout the Estate. When the bus service is unavailable,
domestic
employees may walk on the Estate between the residence where working
that day and their gate of exit.
9.4.1
All domestic employees must be registered on an annual basis
from the date of their first registration and are to obtain
an access
card for entry to Estate 2. Access cards will be validated only for
recognised normal business hours unless authorised
differently by
MECCEMA TWO.
9.4.3
Domestic Employees may have access to Estate 2 from Mondays to
Sundays but only during the hours of 06h00 and 18h00,
they must
personally swipe their access cards/scan their finger on the
biometric reader for ingress and egress. Any variation from
this must
be authorised by MECCEMA TWO in writing
.”
[23]
In their founding affidavit, the Applicants
contend that there are four challenges to the rules, which they state
to be as follows:
(a)
“
The
first challenge is that of the Association purporting to carry out
the functions of traffic officers or peace officers (as defined
in
the NRTA
[18]
)
on the roads, which are public roads under the NRTA, within the
estate and that of the Association purporting to enforce the
provisions of the NRTA
.”
(b)
“
The second challenge is against
the Association restricting which contractors owners and residents,
who are subject to the rules
of the Association, may utilise in
effecting building alterations, additions and repairs to their unit,
the landscaping of their
gardens and the ordinary garden maintenance
thereof
.”
(c)
“
The third challenge to the
Association’s rules is in respect of the restrictions that the
Association has imposed on the hours
of work that the domestic
workers employed by the owners and residents of units within the
estate must adhere to as well as to
the restrictions imposed by the
Association to the effect that the domestic employees may not freely
walk on or over the public
roads within the estate
.”
(d)
“
The fourth challenge is in
respect of the Association’s alleged power to restrict or limit
the right of access to the estate
by owners and residents
.”
[24]
The first challenge is clearly a challenge
to rules 7.1.2 and 7.3.2, as defined in the notice of motion. In
support of their first
challenge, the Applicants make reference to
the fact that, although they may be laid out on property privately
owned by the Respondent,
the roads within the estate are deemed to be
public roads as defined in terms of the National Road Traffic Act,
No. 93 of 1996
(“the
National Road Traffic Act&rdquo
;). This
much is common cause as
rule 7.1.1
of the conduct rules provides
that:
“
The
roads on Estate 2, in spite of being within the fence and appearing
to be ‘private’, are in fact public roads and
therefore
within the jurisdiction of the National Road Traffic Act No. 93 of
1996 (as amended)
”
.
Reference
is then made to various sections of the
National Road Traffic Act.
The
Applicants contend that a general speed limit in respect of every
public road within an urban area is prescribed by the Minister,
which
it is accepted is 60 km/h.
[19]
They go on to state that as the roads within the estate are public
roads they are subject to that general maximum speed limit.
They
further state that road traffic signs may only be caused to be
displayed on a public road by the Minister or any person authorised

by him and that no person may drive a vehicle on a public road at a
speed in excess of the general speed limit or as indicated
by an
appropriate traffic sign.
[20]
They point out that any person who contravenes of fails to comply
with the provisions of the
National Road Traffic Act shall
be guilty
of an offence and liable to pay a fine, if convicted, and that the
duty to regulate the control and monitoring of traffic
on public
roads is vested in traffic officers.
[21]
They go on to state that the manner in which the contraventions in
question are to be policed and enforced is regulated by
the
Criminal
Procedure Act, No. 51 of 1977
, read with the
National Road Traffic
Act, and
contend that only peace officers, which include traffic
officers, are entitled to police public roads in regard to all
questions
of speeding.
[22]
They point out that any person who is not an authorised peace
officer is not entitled to act in any way that may create an

impression that he or she is such a person.
[23]
They contend therefore that fines issued for speeding contraventions
under the
National Road Traffic Act, read
with the
Criminal Procedure
Act, can
only be issued by peace officers duly appointed as such and
not by persons impersonating such offices.
[25]
The Applicants then go on to submit that
the Respondent has not been authorised by the Minister, or by any
delegated authority authorised
by him, to reduce the speed limit on
the public roads within the estate to one lower than the general
speed limit as prescribed
by him. It is also submitted that the
Respondent’s alteration of the speed limit would only be valid
if an appropriate traffic
sign has been erected and that no such
traffic signs have been put up on the roads servicing the estate. It
is therefore contended
by the Applicants that the Respondent, by
issuing fines to persons caught travelling at a speed in excess of
the prescribed 40
km/h limit within the estate, is unlawfully
usurping the functions of traffic and other peace officers within
whose exclusive domain
the enforcement and prosecution of
contraventions of the provisions of the
National Road Traffic Act are
vested. They further contend that any persons appointed by the
Respondent to carry out this function within the estate are
impersonating
or creating the impression that they are traffic
officers and/or peace officers, which constitutes an offence in terms
of the
National Road Traffic Act.
[26
]
The Applicants also contend that the
Respondent, in keeping the monies paid by residents in respect of
speeding fines and not paying
same to the relevant municipality, is
committing the offence of compounding.  In support of this, it
is contended that the
Respondent is, in essence, unlawfully and
intentionally agreeing, for award, not to report or prosecute a crime
that is otherwise
punishable in law.
[27]
The Applicants further contend that the
levying of private speeding fines by the Respondent also falls within
the ambit of
section 3
of the
Prevention and Combating of Corrupt
Activities Act, No. 12 of 2004
. In this regard it is submitted by the
Applicants that the Respondent is offering to accept and is accepting
money from residents
for its benefit in order to act in a manner
which is illegal in terms of the
National Road Traffic Act. It
is
contended that this also mounts to an abuse of the Respondent’s
position of authority over owners and residents and a
violation of
the laws set forth in the
National Road Traffic Act and
the
Criminal
Procedure Act.
[28]
The
Applicants further point out that the
National Road Traffic Act
provides
for the suspension of a person’s driving licence when
a person is convicted of an offence where such person has failed to

fulfil his duties in the event of an accident where death or serious
injury is caused to any person or where such person is convicted
of
travelling at a speed in excess of 30 km/h over the prescribed
general speed limit in an urban area.
[24]
It is contended by the Applicants that these provisions of the
National Road Traffic Act are
clearly not being enforced within the
bounds of the estate by the Respondent as it does not convict
residents, their guests or
contractors for any contraventions of the
said Act. It is contended that the Respondent is thus haphazardly
applying the law in
contravention of every person’s right to
equality as defined in section 9 of the Constitution of the Republic
of South Africa.
It is further contended that the enforcement by the
Respondent of its rules regarding speeding, by prescribing that fines
must
be paid before any application for appeal will be considered,
offends against the
audi
alteram partem
principle
and accordingly limits the residents’ rights in terms of
section 36 of the Constitution by denying them the right
to have any
disputes that can be resolved by the application of law decided in a
fair public hearing before a court or tribunal.
[29]
The Applicants then go on to state that
they, as law-abiding citizens, are not averse to the policing of the
roads, whether they
be within the bounds of the estate are otherwise.
They are however averse to a private body performing public functions
unlawfully
and unconstitutionally. They contend that they are not
prepared to submit to the unlawful authority of the Respondent.
[30]
The Applicants’ second challenge is a
challenge to rules 2.1, 4.7 and 4.1.8, as defined in the notice of
motion. In the founding
affidavit it is contended by the Applicants
that these rules effectively exclude a resident or owner from
choosing his or her service
providers as they are not allowed to
utilise contractors who do not appear on the Respondent’s list
of accredited contactors.
The Applicants go so far as to state that
rule 2.1 in fact provides that no owner building is permitted on the
estate and the owners
are required to select a builder from a list of
accredited building contractors which is available from the
Respondent. The Applicants
also contend that rule 4.7 similarly
applies with regard to landscaping. It is alleged that the rule
provides that all landscapers
working on the estate are to be
approved by the South African Landscapers Institute and are to be
listed on the Respondent’s
approved contractor’s panel.
The Applicants contend that the effect of the aforegoing rules is
that all residents and owners
are obliged to only use contractors,
whether in relation to building works or in regard to landscaping or
garden maintenance, from
a list of such contractors approved by the
Respondent.
[31]
It
is further submitted by the Applicants that the Respondent performs a
service to each and every owner or resident within the
estate within
the meaning of
section 1
of the
Consumer Protection Act, No. 68 of
2008
. They contend that the Respondent is accordingly a supplier as
defined in terms of the Act as the owners of units, even though they

are members of the Respondent, are still consumers
vis-a-vis
the services provided to them by the Respondent. They then make
reference to section 13 (1)
[25]
of the Act and contend that the Respondent, as a supplier, may not
require, as a condition of offering to supply any goods or services,

or as a condition of entering into an agreement or transaction,
require that its members must agree to purchase any particular
goods
or services from a designated third-party.
[32]
The Applicants, in their founding
affidavit, state that, as an owner and resident within the estate,
they readily accept that they
are bound by the rules of conduct that
are not unlawful and to which they have effectively agreed to. They
therefore have no complaint
with the Respondent having mechanisms in
place to ensure, for example, that standards are maintained and that
agreed consistency
within the estate is adhered to. At a practical
level, it is submitted by the Applicants, the Respondent can have a
team of professionals,
or several teams of professionals, who can
monitor work done within the estate and who can ensure compliance and
adherence as aforesaid.
They however contend that this is “
an
altogether different proposition
”
from the Respondent purporting to dictate which contractor they may
or may not use on their private property. They accordingly
submit
that the Respondent is not permitted to constrain any of the owners
or residents of units within the estate from utilising
the services
of accredited contractors and/or service providers outside of those
designated by the Respondent.
[33]
They
further contend that the conduct of the Respondent “
with
regards to the closed list of accredited contractors
”
falls foul of the provisions of the Competition Act, No. 89 of 1998
(“the
Competition Act&rdquo
;). In support of this submission
the Applicants contend that the preamble to the
Competition Act
clearly
states that the Act is to provide for markets in which
consumers have access to, and can freely select, the quality and
variety
of goods and services they desire. It is contended that the
Respondent’s memorandum of incorporation is an agreement in
terms
of the definition of “
agreement
”
in the
Competition Act. The
relationship between the Respondent and
the owners and/or residents within the estate amounts to a vertical
relationship as defined
in the Act. Reference is then made to
section
5
(1) of the
Competition Act
[26
]
and it is submitted that, as there is no benefit or gain that the
Respondent can show which outweighs the effect of preventing
or
lessening competition in respect of the services which contractors
and/or service providers can provide to the owners and/or
residents
of the units within the estate, the conduct rules regarding the
accredited list of contractors and/or service providers
is
anti-competitive and therefore unlawful.
[34]
The Applicants’ third challenge is a
challenge to
rules 9.3.2
,
9.4.1
and
9.4.3
as defined in the notice of
motion. It is alleged by the Applicants that the conduct rules
provide that domestic employees are
only allowed to walk on the roads
of the estate when the bus service provided for domestic employees is
not available. It is pointed
out that this bus service is provided
from Monday to Saturday at set times in the morning and afternoon.
It is further submitted
that, although not expressly provided for in
the rules, the Respondent adopts the position that the necessary
implication of the
aforegoing rules is that domestic employees may
not otherwise walk on the public roads within the estate.
[35]
The Applicant puts up an exchange of emails
between himself and the Respondent’s compliance and human
resources manager regarding
a request by the Applicant that the “exit
time” for his domestic staff be extended to 19h00 every day.
Such exchange
is common cause. It is evident that, although initially
contending that the “system” could not be amended so as
to
extend the time for domestic employees, the Respondent approved
the request for one of the Applicant’s employees, the
Applicant’s
driver, but refused it for his remaining two
domestic employees.
[36]
It is also contended that the Second
Applicant has experienced some difficulties with the Respondent
regarding the application of
the conduct rules in respect of his
domestic employees. An incident is referred to where two of his
domestic employees were alleged
to have been “
discovered
”
walking on the estate by one of the Respondent’s security
personnel. The Second Respondent’s wife then received
a
“
warning letter
”
from the Respondent in which it was contended that this was in
contravention of
rules 9.3.1
and
9.3.2
of the conduct rules. Again
this correspondence is admitted by the Respondent. It is pointed out
by the Applicants that the letter
makes reference to numerous
complaints having been received of “
domestics
”
walking on the estate and, as the Respondent has
no control over non-residents once they have entered the estate, such
is “
a safety concern to some
residents and management
”
. It is
therefore contended by the Applicants that the Respondent considers
the reasoning behind conduct
rules 9.3.1
and
9.3.2
to be that
“
domestic employees walking on the
estate pose a security risk
”
.
[37]
Various instances where domestic employees
have been seen walking unhindered on the estate are then referred to.
The Second Applicant
then addressed his concerns regarding the
alleged “
duplicitous application
”
of the conduct rules regarding domestic employees to the Respondent’s
rules warden in various emails. In response
thereto the rules warden
pointed out that the Respondent’s rules regarding domestic
employees walking on the estate was “
vague
in that it did not say that if the buses are operational that they
may not walk to and from their residence and the gate
”
.
The email goes on to state that the rule only governs walking to and
from the gate on arrival and departure from the domestic
employee’s
place of work. Should the employer deem it necessary for the domestic
employee to walk dogs or take children for
a walk on the estate, such
was not prevented. Again this exchange of correspondence is not
disputed.
[38]
It is then submitted by the Applicants that
their aforementioned exchange of emails constitute requests for
reasons in terms of
section 5 of the Promotion of Administrative
Justice Act, No. 3 of 2000 (“PAJA”). It is contended that
the Respondent
is a juristic person exercising a public power or
performing a public function in terms of an empowering provision,
namely its
memorandum of incorporation and the conduct rules. It is
contended that the Respondent’s actions in imposing conditions
or
restrictions on the residents’ domestic employees
constitutes a decision of an administrative nature. It is contended
that
the Respondent has failed to give the Second Applicant adequate
reasons in writing for the action taken in respect of his domestic

employee. It is further contended that the Respondent’s actions
in refusing the Applicant permission for his domestic employees
to
remain on the estate until 19h00 during the week also amounts to
administrative action. It is contended that the administrative
action
was not rationally connected to the purpose for which it was taken as
the Respondent allows domestic employees to traverse
the road network
at all times during the day, whilst in large numbers and whilst
walking their employers’ dogs or infants,
without any
compromise of estate security occurring. It is further contended that
the same concern arises regarding the request
for increased access
times for domestic employees as the Applicant’s servant’s
extended access to the estate does not
compromise the security of the
state as he is transported to and from his dwelling by the
Applicant’s driver. It is also
submitted that the Respondent
has failed to apply the conduct rules equally as it has extended the
times for one the Applicant’s
employees and not the others.
[39]
The Applicants then contend that there is
no good rational reason for the restriction of the hours of access to
the estate afforded
to their domestic employees and that the issue of
the domestic employees walking on the public roads of the estate is
not applied
fairly and equally to all residents. They therefore
contend that any rules which seemingly authorise either one or both
of the
aforegoing stand to be struck down by this court.
[40]
In support of the fourth challenge, namely
in respect of the Respondent’s alleged power to restrict or
limit the right of
access to the estate by owners and residents, the
Applicants make reference to the spoliation application and the
interim relief
and
rule nisi
granted in this regard. It is submitted by the Applicants that, it
would be wrong to raise the same complaint in the rules application

considering that the challenge on this score has been foursquarely
raised in the spoliation papers and common sense dictates that
the
appropriate way to deal with the fourth challenge is to have that
application finally determined at the same time and by the
same court
dealing with this application. Nothing further is said of the fourth
challenge.
[41]
It was submitted by counsel representing
the Respondent at the commencement of his argument that the
Applicants had raised various
issues for the first time in their
replying affidavit. There were various issues which the Respondent
contended were not foreshadowed
by the case made out in the founding
papers. These relate to: an argument that, as the Respondent is a
company, it is subject to
the provisions of
section 163
of the
Companies Act, No. 73 of 2008
and that its directors may only make
reasonable rules: an argument that the Respondent’s speeding
contravention notices were
not issued by the Respondent’s Board
of Directors, which it was contended was a requirement in terms of
the memorandum of
incorporation and conduct rules, and were therefore
unlawful: an argument that the refusal to allow the Applicant’s
domestic
workers to remain on the estate after the prescribed time of
18h00 was “
irrational
”:
and a contention that the “
operator
”
of the Respondent’s “
speed
measuring equipment
” was not
properly trained to calibrate or handle the equipment itself. It was
submitted that these constituted an impermissible
and opportunistic
attempt by the Applicants to make out a new case in reply. It was
therefore submitted that they fall to be ignored
for this reason
alone.
[42]
I am in agreement with the Respondent’s
counsel that none of the abovementioned issues are raised in the
Applicants’
founding papers. If one has reference to the
Applicants’ founding affidavit, the case made out by them,
insofar as the challenge
to
rules 7.1.2
and
7.3.2
is concerned, is
that the Respondent has not been authorised by the relevant authority
to regulate the speed at which persons may
travel on the roads within
the estate, is not authorised to police the roads and enforce such
speed limit by issuing speeding fines,
or otherwise, and is, in any
event, contravening every person’s right to equality, as
defined in section 9 of the Constitution
of the Republic of South
Africa, by “
haphazardly
”
applying the law and is also contravening the
audi
alterim partem
principle by requiring
residents to pay their fine prior to having a right of appeal. As far
as the challenge to rules 2.1, 4.7
and 4.1.8 is concerned, the case
made out is that such rules effectively preclude residents or owners
from choosing their own service
providers and accordingly contravene
the provisions of the
Consumer Protection Act and
the
Competition
Act. As
far as the challenge to
rules 9.3.2
,
9.4.1
and
9.4.3
is
concerned, the case made out in the founding papers is that such
rules provide that domestic employees are not allowed to walk
on the
roads in the estate when the bus service provided for them is
available, that the Respondent adopts a position that the
necessary
implication of such rules is that domestic employees may not
otherwise walk on the roads within the estate, that the
Respondent’s
actions in imposing conditions or restrictions on the residents’
domestic employees constitutes a decision
of an administrative nature
and that there is no good rational reason for the restriction of the
hours of access to the estate
afforded to their domestic employees.
[43]
It
is an established principle that an Applicant in motion proceedings
must stand and fall on its founding papers and may not introduce
new
issues or arguments in reply. In this regard I was referred to the
case of
Director
of Hospital Services v Mystery
[27]
and the dictum in the case of
Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South
Africa
[28]
where the following was stated by Joffe J:
[29]
“
It
is trite law that in motion proceedings the affidavits serve not only
to place evidence before the Court, but also to define
the issues
between the parties. In doing so the issues between the parties are
identified. This is not only for the benefit of
the Court but also,
and primarily, for the parties. The parties must know the case that
they must meet and in respect of which
they must adduce evidence in
the affidavits……..
An
Applicant must accordingly raise the issues upon which it would seek
to rely in the founding affidavit. It must do so by defining
the
relevant issues and by setting out the evidence upon which it relies
to discharge the onus of proof resting on it in respect
thereof
.”
I
was further referred to the case of
Union
Finance Holdings Ltd v IS Mark Office Machines II (Pty) Ltd
[30]
where it was stated:
[31]
“
The
respondent is apprised in a founding affidavit of the case it has to
meet and is afforded one opportunity only, save in exceptional

circumstances, to deal with the applicant's cause of action and
evidence in its answering affidavit. The applicant is afforded
an
opportunity in a replying affidavit to reply only to what the
respondent has stated, and may not raise new matter or new issues.

Strict adherence to this rule encourages litigating parties to
consult properly before launching an application in order to
establish
fully the facts which in turn give rise to the cause of
action. A failure to enforce this principle rigidly results in the
papers
ultimately becoming voluminous and being in a state of
disarray, replete with cross-references. It creates additional work
for
the Judges who are required to read affidavits dealing with
matters which are later simply jettisoned. This imposes an
unnecessary
further burden on the Motion Court Judges in any
particular week who in this Division regularly have an overloaded and
crowded
Motion Court roll to deal with. It is also wasteful of both
costs and productive time. Most important of all, adherence to the
principal ensures that disputes between litigants are resolved in
terms of a procedure which is just, orderly and well recognised.
Only
in exceptional circumstances and for sound reasons should the
procedure be deviated from.”
[44]
I have not been referred to, nor am I aware
of, any exceptional circumstances or sound reasons why this principle
should be deviated
from. I accordingly agree with the Respondent’s
counsel that the new issues raised for the first time in the
Applicants’
replying affidavit should not be taken into account
in my determination of this application.
[45]
It
was further submitted on behalf of the Respondent that it was
necessary to clarify exactly what was before me for determination
and
what was not. Counsel for the Respondent submitted that, although the
relief sought by the Applicants was relatively confined
in that they
only sought declaratory relief that the impugned rules were unlawful,
their papers were replete with arguments, in
large directed at the
alleged application of the rules and not to the challenge of the
rules themselves, none of which were encompassed
by the relief
actually sought in the notice of motion. It was submitted that the
Applicants rather limit their challenge to abstract
assertions that
the rules could be unlawfully applied, without demonstrating that
this has actually been done. It was contended
that the appropriate
time to challenge laws or rules is when they are breached on the
basis of an ulterior purpose and not upon
an assumption that they
might be breached or may be used for an ulterior purpose. In support
of this submission I was referred
to the case of
Van
Rooyen and Others v The State and Others (General Council of the Bar
of South Africa Intervening)
[32]
where the following was stated:
[33]
“
Any
power vested in a functionary by the law (or indeed by the
Constitution itself) is capable of being abused. That possibility
has
no bearing on the constitutionality of the law concerned. The
exercise of the power is subject to constitutional control and
should
the power be abused the remedy lies there and not in invalidating the
empowering statute
”
.
It
was therefore contended that, even if the argument was before me that
the rules were being used for a purpose for which they
were not
intended, such was premature as this was not the nature of the relief
sought by the Applicants in the notice of motion.
[46]
I agree that much of what is stated by the
Applicants in the papers before me relates to the enforcement by the
Respondent of the
speed restrictions on the estate and to the
Applicants’ perception that the Respondent is applying the rule
relating to service
providers in such a manner so as to create a
“
closed list
”
of such service providers and is applying the rule relating to the
access to domestic employees to the estate so as to preclude
such
employees from walking on the public roads laid out within the
estate.
[47]
The Applicants do not seek any relief aimed
at curtailing or prohibiting the manner in which the Respondent is
either applying or
enforcing the conduct rules. They seek a
declaration that the rules complained of are unlawful and should be
regarded as
pro non scripto
.
I understand what the Applicants are saying is that the rules
complained of allow the Respondent to act in the manner in
which they
contend it is doing.  There is no contention that the rules are
being applied in an improper manner.  The
Applicants in fact
accept that the conduct rules apply to the owners and residents of
the units within the estate but contend that
this does not apply in
respect of the rules which are challenged as unlawful.  It is
therefore not the binding force of the
conduct rules in general that
is being challenged in this application but only the lawfulness of
the content of the particular
impugned rules. These particular rules
therefore need to be analysed in the context of giving them a proper
meaning so as to determine
whether they are unlawful.
[48]
The
present state of our law regarding the interpretation of both
statutes and contracts has been expressed in
Natal
Joint Mutual Pension Fund v Endumeni Municipality
[34]
as
follows:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective, not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible
or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation; in a contractual context it is to make a contract for
the parties other than the one they in fact
made. The 'inevitable
point of departure is the language of the provision itself', read in
context and having regard to the purpose
of the provision and the
background to the preparation and production of the document
.”
[35]
[49]
The process to be followed has been
expressed as follows:
“
Whilst
the starting point remains the words of the document, which are the
only relevant medium through which the parties have expressed
their
contractual intentions, the process of interpretation does not stop
at a perceived literal meaning of those words, but considers
them in
the light of all relevant and admissible context, including the
circumstances in which the document came into being. The
former
distinction between permissible background and surrounding
circumstances, never very clear, has fallen away. Interpretation
is
no longer a process that occurs in stages but is 'essentially one
unitary exercise'
.
[36]
[50]
In analysing the challenged rules therefore
it is not the Applicants’ or the Respondents interpretation or
understanding thereof
that I am to have regard to but the language
used in the rules themselves. The exercise is an objective one
applying the above-mentioned
principles.
[51]
If
one has reference to the objects of the Respondent, as contained in
clause 3 of its memorandum of incorporation,
[37]
they are,
inter-alia
,
to “
promote,
advance and protect the interests
”
of its members, to “
provide
a united voice for which such interest may be expressed
”,
to “
accept
the conservation areas, communal facilities and open spaces on the
Estate and to make and enforce regulations governing the
use
thereof
”,
to “
preserve
the natural environment, vegetation and fauna within the conservation
area
”,
to “
provide
security within the Estate and make and enforce regulations in this
regard
”
and to “
enforce
adherence to the Design and Development Rules and Landscaping
Philosophy for the Estate
”.
Clause 20 of the memorandum of incorporation
[38]
gives the directors of the Respondent the power to make rules with
the aforementioned objects in mind.
[52]
In
considering the Respondent’s conduct rules
[39]
Olsen J came to the conclusion that they should not be seen as
“unduly” restrictive and punitive because they stand
as a
framework to safeguard and promote appropriate, sensible and fair
interaction amongst residents and the Respondent. He then
stated
[40]
that:
“
In
my mind what is conveyed in the introduction to the rules of that,
whatever opinions one might have as to whether any rules are
too
invasive, it should be recognised that they have been agreed upon by
the contracting parties to maintain a structure within
which
residents can feel secure as regards to the environment into which
they have bought, and as regards the conduct reasonably
to be
expected of their neighbours, and of the respondent in its capacity
as the enforcement authority with respect to the rules
”
.
[53]
The “
circumstances
attended upon the coming into existence
”
of the conduct rules and the “
apparent
purpose
” to which they are
“
directed
”
is to give effect to the aforementioned provisions of the Respondents
memorandum of incorporation and to formulate a structure
within which
its residents can feel secure as regards to their environment and the
conduct that they may reasonably expect from
the Respondent and their
neighbours. Sight must therefore not be lost of this intended purpose
in any interpretation of the rules
presently under consideration.
[54]
With
reference to rules 7.1.2 and 7.3.2
[41]
it is contended by the Applicants in their founding papers that the
Respondent has not been authorised by the relevant authority
to
regulate the speed at which persons may travel on the roads within
the estate. It is also contended that the Respondent is not

authorised to police the roads and enforce such speed limit by
issuing speeding fines, or otherwise, and is, in any event,
contravening
the residents’ right to equality, as defined in
section 9 of the Constitution, by “
haphazardly
”
applying the law. If one has reference to the notice of motion, it is
stated that rules 7.1.2 and 7.3.2 “
authorise
and empower
”
the Respondent to police the road network within the estate,
including the issuing of speeding fines. Although never succinctly

put, it appears that it is the Applicants’ contention that the
provisions of rules 7.1.2 and 7.3.2 allow the Respondent to
usurp the
authority of the authorised officials when it comes to policing the
road network within the estate.
[55]
It
is contended by the Respondent in its answering affidavit that it is
“
not
pretending to enforce laws applicable to the public. It is simply
acting in accordance with what members of the Estate have
agreed they
may do, as between each other as contracting parties. Contravention
notices are issued per the MOI and the Conduct
Rules and no attempt
is made to arrogate to the first respondent the right or power to
impose the penalties applicable under the
Road Traffic Act
”
.
[42]
[56]
To read rules 7.1.2 and 7.3.2 in context,
they must be read with clauses 34.5.1 and 21.2 of the memorandum of
incorporation and
rules 6.4, 6.6.1, 6.6.2, 6.7, 6.10.1, 7.1.1, and
13.1.8 of the conduct rules. The provisions referred to read as
follows:
(a)
“
Members and their invitees shall
be entitled to use all open spaces as well as private roads on the
Estate subject to such rules
as the Directors may lay down from time
to time provided that at all times Owners shall have vehicular and
pedestrian ingress and
egress from their Unit to a public road
.”
(clause 34.5.1)
(b)
“
In the event of any breach of the
conduct rules for residents by any Lessee of Units, guests or
invitees, authorised representatives
or any other duly authorised
person such breach shall be deemed to have been committed by the
Member and the Directors shall be
entitled to take such action as
they deem fit against the responsible Member
.”
(clause 21.2)
(c)
“
Messenger of Court,
Sheriff of the Court and Police Officers:
Due
to the nature of the above category of persons, and the judicial
processes involved, MECCEMA TWO may not obtain confirmation
from
residents prior to these persons entering Estate 2, nor may we deny
these persons access. However security will ensure that
valid court
orders, warrants, etc., are produced before they are allowed access.
Security will escort such persons to the premises
and ensure that all
relevant laws are obeyed
.” (rule
6.4)
(d)
“
Access cards identify an
individual and his/her authority to freely enter/exit Estate 2….”
(rule 6.6.1)
(e)
“
Only persons permanently residing
on Estate 2, club members, guests (including Estate 1) or those
authorised to work on Estate 2
may use access cards….
”
(rule
6.6.2)
(f)
“
Every resident shall stop at all
security control gates and then proceed by operating his or her
access card
.” (rule
6.7)
(g)
“
Every resident who wishes a
visitor to enter the Estate must phone the Control Room to register
that visitor, obtain a reference
number and confirm that the visitor
is listed on the Visitor Log…
.”
(rule
6.10.1)
(h)
“
The roads on Estate 2, in spite
of being within the fence and appearing to be ‘private’,
are in fact public roads and
therefore within the jurisdiction of the
National Road Traffic Act No. 93 of 1996 (as amended)
”
.
(rule
7.1.1)
(i)
“
Any contravention of the rules by
any person who gains access to Estate 2 on the authorisation of a
resident shall be deemed to
be a contravention by the resident
concerned
.” (rule
13.1.8)
[57]
It is evident from the provisions referred
to above, that all ingress and egress to the estate is strictly
controlled. By agreement,
the owners of all properties within the
estate, who are defined in the conduct rules as “
residents
”,
acknowledge that they and their invitees are only entitled to use the
roads laid out on the estate subject to the conduct
rules. It is also
evident that any invitee of a resident, whether such be a visitor or
a contractor engaged by such person, will
only be given access to the
estate if prior arrangement has been made with the resident
concerned. Upon such invitee having gained
access to the estate,
responsibility for any breach of the conduct rules by that invitee is
assumed by the resident through which
such invitee gained access. Any
breach of the conduct rules is therefore an issue strictly between
the resident concerned (who
is a member of the Respondent) and the
Respondent itself. No sanction is imposed on the “
delinquent
invitee
”. Any third party who
gains access to the estate is in truth not bound by the conduct
rules. The third party’s adherence
to the rules is left up to
the resident who invited him or her onto the estate. It is the
resident who has to ensure that the third-party
complies with the
conduct rules or bear the consequences of any sanction imposed as a
consequence of that third party’s non-adherence
thereto. There
is nothing in the rules which provides for any consequence flowing
from a non-compliance with the rules by a third-party
who has gained
access to the estate in a manner other than through the authority of
a resident. The control of the speed limit
within the estate
therefore falls squarely within the provisions of the contract
concluded between the Respondent and the owners
of the properties
within the estate.
[58]
I agree therefore with the Respondent’s
contention that it is not endeavouring to control the conduct of all
persons entering
the estate or to impose the provisions of the
National Road Traffic Act upon
those persons. The rules themselves
provide that the roads within the estate in fact fall within the
jurisdiction of the
National Road Traffic Act. If
that is the case,
it must follow that the authority of the peace officers, within whose
exclusive domain the enforcement and prosecution
of any
contraventions of that Act is entrusted, is also recognised. There is
again nothing in the conduct rules which prohibits
the enforcement of
the provisions of the
National Road Traffic Act by
the relevant
authorities within the estate. If anything,
rule 6.4
recognises that
officers of the court and police officers may gain access to the
estate other than through the authority of a resident.
[59]
Again
these sentiments are reinforced by what was stated by Olsen J in
Abraham
v The Mount Edgecombe Country Club Estate Management Association Two
(RF) NPC
[43]
that the conduct rules, and the restrictions imposed by them, are
private ones, entered into voluntarily when electing to buy property

upon the estate. These private rules are “
superimposed
”
on any national or municipal legislation and do not usurp them. I see
no difference between the rule considered by Olsen
J, namely
rule 5.1
which, whilst recognising observance of the local authority bylaws,
restricted the breeds and sizes of dogs that may be kept on
the
estate, and
rule 7.1.
Rule 7.1
also recognises the jurisdiction of
the
National Road Traffic Act but
restricts the speed at which
residents and their invitees may drive on the roads laid out in the
estate. Once it is accepted that
the rules are private ones, the
Applicants’ argument that the Respondent is usurping the
functions of the recognised authorities
or contravening the
provisions of the various legislation referred to must be rejected.
[60]
If
one has reference to
rule 7.1.2
, and one gives the words their
ordinary grammatical meaning, it goes no further than to prescribe
that “
the
speed limit throughout Estate 2 is 40 km/h
”
and
that “
any
person found driving in excess of 40 km/h, will be subject to a
penalty
”
.
[44]
If one has reference to the Respondent’s memorandum of
incorporation, its directors are entitled to make rules for the “
use
and maintenance
”
of
the roads (clause 20.2.3) and are also entitled to “
impose
a system of penalties
”
for
a beach of such rules (clause 21.1). If one has reference to the
objects of the Respondent
[45]
,
it cannot be said that the prescribing of a lower speed limit within
the estate than that prescribed by national legislation goes
beyond
promoting, advancing and protecting the interests of the Respondent’s
members or is unreasonable
[46]
.
This is especially so if one considers the presence of children,
pedestrians and animals (both domesticated and undomesticated)
upon
or in the immediate vicinity of the roads themselves.
Rule 7.3.2
[47]
goes no further than to record that the operating of any vehicles in
contravention of the
National Road Traffic Act within
the estate is
prohibited. I cannot see how such a statement can be objectionable.
[61]
There is a further contention by the
Applicants that the Respondent is contravening the
audi
alterim partem
principle by requiring
residents to pay their fine prior to having a right of appeal. This
contention can only be a reference to
the provisions contained in
clause 13 of the conduct rules. In terms of clause 13, if a resident
fails to comply with any provisions
of the conduct rules, the
Respondent may,
inter-alia
,
“
impose a financial penalty which
has to be paid within 14 days of issue and shall be deemed to be part
of the levy due by the owner
”
(clause
13.1.3) and “
suspend access cards
for the household concerned
”
(clause
13.1.7). In terms of clause 13.1.10, “
should
any resident be aggrieved by any decision made by the Estate
Management, he/she may, after having first paid the penalty,
lodge an
appeal within 7 days of the penalty being paid, to the Board through
the Estate Manager….
”
. It
is not however contended by the Applicants that the provisions of
clause 13 are unlawful and no relief is sought in this regard
in the
notice of motion. Clause 13 is simply not mentioned. In the context
of what is before me for consideration in this application,
I cannot
see how the submission that the Respondent is allegedly breaching the
the
audi alterim partem
principle supports the contention that
rules 7.1.2
and
7.3.2
are
unlawful.
[62]
As
far as
rules 2.1
,
4.7
and
4.1.8
are concerned, the Applicants
crystallise their complaint as follows:
[48]
“
The
effect of the aforegoing rules is that all residents or owners are
obliged to only use contractors, whether in relation to building

works, in relation to landscaping or gardening maintenance, from a
list of such contractors approved by the Association
”
.
The
Applicants have accordingly placed an interpretation on these rules
that they effectively preclude residents or owners in the
estate from
choosing their own service providers. They accordingly contend that
such rules contravene the provisions of the
Consumer Protection Act
and
the
Competition Act.
[63
]
If
one has reference to
rule 2.1
,
[49]
the only reference to any form of “
accreditation
”
is contained in the last sentence of sub-
rule 2.1.2
, where it is
stated that “[
a
]
list
of accredited building contractors is available from MECCEMA TWO
”
.
The rest of the rule relates to the prior approval of any building
works by the Respondent and compliance with its “
Design
and Development Rules
”
and “
Town
Planning Controls
”.
As far as rule 4.7 is concerned, the only reference to “
approved
contractors
”
is contained in sub-rule 4.7.1, which provides that “[
all
]
landscapers
working on MECCEMA TWO shall be SALI
[50]
approved
and on the Estate’s approved contractors panel
”
.
Again the rest of the rule relates to permission having to be
obtained prior to
any
major landscaping being undertaken. In their founding affidavit,
[51]
the Applicants state that they “
have
no complaint with the Association having mechanisms in place to
ensure, for example, that standards are maintained and that
agreed
consistency within the estate is adhered to
”
.
I must assume therefore that the Applicants’ complaint is
directed at the provisions of the last sentence of sub-rule 2.1.2
and
sub- rule 4.7.1 and that they raise no complaint to the remaining
provisions of rules 2.1 and 4.7 as a whole. Rule 4.8.1 provides
that
that “[
all
]
garden
maintenance contractors must be accredited by MECCEMA TWO
”.
[64]
If one has reference to the design rules
not complained of by the Applicants, the design and construction of
all new buildings,
extensions, alterations to buildings, swimming
pools, fences and all gardens must be approved by the Respondent
(rule 2.1.1), every
alteration to a building, installation of a glass
enclosure, attachment to a building, the erection or alteration to
fencing or
garden walls must be approved by the Respondent (that
portion of rule 2.1.2 not complained of by the Applicants), plans, as
required
in terms of the “
Conditions
of Sale
” and the “
Design
and Development Rules
”, must be
submitted to the Respondent along with any request for approval (rule
2.2.1), no objects may be placed on or attached
to any unit or any
other structure other than in accordance with prior written approval
by the Respondent (rule 2.4), a process
for the submission and
approval of any glass enclosures, which includes a condition that an
accredited glass installer approved
by the Respondent may be used, is
prescribed (rule 2.5), all fencing must comply strictly with the
building rules and may not be
installed without the Respondent’s
prior written approval (rule 2.6) and  no gazebos, pergolas or
any other similar
structure may be erected without the Respondent’s
prior written approval (rule 2.7).
[65]
The garden and landscaping rules provide
that the installation of initial or new gardens must comply with the
procedures and rules
laid down by the Respondent (rule 4.1.1), the
content of the plant material is prescribed (rules 4.1.2 and 4.5),
that an accredited
landscaper must submit proposed garden design
layouts to the Respondent for approval prior to the commencement of
any garden installation
(rule 4.1.3) and that the landscaper
concerned is then responsible for the maintenance of the garden for a
period of six months
after installation (rule 4.1.5). Again the
Applicants have no complaint with regard to these rules.
[66]
If one has reference to the conduct rules
as a whole, it is immediately evident that the owners of units within
the estate have
contractually bound themselves to live within a
controlled environment. This much is echoed in the introduction to
the conduct
rules themselves, which provides that:
“
Living
on Estate 2 means being part of a community of people who share a
secure and congenial lifestyle. Conduct Rules for the community

protect this lifestyle through an acceptable code of conduct by which
the members may live together, reasonably and harmoniously,
without
interfering with others’ lawful use and enjoyment of the
environment. Mutual respect and consideration by all residents
for
each other promotes a contented lifestyle on Estate 2
.”
The
Respondent’s directors are then given the authority to make
reasonable rules for the management, control, administration,
use and
enjoyment of the estate with the above principles in mind. If one has
reference to the rules referred to above, it is evident
that every
aspect of construction or landscaping undertaken on the estate is
controlled by, and undertaken with the prior approval
of the
Respondent. The obvious reason for this is to give effect to the
residents’ professed desire to “
live
together, reasonably and harmoniously, without interfering with
others’ lawful use and enjoyment of the environment
”
within the estate. This control by the Respondent
ensures that the buildings and gardens on the estate are
aesthetically harmonious
and that any alterations or new construction
will not run counter to what has gone before.
[67]
With this concept in mind I see no reason
why the Respondent would not seek to ensure, or in fact ought to
ensure, that the standard
of construction and landscaping that takes
place on the estate conforms to the agreed standard. The only way to
ensure that the
required standard is met is to ensure that the
contractor or landscaper concerned is competent and able to carry out
the works
approved by the Respondent in a proper manner. The only way
to do this is to ensure that the contractor or landscaper is either

accredited by a recognised authority or has, through prior conduct,
shown that he or she is so competent. If one accepts, as do
the
Applicants, that it would be proper for the Respondent to have
mechanisms in place to ensure that standards are maintained
and that
agreed consistency within the estate is adhered to, I see no reason
why the Respondent ought not have a list of “
accredited
”
service providers who are either accredited by a recognised authority
or have, through prior conduct, established that they
are competent.
[68]
The rules that I have to give consideration
to read as follows: “
a list of
accredited building contractors is available from MECCEMA TWO
”
(rule 2.1.2),
“
all
landscapers working on
MECCEMA TWO shall
be SALI approved and on the Estate’s approved contractors
panel”
(rule 4.7.1) and “
all
garden maintenance contractors must be accredited by MECCEMA TWO
”
(rule 4.8.1). Viewed in context with the rules
referred to above, I cannot see, given their literal meaning, how the
rules under
consideration go any further than to record that the
Respondent has a list of “
accredited
”
service providers and that all building contractors, landscapers and
garden maintenance contractors must be on that list
prior to carrying
out any works on the estate. I am therefore of the view that the
rules, given a proper interpretation, do not
provide for a “
closed
list
” of service providers, as is
contended for by the Applicants.
[69]
There
is nothing in the rules themselves that prescribes how a contractor
is in fact “
accredited
”
by the Respondent or how the list is compiled. Some insight as to how
contractors are accredited and placed on the list
is given by the
Respondent in its answering affidavit, where it is stated that:
[52]
“…
The
list of the accredited contractors and landscapers is not closed…..
when an owner or member wishes to use a contractor
or landscaper not
already appearing on the accredited list, the owner or member may
apply to use such contractor or landscaper.
Provided that contractor
or landscaper meets certain requirements set out by the first
respondent to ensure that only reputable
contractors and landscapers
are used, the contractor will be accredited. Accreditations are
applied for and granted on a case by
case basis. Factors influencing
the first respondent’s decision to allow contractors or
landscapers not already on the accredited
list are whether they are
registered with the appropriate body, ….. and that they are
not fly by night operators. I must
stress that the list of accredited
contractors, landscapers and so on is not intended to exclude anyone,
but rather to ensure that
all reputable contractors and landscapers
are permitted to operate on the Estate. The contractors on the list
are not the first
respondent’s choice. They are on the list
after meeting the first respondent’s requirements pursuant to a
request either
by an owner or the contractor itself
.”
[70]
The Applicants cannot gainsay what is
stated by the Respondent regarding applications for accreditation and
placement of contractors
on the list as it appears, from what is
stated in their founding affidavit, that neither of them have in fact
approached or made
application to the Respondent to have their
contractor of choice placed on the list. All that is stated by the
Applicant that he
is a property investor and developer and has, over
the years, become acquainted with a number of different building
contractors
and service providers. He then goes on to state that it
would be for his benefit to use the services of the contractors with
whom
he has built up a lengthy and trusting relationship, that he is
acquainted with the quality of their work and that he can procure
an
extremely favourable rate from them. Nowhere however is it stated
that any application has been made to the Respondent to have
such
contractors placed on the list, nor is it contended that the
Respondent has refused to place such contractors on its list
pursuant
to any such application. I must therefore accept what the Respondent
has stated with regard to the status of the “
accredited
contractors list
”.
[71]
Having accepted that the rules under
consideration do not provide for a closed list of contractors, the
Applicants’ contention
that these rules fall foul of the
provisions of the
Consumer Protection Act, N
o. 68 of 2008 and the
Competition Act, No. 89 of 1998
must be rejected. There can be no
violation of the Applicants’ “
right
of free choice
” if the Respondent
has no right to, nor does, prescribe or dictate which contractors the
residents may use. All that the
Respondent is in fact doing is giving
effect to what has been agreed upon by the owners of the units as to
the standard of building
and landscaping that is required within the
estate.
[72]
The
Applicants’ contentions as regards
rules 9.3.2
,
9.4.1
and
9.4.3
[53]
are somewhat vague.
It is alleged by the Applicants
[54]
that these rules “
provide
that domestic employees are only allowed to walk on the roads of the
estate when the bus service provided for domestic employees
is not
available
”
.
Save for this allegation however, nothing further is said about
what the Applicants contend is a proper interpretation of
the rules
themselves. I assume therefore that this is the interpretation that
the Applicants seek to place on the rules in question.
[73]
It
is further submitted
[55]
that,
although not expressly provided for in the rules, the Respondent
adopts the position that the necessary implication of the
aforegoing
rules is that domestic employees may not otherwise walk on the public
roads within the estate. Most of what is alleged
by the Applicants
relates to the refusal by the Respondent to acquiesce to the
Applicant’s request to extend the “
exit
time
”
for his domestic employees beyond what is prescribed in
rule 9.4.3
and to a “
warning
letter
”
received by the Second Applicant’s wife regarding an incident
when two of his domestic employees were alleged to have
been
“
discovered
”
walking on the estate by the Respondent’s security personnel.
[74]
It
was submitted by counsel for the Respondent that the Applicants do
not appear to take issue with the rules themselves but rather
with
the Respondent’s apparent implementation of them. For the
reasons already referred to herein,
[56]
they contended that such challenge was premature and impermissible as
no relief was sought in this application relating to the
Respondent’s
apparent conduct or application of the rules themselves. I agree with
this submission. What is required in this
application is an analysis
of the rules concerned to determine whether, on a proper
interpretation, there is any “
necessary
implication
”
in
them that “
domestic
employees may not otherwise walk on the public roads within the
estate
”
and
whether they provide that “
domestic
employees are only allowed to walk on the roads of the estate when
the bus service provided for domestic employees is not
available
”
.
[75]
Some
insight into the bus service is provided in the Respondent’s
answering affidavit
[57]
where
it is stated,
inter-alia
,
that:
“
I
stress that the bus service dedicated to transporting domestic
employees to and from the access gate is provided at a substantial

cost to the Association. That service is provided not only to
alleviate the burden of domestic workers and owners/members to
arrange
transport from and to the homes on the estate, it is also to
ensure that the normal business hours of the domestic workers are
respected and that domestic workers are without delay assisted to
return home timeously at the end of their working day
.”
If
one bears in mind that there are in excess of 890 residential
development on the estate, it must follow that there is a large

volume of domestic employees that must seek ingress and egress to the
estate at the beginning and end of each working day. It must
also
follow, by virtue of the number of developments thereon, that the
estate covers a considerably large area. It therefore makes
sense,
rather than having a substantial increase in both pedestrian and
vehicular traffic on the roads within the estate at the
commencement
and end of each working day, as domestic employees either walk to
their place of employment or are transported thereto
by the
individual employers, that a bus service be provided for such
employees during these peak periods.
[76]
Rule 9.3.2
cannot be read in isolation.
Rule 9.3
as a whole provides for “
Transport
of Domestic Employees
”
.
Rule
9.3.1
states that:
“
Transport
for Domestic Employees on Estate 2 is provided on Monday to Saturday
at set times in the morning and afternoon. The service
is also
available on public holidays, excluding Good Friday, Christmas Day
and New Year’s Day. Only registered access card
holders are
permitted to utilise the bus service. MECCEMA TWO does not guarantee
the service or accept any responsibility for any
interruption in the
service
”
.
Rule
9.3.2
must therefore be read in the context of the bus service
provided as aforesaid. The words “[
all]
domestic employees must comply with
instructions from Security while boarding and travelling on the
official MECCEMA TWO buses.
Domestic employees must make use of the
designated bus stop points throughout the Estate
”
cannot mean anything other than what they state.
Considering the probability of the large volume of domestic employees
at the commencement
and end of each working day, it makes perfect
sense that the Respondent’s security personnel would be
utilised to ensure
an orderly boarding and exiting of the buses
provided. The same logic applies to the provision regarding the use
of designated
bus stops. This will ensure that the domestic employees
are picked up and dropped off in an orderly fashion.
[77]
If read in the context that they refer to
the bus service provided in terms of
rule 9.3.1
, the words “[
when
]
the bus service is unavailable, domestic
employees may walk on the Estate between the residence where working
that day and their
gate of exit
”
in
the last sentence of the
rule 9.3.2
can only be a reference to the
time periods when the bus service is being provided, namely, at the
“
set times in the morning and
afternoon
”
on Mondays to
Saturdays. If any restriction can be implied, from a reading of
rule
9.3
as a whole, it is that domestic employees are required to utilise
the bus service provided to transport themselves to and from their

gate of entrance and the residence at which they are employed, if
such bus service is being provided at that time.  Other
than at
the time when the bus service is being provided, and for the specific
purpose of walking “
between the
residence where working that day and their gate of exit
”
,
I cannot see how any further restriction to the free movement of
domestic employees within the estate can be implied from the

provisions of the rules concerned. I therefore do not see that there
is any “
necessary implication
”
in
rule 9.3.2
, or in fact
rule 9.3
as a whole,
that “
domestic employees may not
otherwise walk on the public roads within the estate
”
.
I also cannot see, if this is in fact what has been contended for by
the Applicants, that the rules can be interpreted so as to
prescribe
that domestic employees are obliged to utilise the bus service
provided to move anywhere on the estate
per
se
, or that their free movement is
otherwise restricted.
[78]
The Applicants raise no complaint as
regards
rule 9.4.2
, which prescribes that no domestic employees may
remain on the estate overnight, unless prior authority has been
obtained from
the Respondent. Their complaint lies against
rule
9.4.1
, which prescribes that all domestic employees must be
registered on an annual basis and that access cards for such
employees will
only be validated for recognised normal business
hours, unless authorised differently by the Respondent, and
rule
9.4.3
, which prescribes that domestic employees will only have access
to the estate between 6 a.m. and 6 p.m., unless otherwise authorised

by the Respondent, and that such employees must swipe their access
cards, or scan their finger on the biometric reader for ingress
and
egress. Nothing is stated in the founding papers regarding why the
Applicants contend that the provisions that domestic employees
must
be registered and must be provided with access cards, or have
biometric access, is unlawful.
[79]
If
one has reference to the various provisions of
rules 6.6.1
and
6.6.2
[58]
, to which the
Applicants raise no complaint, it is evident that access cards, and
now biometric fingerprint reading, are used to
identify individuals
who are entitled to freely enter or exit the estate. The first
sentence of
rule 9.4.1
prescribes a procedure whereby domestic
employees are identified, by way of registration, and are then either
provided with access
cards, or registered on the biometric
fingerprint reader. I cannot see how such a provision can be seen as
being unreasonable or
unlawful if one has regard to the general
scheme of how residents and their authorised invitees gain access to
the estate. Also
bearing in mind the accepted rule that domestic
employees are not permitted to remain on the estate overnight, I
cannot see how
a rule that provides, save for any authorised
variation upon application being made, that domestic employees are
only allowed free
access to the estate between the hours of 6 a.m.
and 6 p.m. and that their access cards or biometric fingerprint
reading will be
programmed accordingly can be unreasonable or
unlawful.
[80]
I am therefore of the view that
rules
9.3.2
,
9.4.1
and
9.4.3
, giving them their literal meaning and
context, merely prescribe a set of procedures to ensure an orderly
ingress and egress of
domestic employees onto and off the estate and
efficient transportation to and from their places of employment.
[81]
There
is a further contention by the Applicants that the Respondent’s
actions in imposing conditions or restrictions on the
residents’
domestic employees constitutes a decision of an administrative nature
and therefore falls to be reviewed in terms
of the Promotion of
Administrative Justice Act, No. 3 of 2000 (“PAJA”).
It is contended that the Respondent has
failed to give the Second
Applicant adequate reasons in writing for the action taken in respect
of his domestic employee and that
its actions in refusing the
Applicant permission for his domestic employees to remain on the
estate until 7 p.m. during the week
also amounts to administrative
action. This issue was dealt with by Olsen J when considering that
challenge to the Respondent’s
conduct rules in
Abraham
v The Mount Edgecombe Country Club Estate Management Association Two
(RF) NPC
[59]
where he came to the conclusion that “
PAJA
finds no application in this case
”
.
I am in agreement with him.  As I have already stated
herein, it is the contractual nature of the relationship between
the
parties that provides the framework in which this application should
be decided and I am accordingly of the view that the Applicants’

submissions that the provisions of PAJA apply ought to be rejected.
There is, in any event, no relief sought in this regard in
the notice
of motion.
[82]
Given
the interpretation that I have placed on the rules under
consideration, I cannot see how they can be considered to be
unlawful.
Although they might irk one’s “
individual
sense of propriety and fairness
”
[60]
,
because of their restrictive and regimented nature, they cannot be
said to be contrary to public policy. In this regard I echo
the
sentiments of Olsen J
[61]
that
the rules cannot be regarded as unduly restrictive or punitive as
they “
stand
as a framework to ‘safeguard’ and promote appropriate,
sensible and fair interaction amongst residents and the
respondent
”
.
They are there to regulate conduct between neighbours and in so doing
must, as of necessity, be restrictive in nature so as to
always take
into account the cumulative rights of use and enjoyment of the estate
by all its residents. It cannot be said that
the “
probability
”
exists
“
that
unconscionable, immoral or illegal conduct will result from the
implementation of the provisions
[of
the rules concerned]
according
to their tenor
”
[62]
.
Should the Respondent however seek to implement the rules in
such a manner, I am confident that a court will refuse to give
effect
thereto. One also has to recognise that they have been agreed upon by
all the residents of the estate in order to “
maintain
a structure within which residents can feel secure as regards the
environment into which they have bought, and as regards
the conduct
reasonably to be expected of their neighbours, and of the respondent
in its capacity as the enforcement authority with
respect to the
rules
”
[63]
.
I am therefore of the view that rules 7.1.2 and 7.3.2 (or more
correctly rule 7.3.1 as it is currently numbered in the August
2013
edition of the conduct rules), rules 2.1, 4.7 and 4.1.8 and rules
9.3.2, 9.4.1 and 9.4.3 of the Respondent’s conduct
rules are
not unlawful and must be given effect to.
The
Counter Application
[83]
In its Notice of Counter-Application, the
Respondent seeks an order that:
“
It
is declared that the first respondent is entitled to suspend the use
of access cards issued to the first applicant, his invitees
and
members of his family, and is entitled to suspend biometric access to
such persons for so long as the two fines totalling R
3 000.00 as
referred to in the first respondent’s answering affidavit in
relation to the first applicant are paid or are
otherwise
extinguished
.”
[84]
It
was submitted on behalf of the Respondent that if the Respondent was
successful in opposing the rules application, the relief
sought in
the counter application flows automatically. In support of this
submission, the Respondent relied on what was stated
in
Abraham
v The Mount Edgecombe Country Club Estate Management Association Two
(RF) NPC
[64]
,
namely that:
“
[
the
]
respondent is the enforcement authority.
If its decision to refuse permission for the keeping of the dog
Theodore on the estate
stands because the application is dismissed,
and I see no reason why, given that the applicants have not yet acted
in accordance
with the decision, the respondent should be denied an
order enforcing the decision
.”
I
am of the view that that logic does not necessarily follow in this
instance. In
Abrahams
,
the court was dealing with rule 5.1 of the Respondent’s conduct
rules, which prescribed that written permission must first
be
obtained from the Respondent before a dog may be brought onto the
estate and that any dog being on the estate in contravention
of the
rules would be removed forthwith. Consideration was therefore given
in that case not only to the prescribed procedure that
had to be
followed to keep a dog on the estate, namely the obtaining of the
Respondent’s permission upon having complied
with the
prescribed criteria, but also the sanction that would be imposed if
permission had not been obtained. It was common cause
that permission
to keep the dog in question had not been so obtained.
[85]
The issue before me is somewhat different.
The rules application encompassed a challenge by the Applicants to
certain specified
rules of the Respondent’s conduct rules. None
of the rules under consideration included a provision that would
entitle the
Respondent to suspend the Applicant’s, or the
members of his family or invitees, use of access cards or biometric
access
to the estate, either as a consequence of the fines in
question not having been paid, or otherwise. As was pointed out by
the Respondent,
and which was in fact common cause, the Applicants’
challenge was only a challenge to the lawfulness of the content of
the
rules specified in the notice of motion. Consideration was
therefore only given to those specified rules and any finding that I

may have made in the rules application relates only to those specific
rules. I am of the view therefore that it does not follow
that a
failure by the Applicants to have those specific rules declared
unlawful would automatically entitle the Respondent to relief
based
on the enforcement of a contractual right that was not contained in
the specified rules themselves. What needs to be considered
is
whether the Respondent has in fact made out a case for the relief
sought in the counter application.
[86]
As
is stated by the Respondent
[65]
,
its “
entire
affidavit in answer
”
stands as its founding affidavit for the purposes of the counter
application. One therefore has to “
tease
out
”
those portions of the Respondent’s answering affidavit that
relate to the issues pertinent to the counter application.
[87]
The
only reference made by the Respondent in its answering affidavit to
any “
powers
to enforce non-compliance with the rules
”
is
with reference to rule 13 of the conduct rules
[66]
.
It is contended by the Respondent that such rule includes “
the
right to ‘suspend access cards for the household concerned
’”
.
What the Respondent “
may
”
do
if a resident fails to comply with the provisions of the rules is
contained in rules 13.1.1 to 13.1.7, which read as follows:
“
13.1.1
call for an explanation and/or an apology from the resident; and/or
13.1.2
impose a reprimand and require the resident to remedy the breach
and/or comply with the relevant rule; and/or
13.1.3
may impose a financial penalty which has to be paid within 14 days
of issue and shall be deemed to be part of the levy
due by the owner;
and/or
13.1.4
withdraw any previously given consent applicable to a particular
matter; and/or
13.1.5
order the resident to pay for damages resulting from non-compliance
with any rule; and/or
13.1.6 take legal
action against the resident for the enforcement of the rule/s; and/or
13.1.7
suspend access cards for the household concerned
.”
The
relief sought by the Respondent in the counter application therefore
must be premised on its rights as set out in rules 13.1.3
and 13.1.7,
as set out above, read with rule 7.1.2
[67]
,
which would entitle it to levy a penalty on any person found driving
in excess of 40 km/h on the estate.
[88]
The
Applicants did not challenge rule 13 in the main application. There
is no contention in the papers before me that the provisions
of rule
13 are unlawful. It was for this reason that no great consideration
was given to them in the main application. If they
are however to
form the basis upon which the Respondent seeks to rely for the relief
sought in the counter application, some consideration
now needs to be
given to the provisions of rule 13.1.3 and 13.1.7. Rule 13.1.3 is
merely a restatement of the powers given to the
Respondent’s
directors in terms of its memorandum of incorporation, with the rider
that any financial penalty imposed must
be paid within 14 days.
[68]
Rule 13.1.7, given its ordinary grammatical meaning, says nothing
more than the Respondent may suspend the access cards for the

household concerned if a resident fails to comply with the provisions
of the rules. It is common cause on the papers that any reference
to
access cards in the conduct rules must also include a reference to
the biometric fingerprint reading system that has now been

introduced.
[89]
Rule
13.1.7 must however be read in context. In order to do so, one has to
have reference to rules 6.6.1 and 6.6.2 of the conduct
rules. Rule
6.6.2 states that access cards may only be issued to persons
permanently residing on the estate, club members, guests,
or persons
authorised to work on the estate. The issuing of access cards to club
members, guests or persons authorised to work
on the estate is
further restricted by other provisions of the rules.  A
non-resident club member may only enter or exit through
gate 5 and
may only gain access to the Club for the purposes of making use of
its facilities
[69]
, a visitor
may only be issued with an access card for a period of no longer than
one month
[70]
, and persons
authorised to work on the estate must be registered with the
Respondent
[71]
.  Save for
producing original identification upon application for an access card
and either being over the age of 18, or possessing
of a valid
driver’s license, no further restriction is imposed on the
issuing of access cards to residents. Rule 6.6.1 states
that access
cards identify both the individual who is the holder thereof and that
person’s authority to “
freely
”
enter
and exit the estate. A suspension of a resident’s access card,
or the biometric fingerprint reading system, would therefore
be a
suspension of that resident’s entitlement to “
freely
”
enter
and exit the estate. It would therefore be a suspension of a right
recognised as being afforded to that person in terms of
the rules.
In order to succeed in its counter application therefore, the
Respondent must make out a case that it is entitled
to suspend such
right.
[90]
By way of “
introduction
”
in its answering affidavit, the Respondent makes reference to the
spoliation application and points out that it was heard
on an urgent
basis on the 1
st
of February 2014. It is further pointed out that the Applicant sought
an order that his card and biometric access to the estate
be
reactivated. It is stated that the Applicant “
dealt
at some length with the merits of what he contended were his rights
to obtain access to the estate
”
but
nothing further is said about what such contentions were. It is then
stated that an interim order was granted whereby the Respondent
was
ordered to reactivate the Applicant’s access and the
rule
nisi
was extended until confirmed or
discharged. The Respondent confirms that it has complied with the
interim order. The Respondent
then goes on to state that it has
opposed the spoliation application, contending that the Applicant has
refused to pay a number
of penalties imposed on him under the conduct
rules and that on account of that non-payment the Respondent is
entitled to refuse
him access to the estate.
[91]
The
Respondent then deals with its method of controlling ingress and
egress to the estate.
[72]
The
Respondent states that there are 3 perimeter gates to the estate,
numbered 4 to 6, with each entrance gate having two lanes
of entry
and exit. In each case one lane is demarcated for visitors and the
other lane is demarcated for owners or their authorised
family
members. Both entrance and exit from the estate is monitored by
guards who are on duty 24 hours a day, 7 days per week.
It is further
pointed out that there are boom gates at all entrances and exits. The
deponent then explains that visitors arriving
at the boom gate are
required to stop and provide the gate guard with a previously
furnished access code, obtained by the owner
concerned. Once the
correct access code is confirmed by the guard, access is permitted to
that visitor. A resident who approaches
the gate, although also being
required to stop, gains access to the estate by swiping his or her
access card, or more recently
utilising the biometric fingerprint
reading system, which then automatically opens the boom gate.  It
is then stated by the
deponent that:
“
[
this
]
controlled
method of entry to owners/members is a means of entry which each such
owner or member is entitled to precisely by virtue
of his/her
membership. It is method which the first respondent has contractually
undertaken to provide and maintain in order to
maximise security
within the estate, and it is a method which the first and second
applicant’s (alongside all other members)
have contractually
agreed to be bound by, on various conditions
”
[73]
,
and that:
“
[
the
]
wide
powers afforded the directors under clause 21.1 of the MOI allows the
directors to take steps as they consider necessary to
remedy the
breach of any rules. This would obviously include taking away a
member’s automatic right of access by means of
swiping a card
or biometric access - a sanction which has, when necessary, been
enforced consistently by the Estate
”
[74]
.
Reference
is then made to an “
illustrative
list
”
which it is contended reflects members whose automatic right of
access has been denied over the past 12 months.
[75]
[92]
The
Respondent then goes on to state that in order to enforce the speed
limits imposed in the estate, it has acquired “
speed
measuring equipment
”
,
which it contends is duly calibrated, certified and operated by a
“
qualified
operator
”
.
The relevant “
calibration
certificates
”
and
“
operator’s
certificate
”
are
then put up as annexures to the affidavit.
[76]
It is then contended that, as such methodology has been approved by
its directors, it is binding on all owners who are members
of the
Respondent.
[93]
The
Respondent then goes on to state that three speeding contravention
notices were issued to the Applicant’s daughter, two
on the
19
th
of October 2013, where she was allegedly travelling at 69 km/h and 65
km/h, respectively, and one on the 29
th
of October 2013 where she was allegedly travelling at 67 km/h. It is
contended that in each instance, a penalty of R 1,500.00 was
imposed
by the Respondent’s board of directors and that the Applicant
was provided with an invoice and statements on a monthly
basis
reflecting such penalties.  The Respondent points out
[77]
that, should any resident be aggrieved by any decision made by the
estate manager, he or she may, having first paid the penalty,
lodge
an appeal to the Respondent’s board within seven days of the
fine being paid. It is also pointed out
[78]
that any fines imposed for a breach of a non-compliance with the
rules, shall be deemed to be part of the levy due by the owner.
It is
then stated that the Applicant appealed against the first two
penalties, imposed on the 19
th
of October 2013, and that one such appeal was successful. No appeal
was lodged against the third. It is therefore contended that
two
penalties remain in place, each for R1,500.00, one for the incident
on the 19
th
of October 2013 and one for the incident on the 29
th
of October 2013.
[94]
It
is then contended by the Respondent that the Applicant has himself
accepted the method employed by it in measuring speed. In
support of
this contention it is stated that the Applicant accepted and agreed
that his daughter was speeding in the infringement
on the 19
th
of October 2013. The Applicant’s email, which the Respondent
contends constitutes his “
notice
of appeal
”
,
is put up in support of such contention.
[79]
It is contended by the Respondent that the Applicant “
accepted
that she had been speeding, but argued in mitigation that she was
faced with a sudden emergency
”
.
It is therefore contended that it is clear that there is no dispute
that the speeding actually took place. It is also contended
that it
is not disputed that the appeal against the second infringement was
dismissed, and that the Applicant did not appeal against
the third
infringement. It is therefore contended that the fines imposed by the
Respondent on the Applicant remain valid and enforceable
and part of
the levies due by the Applicant to the Respondent.
[95]
It is then stated that, in such
circumstances, the Respondent, via its board of directors, decided
that the access cards and biometric
access of the Applicant, and his
household, be suspended. It is stated that this decision was taken
before the interim order was
granted in the spoliation application.
It is then submitted by the Respondent that, as the fines still
remain unpaid, there is
nothing unlawful or impermissible about the
Respondent’s rules in this regard and that it would accordingly
be entitled to
an order authorising the deactivation of the
Applicant’s access cards and biometric access to the estate.
[96]
In
his replying affidavit, which serves as an answering affidavit to the
counter application, the Applicant does not dispute the
institution
of the spoliation application or the granting of the relief as
alleged by the Respondent. The Applicant however disputes
the
“
validity
of the penalties
”
imposed
by Respondent. Save for confirming that he is a member of the
Respondent, the Applicant raises no further issue regarding
the
Respondent’s allegations as to the operation of the boom gates
at the various entrances and their control of ingress
and egress to
the estate. The Applicant also accepts the existence of the
provisions of the memorandum of incorporation referred
to. In
response to the Respondent’s contention that rule 13 affords it
the power to “
suspend
access cards for the households concerned
”
,
the Applicant makes reference to the fact that the introduction
[80]
to the conduct rules provides that the board is only given authority
to make “
reasonable
rules
”
and
that such should “
not
however be seen to be either unduly restrictive or punitive, but
rather as a framework to safeguard and promote appropriate,
sensible
and safe interaction amongst residents
”
on
the estate and with the Respondent.
[97]
It is not disputed by the Applicant that
three contravention notices were issued by the Respondent in respect
of alleged contraventions
of the speeding rule by his daughter on the
dates contended for. The Applicant however denies that the “
speeds
at which she was recorded as travelling
”
are
correct and that the contravention notices were issued in accordance
with the Respondent’s memorandum of incorporation
and conduct
rules. It is also denied that the person operating the Respondent’s
“
speed measuring equipment
”
is trained to calibrate and/or handle the
equipment itself. It is submitted by the Applicant that in any
dispute, whether it be
contractual or based on a statutory penalty
for speeding, he would be entitled to contest the validity of the
calibration of the
speed measuring equipment in a court. It is
contended that the conduct rules prevent such entitlement by
requiring him to pay the
fine before being allowed to appeal the
decision. It is also contended that the person operating the
equipment is not “
empowered
”
to issue contravention
notices
as it is contended that, in terms of the memorandum of incorporation,
such notices have to be issued by the Respondent’s
board of
directors. The Respondent’s contention that the Applicant has
accepted the methods employed by it in measuring speed
and has
accepted and agreed that his daughter was speeding, is denied by the
Applicant.  It is contended by the Applicant
that the Respondent
is “
flaunting the audi alteram
partem principle
”
as the conduct
rules make it impossible for him to dispute the correctness of the
speeding measuring equipment, by having to pay
the fine before
lodging an appeal. As regards the allegation by the Respondent that
its board of directors has decided that his
access cards and
biometric access have been suspended, the Applicant points out that
such decision has not been disclosed in the
papers and he accordingly
denies same.
[98]
For
the purposes of the counter application, there is no dispute between
the parties as to the contractual relationship between
them and as to
the terms of the memorandum of incorporation and the conduct rules
relied on.  Upon a proper reading of rules
6.6.1 and 6.6.2 of
the conduct rules, any resident, for so long as that person is able
to produce original identification and is
over the age of 18 or is in
possession of a valid driver’s license, is entitled to be
issued with an access card or be registered
on the biometric
fingerprint reading system. Upon that card being issued to them, or
their fingerprints being registered on the
system, that person is
then entitled, pursuant to the provisions of the conduct rules, to
freely enter and exit the estate as of
right. The Respondent appears
to accept this, otherwise it would not have stated that “
this
controlled method of entry to owners/members is a means of entry
which each such owner or member is entitled to precisely by
virtue of
his/her membership
”
and
that it is a method which it has “
contractually
undertaken to provide and maintain
”
and
which the Applicant has “
contractually
agreed to be bound by
”
[81]
.
The Respondent also accepts that it is a right that has to be “
taken
away
”
.
[82]
[99]
Rule
13 entitles the Respondent to “
suspend
access cards for the household concerned
”
if
the resident concerned fails to comply with the provisions of the
conduct rules.  I do not see the Respondent as contending
that
the provisions of rule 13.1.7 entitle it to suspend the Applicant’s
access cards or biometric access merely upon it
forming the opinion
that he or she has breached the conduct rules without first having
recourse to a court of law in order to seek
its sanction to do so.
The very institution of the counter application must be seen as an
acceptance by the Respondent that it
is obliged to obtain a direction
from this court before it is entitled to suspend the Applicant’s
access cards and biometric
access as a consequence of his alleged
breach in the present instance. Should the Respondent however be
placing an interpretation
on the rules concerned that it is entitled
to suspend access cards and biometric access merely upon it forming
the opinion that
a resident has breached the conduct rules, or is
endeavouring to implement them in such a manner, I am of the view
that such would
be tantamount to self-help as the only reason why the
access cards and biometric access would be suspended in such
circumstances
would be to coerce the resident concerned into paying
the penalty imposed by it. The Respondent would, in essence, be
imposing
a constraint upon the Applicant’s right to freely
access the estate without having recourse to a court.  It is a
long
established principle that self-help is unlawful and that any
provision in a contract providing for such will not be enforced by

our courts.
[83]
I would
therefore be loath to come to the Respondent’s aid in such
circumstances, if this is in fact what it is contending
for. As this
however appears not to be the case, I am therefore of the opinion
that, in order to be entitled to the relief sought
by it in the
counter application, the Respondent has to establish that there has
been a breach of the conduct rules by the Applicant
and that it would
be entitled, in such circumstances, to an order directing that it may
suspend his access cards and biometric
access to the estate.
[100]
As a starting point, the Respondent would
have to establish that the Applicant’s daughter contravened
rule 7.1.2 by travelling
on the estate, in the present instance on at
least two occasions, at a speed in excess of 40 km/h. Looking at what
is before me
on the papers, the only direct allegation made by the
Respondent regarding the alleged incidents of speeding by the
Applicant’s
daughter is the statement that “
three
contravention notices
”
were
issued to her on the dates alleged. This statement is made by the
Respondent’s CEO and estate manager. Nothing further
is stated
regarding the alleged commission of the contravention of the rules by
the Applicant’s daughter, nor is anything
stated as to how it
was determined that she was in fact travelling at the alleged speed
at the relevant times. There are general
statements as to the
calibration of the instrument alleged to have been used and the
competence of the person alleged to have been
operating it, but
nothing is said by the person who actually determined that she was
travelling at that speed. No affidavit is
put up by the operator
concerned. The three contravention notices are not even put up by the
Respondent. In the light of the aforegoing,
the Applicants simple
denial that his daughter was travelling at the speed alleged, cannot
be criticised. There was nothing alleged
by the Respondent as to the
actual commission of the transgression of the rules that would have
obliged the Applicant to say anything
further.
[101]
The Respondent’s contention that the
Applicant accepted and agreed that his daughter was speeding in his
“
notice of appeal
”
is somewhat confusing. It is the Respondent’s
contention, which is supported by the conduct rules themselves, that
an appeal
can only be lodged once the fine concerned has already been
paid.  It is common cause in the present instance that the fines

themselves have never been paid by the Applicant. I have difficulty
therefore in accepting the Respondent’s contention that
the
email referred to is in fact the Applicant’s notice of appeal.
It would appear that no appeal has in fact taken
place,
certainly not one as prescribed by the conduct rules.  Be that
as it may, if one has reference to the email itself,
it has been
addressed by the Applicant to the Respondent’s compliance and
human resources manager, and appears to be a plea
for that person to
ask the Respondent’s board to cancel the fines. The email
itself refers to a telephone conversation between
the Applicant and
the manager concerned and sets out the circumstances relating to an
incident where the Applicant’s son
was injured and the
Applicant’s daughter had been requested to assist him and then
fetch the son’s medical aid card,
one assumes from the
Applicant’s house on the estate. No reference is made in the
email to the alleged incidents that gave
rise to the contravention
notices being issued to the Applicant’s daughter and no
admission is made in this regard. One simply
cannot, in such
circumstances, draw the inference that the Respondent seeks to
contend for as to the Applicant’s acceptance
that the fines
were properly imposed. Although not denying the issuing of the
contravention notices themselves, the Applicant disputes
that they
were issued in accordance with the Respondent’s memorandum of
incorporation and conduct rules and denies that the
speeds at which
the Respondent contends that his daughter was travelling are correct.
The Applicant, in essence therefore, puts
the commission of the
breach of the conduct rules in issue.
[102]
Where
disputes of fact have arisen in motion proceedings, a final order,
whether it be an interdict or some other form of relief,
may be
granted if those facts averred by the Applicant, which have been
admitted by the Respondent, together with the facts alleged
by the
Respondent, justify such an order.
[84]
In the present instance, it is the facts alleged and admitted by the
Applicant that I must consider for the purposes of determining
the
counter application. It must also be remembered that a denial of a
fact may not be such as to raise a real, genuine or
bona
fide
dispute. In such a case, and in the absence of any application for
the matter to be referred to the hearing of oral evidence, I
am
entitled to proceed on the basis of the correctness of the allegation
and include this fact among those upon which I determine
whether the
relief sought may be granted. In order to do this however, I must be
satisfied as to the inherent credibility of the
factual averment
concerned.
[103]
As I have already stated, there are no
averments in the papers before me as to how it was determined that
the Applicant’s
daughter was travelling on the estate roads at
a speed in excess of 40 km/h. All I have is the allegation by the
Respondent’s
CEO and estate manager that “
three
contravention notices
”
were
issued to the Applicant’s daughter on the dates alleged and
that those contravention notices relate to the alleged speeding

incidents. In the absence of any direct evidence in this regard, I am
not satisfied as to the inherent credibility of the Respondent’s

averment that the Applicant’s daughter was in fact speeding.
Save for the Respondent’s say so, I have nothing before
me that
supports such a contention. I therefore cannot consider it as one of
the facts alleged by the Respondent that have been
admitted by the
Applicant merely because he goes no further than to simply deny it
and provides no positive assertion to the contrary.
I am therefore of
the view that the Respondent has fallen at the first hurdle as it has
failed, on the papers before me, to establish
that the Applicant’s
daughter was in fact speeding as alleged. This being the case, it has
also failed to establish that
the Applicant has breached the conduct
rules as alleged.
[104]
The
Applicant also challenges whether the Respondent’s board of
directors has in fact resolved to suspend his access cards
and
biometric access as no such allegation is made in the application
papers. He accordingly denies that such a resolution has
been passed.
Accepting that the suspension of access cards is one of the remedies
that the Respondent “
may
”
impose
in terms of rule 13, I am of the view that there is some merit in the
Applicant’s submission. One would expect that,
at the very
least, an allegation would be made in this regard by the Respondent.
It also might be said, having regard to the memorandum
of
incorporation
[85]
and
accepting that the Respondent’s directors only have the right
“
to
impose reasonable financial penalties
”
,
that some allegation ought also to be made that the penalties imposed
in the present instance were reasonable in the circumstances.
If they
were not, the Applicant cannot be said to be in breach of the conduct
rules for not having paid them.  In the light
of my finding that
the Respondent has failed to establish that the Applicant’s
daughter was in fact speeding and has therefore
failed to establish
that the Applicant has breached the conduct rules as alleged, I am of
the view that I need not consider these
issues any further.
[105]
I am therefore of the view that the
Respondent has failed to establish that it is entitled to the relief
sought in the counter application.
The
Spoliation Application: Case Number 1118/2014
[106]
A
rule nisi
was granted in this matter on the 1
st
of February 2014 after the application was brought before this court
as one of urgency. In the
rule nisi
,
the Respondent was called upon to show cause, on the 7
th
of February 2014, why an order should not be granted directing it “
to
re-activate the Applicant’s access cards and biometric access
of his family to the Mount Edgecombe Country Club Estate
II
”
,
together with an order directing it to pay the Applicant’s
costs on the attorney and client scale. The order directing the

Respondent to re-activate the Applicant’s access cards and
biometric access to the estate was made an interim order with

immediate effect. The
rule nisi
,
along with the interim relief, was extended on the 7
th
of February 2014 until either confirmed or discharged. The Applicant
now seeks confirmation of that
rule
.
[107]
Although there was initially a dispute over
who owned the four properties referred to in the papers, by the time
the matter was
argued before me such was no longer an issue and it
was common cause that the Applicant was a property owner (through
various companies,
close corporations and trusts) within the estate.
There is also no dispute as to the fact that the Applicant, along
with his immediate
family, consisting of his wife, son and daughter,
resided on the estate and were in peaceful and undisturbed possession
of the
properties occupied by them.
[108]
In a founding affidavit deposed to on his
behalf by his attorney of record, it is alleged by the Applicant
that, on or about the
21
st
of January 2014, the Respondent deactivated his access cards and his
family’s biometric access (via a thumb or fingerprint
on an
electric reader) to the estate. It is stated that the Respondent
dispatched an “
SMS message
”
to the Applicant communicating its decision to
deactivate his access cards and biometric access whilst he was
abroad. The Applicant
alleges that the Respondent’s contention
was that it was entitled to do so on the basis that there was an
unpaid amount on
the Applicant’s levy account, arising from 3
speeding contravention notice issued to the Applicant’s
daughter during
or about October 2013. It is further stated that the
Respondent contended that the deactivation was the standard procedure
followed
in all cases where a member’s levy account is in
arrears.
[109]
The
contents of a letter addressed to the Respondent on the Applicant’s
behalf on the 21
st
of January 2014 is then quoted.
[86]
The letter confirms that the Applicant has received the
notification regarding the deactivation of the access cards and
biometric access and contends that the Respondent has “
unlawfully
deactivated his access to the estate on the basis that you allege
that his account (presumably, his levy account) is
in arrears
”
.
The writer points out that the purpose of the communiqué is
not to deal with the question of the alleged arrears at that
stage,
but rather the unlawful and unconstitutional conduct on the part of
the Respondent in deactivating the Applicant’s
access to the
estate. It is pointed out that the Respondent is a substantial
property owner on the estate and that his “
track
record
”
over
the past 10 years demonstrates that he will honour any and all
commitments on his account. It is pointed out that the Applicant
“
is
however not prepared to and will not pander to your extortive
conduct
”
.
The Respondent is then called upon to give an immediate undertaking
that the Applicant’s access to the estate will be restored.
[110]
The
response to the aforesaid letter is then put up.
[87]
This is an email addressed by the Respondent’s compliance and
HR manager on the 23
rd
of January 2014 in which reference is made to the three speeding
contravention notices issued to the Respondent’s daughter
in
October 2013 and in which it is confirmed that a message was sent to
the Applicant on the 21
st
of January 2014 “
indicating
that his access has been deactivated due to his account being in
arrears
”
and
that “[
these
]
are
the standard procedures followed in all cases where a member is being
advised that his/her account is in arrears
”
.
Reference is then made to the provisions of clause 29.12 of the
Respondent’s memorandum of incorporation and rule 13.1.7
of the
conduct rules.
[88]
The letter
then goes on to state that the Applicant’s and his family’s
access to the estate is not denied. It is pointed
out that his
“
present
access method i.e. access card/biometrics are deactivated, they are
still able to access the estate albeit by filling a
register
”
.
The writer then contends that the Respondent’s actions are in
line with the directions given by its memorandum of incorporation
and
that they are “
neither
illegal nor unconstitutional, but in compliance to the governing
documents in place
”
.
The writer then concludes by stating “
we
would hope that this communiqué would result in him informing
“Nico”
[which
I think is a reference to the Applicant’s son]
to
settle the arrears on his account which would result in the family’s
card/biometrics being reactivated
”
.
[111]
It
is submitted in the founding affidavit that “[
the
]
effect
of deactivating the Applicant’s access cards is that the
Applicant will not be able to enter the Estate as a resident.
The
Applicant and his family will be constrained to enter the Estate
using the visitors’ access, be required to report to
security
and to sign a resident’s register. Normally, a visitor
announces himself to the security gate and the security gate
then
telephones the resident to obtain permission or consent to allow the
visitor onto the Estate. If no-one authorise the entry
onto the
Estate, the visitor is not permitted to enter. Clearly, when the
Applicant and his family members want to access the Estate
to get to
their residence or residences, it is going to happen that there are
times when no-one is at home to authorise access.
The Applicant and
his family return to South Africa on Saturday, 1 February 2014 and
they will proceed directly home. There will
clearly be no-one at home
to authorise their entry. In the circumstances, the Applicant and his
family must rely on the hope and
expectation that, given their long
residence on the Estate, the security personnel will recognise them
and allow them to enter
after signing the residents’ register.
There is no guarantee whatsoever that they will be allowed entry onto
the estate and
access to their home after having travelled for many
hours on an international flight
”
.
[89]
[112]
Under
the heading “
Grounds
for Relief
”
it
is alleged
[90]
that the
Applicant seeks relief under the
mandament
van spolie.
It
is stated that there is no dispute that the Applicant and his
household have been in peaceful and undisturbed possession of their

primary residence on the estate for over a decade and in equivalent
possession of the other properties on the estate since those

properties were first acquired. It is further stated that the
Respondent has not obtained any court order for its actions and has

accordingly resorted to self-help. The Applicant therefore submits
that the Respondent’s actions in suspending his access
cards
and biometric access of his family members amounts to an act of
spoliation, even so, it is contended, where the conduct rules

authorise such action.
[113]
The
Respondent puts up two answering affidavits. The first being a very
short affidavit dealing only with the salient points prior
to the
hearing of the matter on the 1
st
of February 2014 and the second, a more lengthy affidavit dealing
fully with the issues raised in the founding papers. In the first

affidavit, the Respondent alleges that the Applicant owes it the sum
of R 3000.00 in respect of outstanding fines and that it has
advised
the Applicant that his levy account is in arrears and that payment is
expected. The Respondent confirms that the SMS message
was sent to
the Applicant on the 21
st
of January 2014 and makes reference to the aforementioned email
addressed to the Applicant’s attorneys on the 23
rd
of January 2014. The Respondent then makes reference to clauses 20.2,
21.1, 29.12 of its memorandum of incorporation and rules
7.1.2 and
13.1.7 of the conduct rules.
[91]
It then contends that, as the Applicant has failed to timeously
make payment of the outstanding fines, despite numerous requests
and
invoices being sent, it has deactivated the Applicant’s access
cards in accordance with the contractual rights detailed
in the
aforementioned provisions of its memorandum of incorporation and
conduct rules. The Respondent, in any event, disputes that
its
deactivation of the Applicant’s access cards and biometric
access constitutes an act of spoliation. It is submitted that
there
are two lanes of traffic entering the estate, the left-hand lane
which is utilised by residents with access cards, who would
typically
drive through the gate utilising their access cards or placing their
finger against a scanner to automatically raise
the boom, and the
right-hand lane which is utilised by visitors and residents without
access cards. It is alleged that, as the
Applicant’s access
cards and biometric access has been deactivated, the Applicant and
the members of his family would have
to make use of the right-hand
lane and would have to fill in the “
residents
without access cards register
”
prior
to gaining entry. It is therefore contended that, as these gates are
manned 24 hours a day, the Applicant and his family would
still be
able to enter the estate. It is on this basis that it is denied that
the Respondent has committed any act of spoliation.
[114]
In
its further answering affidavit, the Respondent confirms that it has
complied with the interim order and that the Applicant’s
access
cards and biometric access have been reactivated. With reference to
the aforementioned provisions of the memorandum of incorporation
and
conduct rules, it is stated that the Respondent, via its Board of
Directors, decided that the access cards and biometric access
of the
Applicant and his household be suspended. It is confirmed that this
is what took place before the interim order was granted.
The
Respondent then submits that, as the Applicant’s entire
application is based on the
mandament
van spolie
,
he would have to demonstrate that he was dispossessed of something
without his consent by the Respondent. It is contended that,
as is
apparent from the founding papers, the Applicant’s case appears
to be that “
his
manner of access through the gates per se amounts to possession of
something, and when his cards and biometric access was deactivated,

that possession was taken away from him
”
.
It is contended that the Applicant has been untruthful, as the only
effect of deactivating the cards and biometric access is that
the
Applicant would have to stop at the boom gate and complete a register
before being allowed in.  It is alleged that in
all cases he and
his household, and anyone else previously entitled to access as a
resident, would as a matter of course be allowed
through.
[92]
It is then submitted that the properties owned by the Applicant
on the estate, whether owned by him or through legal
entities, are
the only thing that the Applicant can ever claim to have been in
possession of and that possession of these properties
was never taken
away or interfered with.  The Respondent then submits that its
method of controlling access in and out of
the estate can never be
something which the Applicant was in possession of. It is stated that
the Applicant’s entitlement
to access the estate by the use of
a card or biometric scanning is based on contract, the Respondent
having agreed with its members
to provide them with that benefit on
terms and conditions, one of which is that it can be taken away if
levies are unpaid. It is
submitted that the relief sought by the
Applicant is in effect enforcement of the contractual right to make
use of a particular
method to gain access to the estate. It is
contended that this is a contractual dispute, and on the Applicant’s
own version,
he is in arrears in his levies and the Respondent is
entitled to deactivate the card and biometric scanning.
[115]
In response to this, it is submitted by the
Applicant that the Respondent, in deactivating of the access cards
and biometric access,
committed an act of spoliation in respect of
the peaceful and undisturbed possession by him and his family over
access to their
property within the estate, including the common
property. It is contended that he has been advised that interference
with customary
access, is, in law, interference with the right of
access of which he was in possession. Such possession was manifest by
his family’s
daily use of such access in an unhindered manner.
It is further contended that the Respondent, in instituting the
counter application
in the rules application, has made a “
blatant
concession
”
that it is not
entitled to unilaterally deactivate the access cards and suspended
biometric access for him and his family.
[116]
It
is contended by the Applicant that he seeks relief under the
mandament
van spolie.
“
Spoliation
”
is defined by Innes CJ in the case of
Nino
Bonino v De Lange
[93]
as “
any
illicit deprivation of another of the right of possession which he
has, whether in regard to movable or immovable property or
even in
regard to a right
”
.
If one has reference to the notice of motion, the relief sought by
the Applicant goes no further than to demand the reactivation
of his
access cards and the biometric access of his family to the estate.
Save for costs, no other relief is sought.  This
form of relief
has been described as “
classically
spoliatory
”.
[94]
Although a spoliation order does not decide what, apart from
possession, the rights of the parties to the property spoliated
were
before the act of spoliation took place, and merely orders that the
status
quo
be restored, it is to that extent a final order and the same amount
of proof is required as for the granting of a final interdict.
In
order to succeed, an Applicant must satisfy the court on the admitted
or undisputed facts by the same balance of probabilities
as is
required in every civil case, of the facts necessary for his or her
success in the application.
[95]
[117]
In
the present instance, it is admitted by the Respondent that the
Applicant, and his immediate family, are resident on the estate
and
were in possession of “
activated
”
access cards and biometric access as at the 21
st
of January 2014, which is the date it is contended that such cards
and biometric access were deactivated by the Respondent. It
is also
admitted by the Respondent that it deactivated both of the access
cards and biometric access as alleged by the Applicant.
It is also
common cause that the Respondent did not have recourse to a court of
law before deactivating the cards and biometric
access as aforesaid.
At face value therefore, the Respondent has admitted all the facts
that the Applicant would have to establish
in order to obtain relief
under the
mandament
van spolie
.
The enquiry does not however stop there.  As a starting point,
the Respondent appears to challenge whether its deprivation
of the
Applicant exercising his right of access is in fact illicit.  It
appears to contend that, by virtue of the provisions
of its
memorandum of incorporation and conduct rules
[96]
,
it was entitled to suspend the access cards and biometric access upon
the Applicant’s levy account being in arrears without
recourse
to a court of law.  It also challenges whether the act of
deactivating the access cards and biometric access is in
fact an act
of spoliation, as the Applicant, and his immediate family, have an
alternate method of gaining access to the estate
by using the
“
visitors
lane
”
and
signing the “
residents
without access cards register
”
.
It is further contended by the Respondent that the only thing that
the Applicant can ever claim to have been in possession of
are the
properties that he owns on the estate and such possession has never
been taken away or interfered with. The Respondent
therefore contends
that the relief sought by the Applicant is in fact the enforcement of
a contractual right to make use of a particular
method to gain access
to the estate and is not spoliatory in nature. These issues therefore
needed to be considered.
[118]
I am of the view that it would be prudent
to consider the Respondent’s last challenge first, as should
the exercising of the
right contended for by the Applicant not be one
recognised as entitling him to spoliatory relief, that would be the
end of the
matter. Although the actual mechanism by which the access
card or biometric reader operates has not been fully described in the

papers, it is apparent that the card is of a magnetic nature and
would be swiped through a “
reader
”
which would, in turn, generate some electric pulse
to cause the boom gate to open. I assume that the same principle
would apply
once the scanner reads a fingerprint. Although nothing
has been said in this regard, I assume that the Applicant and his
family
are still in possession of the access cards themselves as it
is only the “
deactivation
”
thereof that has been complained of. It goes
without saying that the Applicant and his family must still be in
possession of their
fingerprints.  It is not contended therefore
by the Applicant that he has lost possession of any corporeal object.
What the
Applicant complains of is that the effect of deactivating
his access cards and biometric access is that he, and the members of
his family, will not be able to enter the estate “
as
a resident
”
. The Applicant is
therefore contending for the illicit deprivation by the Respondent of
the exercising, or “
quasi-possessio
”
,
of his right to enter the estate in such capacity.
[119]
The
possession of incorporeal rights is protected against spoliation by
the
mandement
.
[97]
The
mandement
van spolie
is not concerned with the protection or restoration of rights, but
the restoration of the factual possession of which the
spoliatus
has been unlawfully deprived. What is protected by the remedy is the
actual performance of acts, which if lawfully performed, would

constitute the exercise of the right in question.
[98]
This much is confirmed in the case of
Telkom
SA Ltd v Xsinet (Pty) Ltd
,
where the following is stated:
[99]
“
Originally,
the mandament only protected the physical possession of movable or
immovable property. But in the course of centuries
of development,
the law entered the world of metaphysics. A need was felt to protect
certain rights (tautologically called incorporeal
rights) from being
violated. The mandament was extended to provide a remedy in some
cases. Because rights cannot be possessed,
it was said that the
holder of a right has 'quasi-possession' of it, when he has exercised
such right. Many theoretical and methodological
objections can be
raised against this construct, inter alia, that it confuses
contractual remedies and remedies designed for protecting
real
rights. However, be that as it may, the semantics of
'quasi-possession' has passed into our law. This is all firmly
established.
”
[100]
[120]
The
remedy has been succinctly stated in
FirstRand
Ltd t/a Rand Merchant Bank and Another v Scholtz No and Others
[101]
as follows:
“
The
mandement van spolie is a remedy to restore to another ante omnia
property dispossessed 'forcibly or wrongfully and against
his
consent'. It protects the possession of movable and immovable
property as well as some forms of incorporeal property. The mandement

van spolie is available for the restoration of quasi-possessio of
certain rights and in such legal proceedings it is not necessary
to
prove the existence of the professed right: this is so because the
purpose of the proceedings is the restoration of the status
quo ante
and not the determination of the existence of the right.  The
quasi-possessio consists in the actual exercise of
an alleged right
…….
The
mandement van spolie does not have a 'catch-all function' to protect
the quasi-possessio of all kinds of rights irrespective
of their
nature.  In cases such as where a purported servitude is
concerned the mandement is obviously the appropriate remedy,
but not
where contractual rights are in dispute or specific performance of
contractual obligations is claimed:  its purpose
is the
protection of quasi-possessio of certain rights. It follows that the
nature of the professed right, even if it need not
be proved, must be
determined or the right characterised to establish whether its
quasi-possessio is deserving of protection by
the mandement. Kleyn
seeks to limit the rights concerned to 'gebruiksregte' such as rights
of way, a right of access through
a gate or the right to affix a
nameplate to a wall regardless of whether the alleged right is real
or personal. That explains why
possession of 'mere' personal rights
(or their exercise) is not protected by the mandement. The right held
in quasi-possessio must
be a 'gebruiksreg' or an incident of the
possession or control of the property.
”
[121]
The
exercise of the right contended for by the Applicant is not in
dispute. There is no dispute that the Applicant, and his immediate

family, freely entered and exited the estate through the boom gates
utilising either their access cards or the biometric fingerprint

scanner. The nature of the professed right contended for by the
Applicant needs however to be determined or characterised to
establish
whether his
quasi-possessio
of it is deserving of protection by the
mandement
.
It is evident from what is quoted above that the remedy is confined
to the protection of possession, which is a right in
property, and is
not to be extended to the protection of personal rights. It is not an
appropriate remedy where contractual rights
are in dispute or
specific performance of a contractual obligation is claimed.
[102]
It is thus only rights to use or occupy property, or incidents of
occupation or control of property, that will warrant protection
under
the
mandement
.
[122]
In
the case of
Impala
Water Users Associations v Lourens N.O. and Others
,
[103]
the Respondents had successfully obtained an order in the court a quo
directing the Appellant, which was a water user association
in terms
of
section 98
(6) (a) of the
National Water Act, No. 36 of 1998
, to
remove locks, chains and welding from certain sluices, which allowed
the flow of water onto farms owned by them, and to restore
the flow
of water through such sluices to reservoirs on the Respondents’
respective farms. Relying on the decision in
Telkom
SA Ltd v Xsinet (Pty) Ltd
,
[104]
it was argued on behalf of the Appellant on appeal that the right to
receive water upon which the Respondents relied were merely
personal
rights resulting from the contract that had been concluded between
the parties. In terms of that contract, each Respondent
had become a
member of the Appellant and acquired the privileges of membership,
especially the privilege to receive water in exchange
for the
performance of membership obligations, which included, the payment of
the charges raised in respect thereof. In dealing
with this argument,
it was pointed out by the court that each of the Respondents had been
entitled to rights under the previous
Water Act, No. 54 of 1956,
which rights were registered in terms of that Act and were clearly
not merely personal rights arising
from contract. It was also pointed
out that each of the Respondents had, by virtue of the provisions of
the Appellant’s constitution,
become its founding members. The
court was therefore of the opinion that the rights to water which
belonged to the individual Respondents
under the previous Water Act,
insofar as they were replaced or subsumed by the provisions of the
current
National Water Act, could
not be described as mere personal
rights resulting from the contract concluded with the Appellant. The
court was therefore of the
view that the water rights in question
were linked to and registered in respect of a portion of each farm
used for the cultivation
of sugar cane, which was dependent on the
supply of the water forming the subject matter of the right. It was
therefore held that
the use of the water was accordingly “
an
incident of possession of each farm
”
which
was, in the court’s view, interfered with by the actions of the
Appellant.
[105]
[123]
The
issue of the narrowing of an entrance to a parking lot, so as to
preclude the Applicant from effectively gaining access to a
parking
bay over which it had control, was considered in the case of
Pinzon
Traders 8 (Pty) Ltd v Clublink (Pty) Ltd and Another
.
[106]
The Applicant was a supermarket operator who had leased premises in a
shopping mall from the First Respondent and operated a supermarket

business therefrom. The written lease included a designated loading
bay in close proximity to the supermarket’s refrigeration

rooms, butchery and bakery. Access to this loading bay was gained
from the street. The Applicant utilised the designated loading
bay to
receive bulk deliveries of meat and flour conveyed in 8-ton trucks,
and the like. The parking area was also used by other
tenants of the
building, who occupied office premises. These tenants complained to
the First Respondent about inconvenience to
them and their clients
caused by deliveries made to the designated loading bay. As
correspondence and meetings failed to resolve
the issue with any
success, the First Respondent built walls across each side of the
entrance to the parking area so as to effectively
permit only cars or
light delivery vehicles being able to gain access to the parking area
and the designated loading bay. The Applicant
then brought an urgent
application for a spoliation order requiring the First Respondent to
remove the walls to the entrance to
the parking area. In opposition
to such application, the First Respondent contended
[107]
that the Applicant’s use of and access to the loading bay was
not an incident of its possession of the supermarket, but was
an
entirely separate contractual right which could not be enforced by a
spoliation order. In rejecting this argument, the court
found that,
on the facts of the case, the Applicant was in possession of the
designated loading bay, although it might not have
been in possession
of the parking bays generally situated within the parking area. The
loading bay had been designated for the
supermarket, and the
supermarket alone. It was then held that access to the loading bay
from the entrance was an essential ingredient
of the Applicant’s
possession of the supermarket, as without it, it could not conduct
its business. In distinguishing the
facts of this case from the case
of
De
Beer v Zimbali Estate Management Association (Pty) Ltd and
Another
,
[108]
the court held that access to the designated loading bay through the
parking lot and the entrance was inextricably and inseparably

connected with the possession of the loading bay and the premises of
the supermarket beyond it. In drawing a comparison with the
facts in
Nienaber
v Stuckey
,
the court held that access to the parking lot from the street was
much the same as access through a gate which was, in effect,
regarded
as a necessary incident of the possession of the lands beyond.
[124]
In
the present instance there is no dispute that the Applicant is the
owner of various properties within the estate and that he,
and the
members of his immediate family, were in free and undisturbed
possession of such properties, or at the very least, of the
property
in which they resided. It is also not disputed that the Applicant, as
owner, would be entitled to access to these properties
in order to
exercise his rights of control and possession thereof. It is also
common cause, and I was advised by counsel representing
both parties
to treat such as same, that the roads laid out on the estate are
public roads. All things being equal therefore, the
Applicant, and
the members of his family, would, as of right, be entitled to utilise
such road network to gain access to their
property or properties. If
one has reference to the Respondent’s conduct rules
[109]
they appeared to be designed to restrict unauthorised access to the
estate and not authorised access.
Rule 6.6.2
states that access cards
may only be issued to persons permanently residing on the estate,
club members, guests, or persons authorised
to work on the estate.
The issuing of access cards to club members, guests or persons
authorised to work on the estate is restricted
by other provisions of
the rules.  A non-resident club member may only enter or exit
through gate 5 and may only gain access
to the Club for the purposes
of making use of its facilities,
[110]
a visitor may only be issued with an access card for a period of no
longer than one month,
[111]
and persons authorised to work on the estate must be registered with
the Respondent
[112]
. Save
for producing original identification upon application for an access
card and either being over the age of 18, or possessing
of a valid
driver’s license, no restriction is imposed on the issuing of
access cards to residents.
Rule 6.6.1
in fact states that access
cards identify both the individual who is the holder thereof and that
person’s “
authority
to freely enter/exit
”
the
estate. The conduct rules themselves therefore acknowledge that a
resident, by virtue of his or her ownership or possession
and control
of a property within the estate, is entitled to unrestricted access
to the estate. This is in distinction to the qualified
access that is
afforded to non-residents, as outlined above. It is the exercising of
this right to free and unrestricted access
to the estate, “
as
a resident
”
,
that the Applicant contends he and his family have been illicitly
deprived of by the Respondent as a consequence of the deactivation
of
their access cards and biometric access. If one accepts that the
Applicant and his family are entitled to freely enter and exit
the
estate so as to gain access to the properties which they own or
occupy, one has to accept, based on the authorities referred
to
above, that the exercise of their right to do so must be an incident
of their possession or control of such properties. I am
therefore of
the view that the illicit deprivation of the
quasi-possessio
of the right contended for by the Applicant is protected by the
mandement
van spolie
.
I do not agree with the Respondent’s submission that the
Applicant is merely seeking to enforce a contractual right
to make
use of a particular method to gain access to the estate.  He is
entitled to seek relief under the
mandement
in the present instance. I am supported in this view by the decision
in
Fisher
v Body Corporate Misty Bay
[113]
where, in also dealing with an instance where the Applicant was a
home-owner in a gated community and had also had his access disk

deactivated, it was held that:
“
[
access
]
that is intended to retain possession or
use of property should be found to be protected under the principle
of mandement van spolie.
Therefore, any limitation of access that
would curtail the Applicant’s possession or use of the house
….. should be
found to amount to spoliation
”
.
[125]
The Respondent’s contention that the
Applicant and his family have an alternate method of gaining access
to the estate by
utilising the “
visitors
lane
”
and by signing the
“
residents without access cards
register
”
appears to be in
conflict with the provisions of its conduct rules. If one has
reference to
rule 6.10.1
, it prescribes that:
“
[
any
]
resident who wishes a visitor to enter the
Estate, must phone the Control Room to register that visitor, obtain
a reference number
and confirm that the visitor is listed on the
Visitor Log. Alternatively, the residents may use the SMS system to
perform the above
function
”
.
Rule
6.10.2
then prescribes that the “
reference
number may only be used to enter/exit the Estate once
”
.
Rule
6.7
then prescribes that:
“
Every
resident shall stop at all security control gates and then proceed by
operating his or her access card. Should the resident
not be in
possession of his or her access card then the member may only proceed
on being allowed to do so by the guard on duty
after signing the
‘Residents without Access Card’ register
”
.
What
is glaringly obvious from the above rules is that no provision is
made for a resident who is in fact in possession of his or
her access
card, but whose card has been deactivated. If one takes heed of the
provisions of
rule 6.1
, which prescribes that “[
all
]
current security procedures must be
strictly observed at all times by all persons on Estate 2
”
,
there appears to be some merit in the Applicant’s submission
that he and his family would not, should the provisions of
the
conduct rules be adhered to, be able to gain access to the estate on
any occasion when no-one was at home in order to obtain
a “
visitor’s
reference number
”
as prescribed
in
rule 6.10.1.
[126]
Be
that as it may, and accepting that the Applicant could gain access to
the estate via the “
residents
without access card
”
procedure, this does not detract from the fact that having to utilise
such a procedure would “
affect
or disturb
”
the exercising of the right that the Applicant and his family have to
free and automatic access to the estate by using their
access cards
and biometric access. What was stated in
Nienaber
v Stuckey
[114]
was that what needs to be established is “
anything
which touches or affects or disturbs the possession and not …..
complete deprivation
”
.
This was accepted in
Gowrie
News Investments CC v Calicom Trading 54 (Pty) Ltd and Others
[115]
where it was held that, although the Applicant retained a right of
access to the premises possessed by it through an alternate
door, the
boarding up of the access then utilised “
disturbed
the manner of exercising possession of, and access to and from, the
premises
”
.
I am therefore of the view that the contention by the Respondent that
the Applicant and his family have another means of accessing
the
estate does not afford it a defence to this application.
[127]
I
shall now consider the Respondent’s contention that it has not
unlawfully suspended the Applicants access cards and biometric
access
to the estate as it has acted in accordance with the provisions of
its memorandum of incorporation and conduct rules. I
have already
expressed my views herein as to whether the Respondent would be
entitled to suspend the access cards and biometric
access upon the
Applicant’s levy account being in arrears without recourse to a
court of law.
[116]
It
is a long established principle that self-help is unlawful and that
any provision in a contract providing for such will
not be enforced
by our courts.  Although dealing with the statutory provisions
that allowed for the seizure and sale of a
defaulting debtor’s
property by the North West Agricultural Bank, the following was
stated in the case of
Chief
Lesapo v North West Agricultural Bank and Another
:
[117]
“
A
trial or hearing before a court or tribunal is not an end in itself.
It is a means of determining whether a legal obligation exists
and
whether the coercive power of the State can be invoked to enforce an
obligation, or prevent an unlawful act being committed.
It serves
other purposes as well, including that of institutionalising the
resolution of disputes, and preventing remedies being
sought through
self help. No one is entitled to take the law into her or his own
hands. Self help, in this sense, is inimical to
a society in which
the rule of law prevails, as envisioned by
s 1(c)
of our
Constitution, which provides:
'The
Republic of South Africa is one, sovereign, democratic State founded
on the following values:....
c)
Supremacy of the Constitution and the rule of law.'
Taking
the law into one's own hands is thus inconsistent with the
fundamental principles of our law.”
In
Barkhuizen
v Napier
[118]
the following was stated by the Constitutional Court:
“
Our
common law has always recognised the right of an aggrieved person to
seek the assistance of a court of law. Courts have long
held that a
term in a contract that deprives a party of the right to seek
judicial redress is contrary to public policy. The one
occasion which
comes to mind when this was said is in Schierhout v Minister of
Justice [
[119]
].
On that occasion the Appellate Division, as the Supreme Court of
Appeal was then known, held that:
'If
the terms of an agreement are such as to deprive a party of his legal
rights generally, or to prevent him from seeking redress
at any time
in the Courts of Justice for any future injury or wrong committed
against him, there would be good ground for holding
that such an
undertaking is against the public law of the land.'
Terms
in a contract that deny the right to seek the assistance of a court
were considered to be contrary to public policy and thus
contrary to
the common law
.”
[128]
The
provisions of
section 59
(3) (b) of the
National Water Act
[120
]
were considered by the Supreme Court of Appeal in
Impala
Water Users Associations v Lourens N.O. and Others
[121]
.
The relevant provisions of the said Act read as follows:
“
If
a water use charge is not paid-
(a)
interest is payable during
the period of default at a rate determined from time to
time by the
Minister, with the concurrence of the Minister of Finance, by notice
in the Gazette; and
(b)
the supply of water to the water user from a waterwork or the
authorisation to use
water may be restricted or suspended until the
charges, together with interest, have been paid.
”
Having
found that the court a quo had correctly held that a right capable of
protection by spoliation proceedings had been interfered
with in that
case, the court found it necessary to consider whether such
interference was to be regarded as lawful, by virtue of
the aforesaid
provisions of the Act, so that no spoliation can be held to have
taken place. In considering whether the court a
quo had correctly
found that the onus rested on the appellant (the Respondent in the
court a quo) to show that its actions were
covered by the aforesaid
provisions of the Act, the court cited with approval what was said in
the case of
George
Municipality v Vena and Another
[122]
that “[
it
]
is
a fundamental principle of our law that a person may not take the law
into his own hands and a statute should be so interpreted
that it
interferes as little as possible with this principle
”
.
The court then agreed with the judge in the court a quo that the
aforesaid provisions of the Act can only be invoked when
the water
use charge, the non-payment of which triggers the power to restrict
the supply of water to the user, is legally payable.
[129]
I
am of the view that the same principle would apply in the present
case. In order for the Respondent to show that it was legally

entitled to suspend the Applicant’s access cards and biometric
access to the estate in terms of the provisions of the conduct
rules
it would have to show that the Applicant has in fact breached such
rules. In order to do so, the Respondent would also have
to show that
the amount it contends is due by the Applicant is legally payable.
The only way the Respondent would be able to do
so is by having
recourse to a court of law to make such a determination. The
Respondent has not done so and appears to contend
that the suspension
of a resident’s access card is “
standard
procedure
”
where
a member “
is
being advised
”
that
his or her account is in arrears. The only conclusion one can come to
is that the Respondent is employing the provisions of
rule 13.1.7. of
the conduct rules as a remedy of self-help in order to procure
payment of the levies alleged to be outstanding
from the residents on
the estate without actually having recourse to a court of law to
determine that such amounts are in fact
due, owing and payable. This
is apparent from what is stated in the email addressed to the
Applicant on the 23
rd
of January 2014
[123]
,
wherein the Respondent expresses the hope that the communiqué
would result in the payment of the arrear levy so as to “
result
in the family’s card/biometrics being reactivated
”
.
I am therefore of the view that the Respondent’s contention
that it has legally suspended the Applicant’s access cards
and
biometric access to the estate by operation of the provisions of its
memorandum of incorporation and conduct rules is without
merit.
[130]
I am therefore satisfied that the Applicant
is entitled to confirmation of the
rule
nisi
granted by this court on the 1
st
of February 2014.
The
Trespass Application: Case Number 4375/2014
[131]
This application was brought, as one of
urgency, on the 8
th
of April 2014. The matter was struck off the roll on that occasion
for lack of urgency and the Applicant was directed to pay the
costs.
The Applicant sought a
rule nisi
to be issued calling on the Respondent to show cause why an order
should not be granted:
(a)
directing the Respondent and all persons
acting through, with or on its instructions to allow access to the
estate to certain named
employees of Alexander Garuth for the
purposes of finalising the replacement of all the windows and window
frames in the building
and outbuildings situated on the property
known as 3 Harvard Hill, MECCE2, Mount Edgecombe, KwaZulu-Natal;
(b)
interdicting the Respondent and all persons
acting through, with or on its instructions, from preventing,
interfering with or otherwise
hindering the aforementioned named
employees from finalising the replacement of all the windows and
window frames in the building
and outbuildings situated on the
aforementioned property; and
(c)
interdicting and restraining the
Respondent, and all persons acting through, with or on its
instructions, from entering upon four
properties within the estate,
namely, 48 Columbia Crescent, 50 Columbia Crescent, 3 Harvard Hill
and 7 Harvard Hill, without an
order of this court authorising the
Respondent and such persons to enter upon such properties.
[132]
It is evident from the papers, and which
was confirmed by counsel before me, that the relief sought in
subparagraph (a) and (b)
above has become academic, as, after the
matter was struck from the roll as aforesaid, access to the estate
was allowed to the
said employees and the works being carried out on
the windows and window frames at the said property was completed. I
am asked
not to make any finding in this regard, save to make a
determination whether the relief sought in those prayers ought to
have been
granted, but for the matter being struck from the roll, for
the purposes of determining costs. The relief sought in subparagraph

(c) however remains pertinent and I asked to make a finding in this
regard.
[133]
It is common cause that the four named
properties are those owned by the Applicant, albeit through various
legal entities. In support
of the relief sought in subparagraph (a)
and (b) above, it is alleged by the Applicant in his founding
affidavit that the property
situated at 3 Harvard Hill (“the
property”) was in urgent need of maintenance as the doors and
windows required stripping
and repainting. Pursuant to the provisions
of the conduct rules, the Applicant requested, and received,
permission from the Respondent
to engage the services of a
contractor, Alexander Garuth, to attend to the aforesaid maintenance.
The works to be carried out was
stated as the painting of the
exterior of the house, wooden doors and wooden window frames. When
the works commence, it was determined
that the wooden windows were so
badly rotten that the contractor deemed them to be beyond repair and
advised that they needed to
be replaced. The Applicant then gave the
contractor an instruction to replace the wooden windows in the
dwelling with aluminium
windows of the same design and colour, so as
not to offend against the Respondent’s conduct rules. It is
common cause that
on the 27
th
of March 2014 an email was sent to the Respondent requesting
permission for the contractor to add additional labourers to the list

of approved contractors, who had already been given permission to
enter the estate, so as to attend to the additional work. It
is also
common cause that a response was received on the same day advising
that the Respondent would acquiesce to such request
on condition that
such additional labourer “
related
to painting only
”
.
[134]
On the 7
th
of April 2014, and when the works had reached a stage where the
aluminium windows had been fitted into the window apertures but
where
plastering and sealing of the aluminium frames was incomplete, the
Applicant received an email from the Respondent contending,
inter-alia
,
that upon a “
routine inspection
”
of the estate, the Respondent’s planning and
aesthetics manager had noticed that the windows and doors of the
property had
been changed without plans or approval from the
Respondent or the local authority. It was pointed out by the
Respondent that the
approved works on the property were solely for
the purposes of painting the building, windows and doors. The
Respondent then advised
that it would not allow the contractors
access to the property until such time as plans had been submitted
for the work being carried
out.
[135]
It
is alleged by the Applicant that he has, at the very least, a
prima
facie
right to attend to the replacement of the wooden windows on his
property with aluminium framed windows. He further contends that
the
conduct rules do not prevent him from attending to the maintenance
and upkeep of the property, and that they in fact encourage
it. He
then submits that he has a
prima
facie
right to have the contractors authorised by the Respondent attend to
the maintenance of his property. Reference is made,
inter-alia
,
to rules 2.1
[124]
, dealing
with design and construction procedures, and rule 6.11.2, dealing
with the registration of contractors undertaking works
on the estate.
The Applicant accepts that, by virtue of the provisions of rule
2.1.1, the design and construction of all new buildings,
extensions,
alterations to existing buildings, swimming pools, fences and gardens
must be approved by the Respondent. He also accepts
that rule 2.2.3
provides that no construction or installation shall commence prior to
the requisite approval of the Respondent.
The Applicant however
points out that the provisions of rule 2.10 provide that an owner or
resident must properly maintain the
exterior of his or her unit and
that failure to do so may lead to the Respondent giving that resident
notice to carry out the necessary
repairs within a specified time.
It is however contended by the Applicant that the replacement
of rotten wooden window frames
with aluminium framed windows is done
in the course of maintaining the property and can never be considered
as an extension or
alteration of the existing building. The Applicant
further contends that, in any event, the balance of convenience
favours the
granting of an interim interdict as the installation of
the aluminium windows is near completion and the present state of the
construction
has a negative effect on the uniform aesthetics of the
estate, as it appears that his house is not properly constructed.
[136]
In
support of the relief sought interdicting the Respondent, and its
representatives, from entering upon his properties without
a court
order, it is alleged by the Applicant in his founding affidavit that
the email addressed by the Respondent on the 7
th
of April 2014, advising him that access would be denied to the
contractors, was “
an
act of reprisal
”
to
a publication in a national newspaper where the dispute between the
parties forming the subject of the “
rules
application
”
and the “
spoliation
application
”
had been highlighted. If one has reference to the email itself
[125]
it is,
inter-alia
,
stated therein by the Respondent’s planning and anaesthetics
manager that “[
this
]
afternoon
I did a routine inspection of the Estate and have noticed that
windows and doors have been changed without plans or any
approval
from either Meccema Two or eThekwini Municipality
”
.
It is submitted by the Applicant that he, as owner, is entitled to
determine who can and who cannot enter upon his property. It
is
pointed out that the property is freehold and not part of the
sectional scheme within the estate. The Applicant goes further
to say
that the Respondent has shown “
that
it will stoop at deplorable lows in seeking retribution for the
declaratory publication and its attendant publicity
”
and
that the Applicant’s aforesaid manager “
has
already indicated that on a ‘routine inspection’ he
discovered that the windows on the property were being replaced
”
.
The Applicant then alleges that he fears that the next step taken by
the Respondent “
will
be to snoop around the … properties looking to raise any
issue, no matter how weak, that they can attempt to penalise
me for
”
.
It is for this reason, so the Applicant submits, that he advised the
contractors not to attend the property as he fears that the

Respondent “
will
continue to victimise me by patrolling the … properties
”
.
He then submits that “[
such
]
conduct
must be stopped
”
.
[137]
In
response to these allegations, the Respondent, in its answering
affidavit, confirms that, by the beginning of June 2014, the

substance of the application and the need for the order sought by the
Applicant had fallen away and had become academic as the
Applicant
had made application for, and had received permission to complete the
works pertaining to the installation of the aluminium
framed windows.
The Respondent then makes reference to, and annexes
[126]
,
an exchange of correspondence between the parties’ legal
representatives on the 13
th
and 23
rd
of June 2014, respectively. It is suggested in that exchange by
Respondent’s representatives that the furtherance of
proceedings
would “
simply
run up costs unnecessarily
”
.
The representative then advises that the Respondent would not be
delivering an answering affidavit and would oppose any attempt
by the
Applicant to set the matter down for hearing. In their response, the
Applicant’s representatives, while accepting
that the works had
been complete, contended that such had been completed without
prejudice to the Applicant’s rights and
that he was entitled to
proceed with these proceedings. The Respondent was then called upon
to file an answering affidavit.
[138]
In response to the Applicant’s
allegations relating to the access interdict, the Respondent points
out that any permission
granted for the access of construction
workers onto the estate was for the purpose of painting. It is
pointed out that the Respondent
was not informed that the nature of
the works to be carried out by the contractors was going to change
from that of repainting
to that of replacing the windows or altering
them from wood to aluminium. It is submitted that the Applicant
“
deliberately concealed
”
the nature of the additional work to be carried
out and that there can be no misunderstanding on his part that the
Respondent was
under the erroneous impression that it was allowing
access to contractors based on a non-disclosure.  It is
contended that
the “
replacement of
wooden windows with aluminium windows is an alteration to the
property and required the Respondent’s prior
approval
”
.
It is alleged that, despite the Applicant’s contention to the
contrary, the new aluminium windows do not look exactly the
same as
the old wooden windows and that such accordingly constitutes an
alteration into the property, which would require its prior
approval.
[139]
As far as the Applicant’s allegations
relating to the Respondent’s representatives “
snooping
around
” his property are
concerned, whether in the past or the future, such are denied. The
Respondent then goes further to state
that, in any event, it is
lawfully entitled to access the property by virtue of a memorandum of
lease allegedly concluded between
the parties. No lease is in fact
annexed to the papers, but only a copy of a document which is
purported to be a specimen thereof.
It is contended by the Respondent
that such a document is signed by every purchaser of property on the
estate as a condition of
sale.  The Respondent then goes on to
state that, by virtue of the terms of the lease, it is afforded a
lease over all portions
of each and every erf on the estate, save for
those portions occupied by any building or enclosed by walls.
[140]
Although
styled in the form of a
rule
nisi
,
the relief sought by the Applicant in the notice of motion is final
in form. Although interim relief would have been granted pending
the
determination of the
rule
,
the effect of such relief, if granted, would be that the contractors
would have been allowed access to the estate until such time
as the
works had been completed and the windows and window frames replaced.
The same applies to the trespass interdict, as, if
granted, the
Respondent and its representatives would not, at all times in the
future, be entitled to enter upon the Applicant’s
property
without prior authorisation of a court order. I am therefore of the
view that the Applicant would have had to established
the requisites
of a final interdict in order to be successful in either forms of
relief sought.
[127]
[141]
The Applicant’s contention, as I
understand it, insofar as the access interdict is concerned, is that
he is entitled, as owner,
to repair and maintain his property. All
things being equal, I am in agreement that he would have had such
right to do so. The
Applicant however accepts, on his own version,
that he is obliged to abide by the provisions of the conduct rules
and obtain the
Respondent’s prior permission to carry out works
on his property. The Applicant however submits that he was not
obliged,
in the present instance, to obtain the Respondent’s
prior approval for the work actually being carried out in the present

instance, by virtue of the fact that such constituted “
maintenance
”
and not “
an alteration
”
to his property. If one has reference to the provisions of conduct
rule 2.1.1, which is the rule pertinent to the present
enquiry, it
states that “
the design and
construction of all new buildings, extensions, alterations to
buildings, swimming pools, fences and all gardens must
be approved by
MACCEMA TWO prior to any work being commenced
”
.
It is clear that the works being carried on at the time would not
have constituted the construction of any new buildings or an

extension to the existing buildings. Could they then be considered to
be “
alterations
”
to the buildings?  If one looks at the nature of the work of
which the Respondent was advised, it consisted of the
“
painting
of the exterior of the house, wooden doors and wooden window frames
”
.
It follows from this that the work would constitute the painting of
the existing elements of the house and would go no further.

Obviously, any additional work such as the sanding, scraping and
filling of those elements would be included in that definition.
What
the Applicant has in fact done, and in respect of which he did not
advise or seek permission from the Respondent, is to replace
the
existing wooden windows and window frames with aluminium framed
windows. In so doing, the Applicant has altered the nature
of the
existing windows from wood to aluminium. I cannot see how this can be
seen as anything other than “
an
alteration
”.
[142]
If one accepts this, and also accepts that
the Applicant would need the Respondent’s prior approval for
such, the Applicant
cannot say that he has a right,
per
se
, to demand that the contractors
continue with the work then being carried out on his property. He is
contractually bound, before
exercising such right, to obtain the
Respondent’s permission to do so. Although I make no finding in
this regard, I am therefore
of the view that the Applicant would have
failed in establishing that he has a right,
prima
facie
or otherwise, as would justify
the grant of an interdict directing the Respondent to allow the
contractors in question access to
his property on the estate.
[143]
As
far as the trespass interdict is concerned, and leaving aside for the
moment the Respondent’s contention that it has a
right to
access the exterior of the Applicant’s property by virtue of
the alleged lease, I am satisfied that the Applicant
would have a
right,
per
se
,
as the owner of the property, to dictate who may enter thereon. The
enquiry does not however stop there. In order to be entitled
to an
interdict, the Applicant would also have to establish that an injury
has actually been committed or that one is reasonably
apprehended. In
dealing with this issue, the following was stated in
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
:
[128]
“
An
interdict is not a remedy for past invasion of rights but is
concerned with present or future infringements. It is appropriate

only when future injury is feared. Where a wrongful act giving rise
to the injury has already occurred, it must be of a continuing
nature
or there must be a reasonable apprehension that it will be repeated
.”
The
Supreme Court of Appeal, in dealing with the requirement of a
well-grounded apprehension of irreparable harm in an interim
interdict, went on to state that:
[129]
“
The
test …. is objective and the question is whether a reasonable
man, confronted by the facts, would apprehend the probability
of
harm. The following explanation of the meaning of 'reasonable
apprehension' was quoted with approval in Minister of Law and
Order
and Others v Nordien and Another:
[
[130]
]
A
reasonable apprehension of injury has been held to be one which a
reasonable man might entertain on being faced with certain facts.
The
applicant for an interdict is not required to establish that, on a
balance of probabilities flowing from the undisputed facts,
injury
will follow: he has only to show that it is reasonable to apprehend
that injury will result. However the test for apprehension
is an
objective one. This means that, on the basis of the facts presented
to him, the Judge must decide whether there is any basis
for the
entertainment of a reasonable apprehension by the applicant….
If
the infringement complained of is one that prima facie appears to
have occurred once and for all, and is finished and done with,
then
the applicant should allege facts justifying a reasonable
apprehension that the harm is likely to be repeated
”
.
[144]
If one has reference to what is alleged by
the Applicant in these proceedings, the Applicant does not in fact
contend that the Respondent’s
manager has entered upon his
property. He relies solely on what is alleged in the Respondent’s
email addressed to him on
the 7
th
of April 2014 that the manager, during a “
routine
inspection of the Estate
”
, had
noticed that the windows and doors had been changed on his property.
From that statement, he seeks to infer that the manager
in fact
entered upon his property to make such a finding. There is nothing to
support such a contention. The Respondent denies
such allegation.
Should the manager have in fact entered upon his property, it would
appear from the facts of the matter, that
any such “
intrusion
”
onto the Applicant’s property would have been solely for the
purposes of an inspection of the repairs that where then
being
carried out thereon. Nothing is stated by the Applicant to support
the notion that any further intrusions would incur in
the future. One
simply cannot draw the inference that the inspection was carried out
as a consequence of the newspaper article
that was published around
about the same time, as one cannot get away from the fact that works
were actually being carried out
on the property at the time and an
inspection thereof would in all probability have formed part of any
“
routine inspection
”
of the estate being carried out by the Respondent’s manager. I
am therefore not satisfied, on the papers before me,
that the
Applicant has established that there had been an “intrusion”
onto his property by the Respondent’s manager
during the course
of his aforesaid inspection or that there was, or is, any threat of
any such further intrusions being carried
out in the future. Having
formed this view, it is necessary for me to deal with the issue of
whether a lease has been concluded
as contended for by the
Respondent, or the status thereof. The Applicant has therefore not
made out a case for the relief sought
in the third subparagraph of
the notice of motion and I accordingly decline to grant same.
Costs
[145]
As far as the issue of costs is concerned,
I am of the view that the costs should, in each instance, follow the
result of the respective
application concerned.  Although a
punitive attorney and client costs order has been sought in certain
instances, I am of
the view that such is not warranted. The parties
have, through the various applications, sought to enforce the rights
for which
they contend: which is something they are entitled to do. I
am therefore of the view that any costs awarded herein ought to be on

the High Court scale.
[146]
As far as the hearing before me is
concerned, by virtue of the equality of outcomes, with both parties
being unsuccessful in the
rules application, the Applicant being
successful in the spoliation application and the Respondent being
successful in the trespass
application, I am of the view that it
would be appropriate in such circumstances for each party to bear
their own costs incurred
consequent upon such appearance.
Orders
I
therefore make the following orders:
In
the rules application: Case number 3962/2014
(a)
Both the application and the counter
application are dismissed.
(b)
The First Applicant, the Second Applicant
and the First Respondent are directed to pay their own costs.
In
the spoliation application: Case number 1118/2014
(a)
Subparagraph 2 (a) of the
rule
nisi
granted on the 1
st
of February 2014 is confirmed.
(b)
The Respondent is directed to pay the
Applicant’s costs of the application, save for those incurred
consequent upon the hearing
of the matter on the 12
th
of June 2015, where each party is directed to bear their own costs.
In
the trespass application:
Case
Number 4375/2014
(a)
The application is dismissed.
(b)
The Applicant is directed to pay the
Respondent’s costs of the application, save for those incurred
consequent upon the hearing
of the matter on the 12
th
of June 2015, where each party is directed to bear their own costs.
TOPPING
AJ
Date
of hearing        : 12 June 2015
Date
Delivered         : 4
February 2016
Appearances:
For
the Applicant : Adv. KJ Kemp SC
Adv.
CB Edy
Instructed
by : Pather & Pather Attorneys
3
rd
/4
th
floor
Lincoln
House
30
Masonic Grove
Durban
For
the Respondent: Adv. SC Stokes SC
Adv.
M Du Plessis
Adv.
SF Pudifin-Jones
Instructed
by : Halstead Paola
Unit
5
7
Holwood Park
La
Lucia Ridge Office Estate
La
Lucia
[1]
A
copy of the contract of sale concluded for the purchase of 3 Harvard
Hill, which is one of the properties forming the subject
of the
rules application, is put up by the Respondent as annexure "TK
5". Such condition is evident from a perusal
of clause 15
thereof.
[2]
A
copy of the Respondent's memorandum of incorporation has been put up
as annexure "A" to the rules application. Such
provision
is contained in clause 7.4.
[3]
This
is set out in clause 8 of the Contract of Sale put up as annexure
"TK 5" to the answering affidavit. The purchaser

acknowledges that the directors of the Respondent shall be entitled
to lay down rules with regard to,
inter-alia
,
the preservation of the natural environment, vegetation, flora and
fauna in the estate, the use and allocation of private parking

areas, the right to keep animals, the use of the recreation and
entertainment areas, amenities and facilities, the placing of

movable objects upon or outside the buildings, the conduct of
persons within the estate and the prevention of a nuisance of any

nature, the use of the land within the estate, the use of the
residential houses/apartments and accompanying garages, carport
and
parking bays erected upon the estate, the use of the roads, pathways
and open spaces, the imposition of fines and other penalties
to be
paid by members of the Association and generally in regard to any
other matter.
[4]
[2014]
ZAKZDHC 36 (17 September 2004).
[5]
At
paragraph 23.
[6]
A
reference to the
Promotion of Administrative Justice Act, No. 3 of
2000
.
[7]
1989
1 SA 1
(A) at 7I – 8E.
[8]
1902
TS 294
at 302:
“
Now
this Court has the power to treat as void and to refuse in any way
to recognise contracts and transactions which are against
public
policy or contrary to good morals. It is a power not to be hastily
or rashly exercised; but when once it is clear that
any arrangement
is against public policy, the Court would be wanting in its duty if
it hesitated to declare such an arrangement
void. What we have to
look to is the tendency of the proposed transaction, not its
actually proved result
.'
[9]
In
Sasfin
(Pty) Ltd v Beukes
supra at 9 B–C and E
[10]
1989
(3) SA 773
(A).
[11]
2004
(5) SA 248
(SCA).
[12]
Botha
(now Griessel)
at
782I – 783B.
[13]
Jaglal
at
paragraph 12.
[14]
Annexure
"D" to the founding papers.
[15]
Annexure
"TK 7" to the answering affidavit.
[16]
Rule
7.3.2
of the March 2011 version of the conduct rules, which is the
rule referred to by the Applicants in their founding papers, is now

repeated as
Rule 7.3.1
in the August 2013 version of the conduct
rules.
[17]
A
reference to the Respondent.
[18]
A
reference to the
National Road Traffic Act, No. 93 of 1996
.
[19]
With
reference to
section 59
(1) (a) of the
National Road Traffic Act.
>
[20]
With
reference to
sections 57
,
59
(1),
59
(2) and
59
(4) of the
National
Road Traffic Act.
>
[21]
With
reference to
sections 89
(1),
89
(3) and
31
(g) of the
National Road
Traffic Act.
>
[22]
With
reference to Schedule 3 of the
Criminal Procedure Act, No. 51 of
1977
,
section 3A
and Chapter 9 of the
National Road Traffic Act and
section 1 of the South African Police Services Act, No. 68 of 1995.
[23]
With
reference to
section 3K
of the
National Road Traffic Act.
>
[24]
With
reference to
sections 35
,
61
and
59
(4) of the
National Road Traffic
Act.
[25
]
Section
13
(1) of the
Consumer Protection Act, No. 68 of 2008
reads as
follows:
"
A
supplier must not require, as a condition of offering to supply or
supplying any goods or services, or as a condition of entering
into
an agreement or transaction, that the consumer must-
(a)
purchase any other particular goods or services from that supplier;
(b)
enter into an additional agreement or transaction with the same
supplier or a designated third party; or
(c)
agree to purchase any particular goods or services from a designated
third party,
unless
the supplier-
(i)
can show that the convenience to the consumer in having those goods
or services bundled outweighs the limitation of the consumer's
right
to choice;
(ii)
can show that the bundling of those goods or services results in
economic benefit for consumers; or
(iii)
offers bundled goods or services separately and at individual
prices.
"
[26]
Section
5
(1) of the
Competition Act, No. 89 of 1998
reads as follows:
"
An
agreement between parties in a vertical relationship is prohibited
if it has the effect of substantially preventing or lessening

competition in a market, unless a party to the agreement can prove
that any technological, efficiency or other pro-competitive,
gain
resulting from that agreement outweighs that effect
."
[27]
1979
(1) SA 626
(A) at 635H-636A.
[28]
1999
(2) SA 279
(T).
[29]
At
323 F-J and 324A.
[30]
2001
(4) SA 842
(W).
[31]
At
848 A-E.
[32]
2002
(5) SA 246
(CC).
[33]
At
paragraph 37.
[34]
2012
(4) SA 593
(SCA).
[35]
At
para 18.
[36]
Bothma
Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms)
Bpk
2014 (2) SA 494
(SCA) at para 12. See also
Firstrand
Bank Ltd v Land and Agricultural Development Bank of South Africa
2015 (1) SA 38
(SCA) at para 27.
[37]
Set
out in paragraph 15 hereof.
[38]
Set
out in paragraph 18 hereof.
[39]
In
Abraham
v The Mount Edgecombe Country Club Estate Management Association Two
(RF) NPC
supra,
at
paragraphs 27-34.
[40]
At
paragraph 34.
[41]
Set
out in paragraph 22 hereof.
[42]
At
paragraph 41 of the answering affidavit.
[43]
Supra,
at
paragraph 23.
[44]
I
do not see the Applicants as contending that the recordal that "
the
presence of children and pedestrians as well as many undomesticated
animals such as buck, monkeys, mongoose, leguans and wild
birds
means that drivers need to exercise additional caution when using
the roads
"
is unlawful.
[45]
Set
out in paragraph 16 hereof.
[46]
Clause
21.4 of the memorandum of incorporation and the "Introduction"
to the conduct rules prescribe that the rules
made by the
Respondent's Board must be "reasonable".
[47]
Now
rule 7.3.1
in the August 2013 version of the conduct rules.
[48]
At
paragraph 48 of the founding affidavit.
[49]
Set
out in paragraph 22 hereof.
[50]
A
reference to the South African Landscapers Institute.
[51]
At
paragraph 125.
[52]
At
paragraph 34.
[53]
Set
out in paragraph 22 hereof.
[54]
In
paragraph 143 of the founding affidavit.
[55]
In
paragraph 55 of the founding affidavit.
[56]
In
paragraph 45 hereof.
[57]
At
paragraph 35.
[58]
Referred
to in paragraph 56 hereof.
[59]
Supra,
at paragraphs 22 and 23.
[60]
See
Sasfin
(Pty) Ltd  v Beakes
supra, at 9 B-C.
[61]
In
Abraham
v The Mount Edgecombe Country Club Estate Management Association Two
(RF) NPC
supra,
at
paragraph 34.
[62]
See
Jaglal
v Shoprite Checkers (Pty) Ltd
supra
,
at paragraph 12.
[63]
See
Abraham
v The Mount Edgecombe Country Club Estate Management Association Two
(RF) NPC
supra,
at
paragraph 34.
[64]
Supra
at paragraph 55.
[65]
In
paragraph 6 of the Respondent's "further affidavit" filed
in response to the Applicants' replying affidavit.
[66]
Paragraph
31.2 of the Respondent's answering affidavit.
[67]
Set
out in paragraph 22 hereof.
[68]
See
clauses 20 and 21.2 of the memorandum of incorporation referred to
in paragraphs 18 to 20 hereof.
[69]
Rule
6.3.
[70]
Rule
6.10.3.
[71]
Rules
6.11.1
and
6.11.2
.
[72]
In
paragraphs 21 to 26 and 64 to 68 of the answering affidavit.
[73]
In
paragraph 26 of the answering affidavit.
[74]
In
paragraph 69 of the answering affidavit.
[75]
Annexure
"TK 10" to the answering affidavit.
[76]
Annexures
"TK 11", "TK 12" and "TK 13".
[77]
With
reference to
rule 13.1.10
, which states:
"
Should
any resident be aggrieved by a decision made by the Estate
Management, he/she may, after having first paid the penalty,
lodge
an appeal within 7 days of the penalty being paid, to the Board
through the Estate Manager. The appeal should contain sufficient

facts and/or information relating to the matter which the resident
concerned believes would justify a finding by the Board which
is
different to that imposed by the Estate Management
".
[78]
With
reference to
rule 13.1.12
, although the reference should be to
rule
13.1.11
, which states:
"
Penalties
imposed for the breach of or non-compliance with the rules shall be
deemed to be part of the levy due by the owner
".
[79]
Annexure
"TK 14" to the answering affidavit.
[80]
The
introduction to the conduct rules provide,
inter-alia
,
that:
"
The
Board is given the authority to make reasonable rules for the
management, control, administration, use and enjoyment of Estate
2.
The Board has the power at any time to substitute, add to, amend or
repeal any rule. The rule should not however be seen to
be either
unduly restrictive or punitive, but rather as a framework to
safeguard and promote appropriate, sensible and fair interaction

amongst residents and MECCEMA TWO
".
[81]
In
paragraph 26 the answering affidavit referred to in paragraph 91
hereof.
[82]
Refer
to paragraph 96 of the answering affidavit, referred to in paragraph
91 hereof.
[83]
See
Chief
Lesapo v North West Agricultural Bank and Another
[1999] ZACC 16
;
2000 (1) SA 409
(CC) at paragraphs 11 and 16;
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) at paragraphs 31-34.
[84]
See
Stellenbosch
Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235 D-G:
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 H-I.
[85]
Clause
20.1 referred to in paragraph 20 hereof.
[86]
Paragraph
29 of the founding affidavit. The letter itself is annexure "SP
3".
[87]
Paragraph
30 of the founding affidavit. The letter itself is annexure "SP
4".
[88]
Clause
29.12 of the memorandum of incorporation reads as follows:
"
Members
still in arrears after 14 (fourteen) days may have their overdue
account and the full interest thereon, handed over for
collection
and possible legal action, and/or their access discs suspended. Any
costs incurred in these proceedings and all additional
interest up
to the date of final settlement shall be for the member's account
".
Rule 13.1.7
is set out in paragraph 87 hereof.
[89]
Paragraph
23 of the founding affidavit.
[90]
In
paragraphs 25 to 27 of the founding affidavit.
[91]
The
provisions of the memorandum of incorporation and conduct rules
referred to are set out in paragraphs 16 to 22 hereof.
[92]
In
paragraphs 35 to 37 of the second answering affidavit.
[93]
1906
TS 120
at 122.
[94]
See
Street
Pole Ads Durban (Pty) Ltd and Another v eThekwini Municipality
[2008] ZAGPHC 33
;
2008 (5) SA 290
(SCA) at paragraph 16.
[95]
See
Nienaber
v Stuckey
1946 AD 1049
at 1053-1054
[96]
With
specific reference to clause 29.12 of its memorandum of
incorporation and
rule 13.1.7
of the conduct rules.
[97]
Nienaber
v Stuckey
1946 A.D. 1049
at 1056.
[98]
Zulu
v Minister of Works, KwaZulu, and Others
1992 (1) SA 181
(D) at 187H – 188E.
[99]
2003
(5) SA 309
(SCA) at paragraph 9.
[100]
Reference
is then made to the cases of
Nino
Bonino v De Lange
1906 TS 120
,
Nienaber
v Stuckey
1946 AD 1049
and
Bon
Quelle (Edms) Bpk v Munisipaliteit van Otavi
1989 (1) SA 508
(A).
[101]
2008
(2) SA 503
(SCA) at paragraphs 12 and 13, together with the
authorities referred to therein.
[102]
Firstrand
Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others
supra: see also
Telkom
SA Ltd v Xsinet (Pty) Ltd
supra at paragraph 14.
[103]
2008
(2) SA 495
(SCA) at paragraph 22.
[104]
Supra
,
where it was held that the use of the bandwidth and telephone
services supplied by Telkom did not constitute an incident of
its
use of the premises which Xsinet occupied, with the result that the
disconnection by Telkom of the telephone lines did not
constitute
interference with Xsinet's possession of its equipment.
[105]
The
Supreme Court of Appeal dealt with similar circumstances in
Firstrand
Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others
supra
.
Whilst accepting that the Respondents' rights, whether they be
described as statutory rights to water or rights to a water supply

or a
quasi-possessio
of a water supply, may well be incidents of their possession or
control of their properties, the court however found, on the
facts
of that case, that the Respondents were not dispossessed of any of
these rights, but an erstwhile contractual right to
convey their
water entitlements, which had already expired by the effluxion of
time.
[106]
2010
(1) SA 506 (ECG).
[107]
Relying
on
Shoprite
Checkers Ltd v Pangbourne Properties Ltd
1994 (1) SA 616
(W) where it was held that the fact that the
Applicant might have had a right, derived from contract, to make use
of a parking
area, including parking bays to be found in a
designated area, such did not amount to possession of the designated
parking area
for the purposes of establishing an entitlement to the
mandement
van spolie
.
[108]
2007
(3) SA 254
(N), where it was held that the Applicant was not in
possession of the entire housing estate, and where the element of
access
could be severed from possession.
[109]
Put
up as annexure "M" to the answering affidavit.
[110]
Rule
6.3.
[111]
Rule
6.10.3.
[112]
Rules
6.11.1
and
6.11.2
.
[113]
2012
(4) SA 215
(GNP) at paragraph 24.
[114]
Supra
,
at 1059.
[115]
2013
(1) SA 239
(KZN), at paragraph 12.
[116]
Paragraph
99 hereof.
[117]
Supra
,
at paragraph 11.
[118]
Supra
,
at paragraph 34.
[119]
1925
AD 417
at 424.
[120]
No.
36 of 1998.
[121]
Supra,
at paragraph 22.
[122]
1989
(2) SA 263
(A) at 271E.
[123]
Referred
to in paragraph 110 hereof.
[124]
Which
is set out in paragraph 22 hereof.
[125]
Which
forms annexure "H1" to the founding affidavit.
[126]
As
annexures "B" and "C" to the answering
affidavit.
[127]
The
Applicant would have had to establish that he has a clear right,
that an injury has actually been committed, or is reasonably

apprehended, and the absence of similar protection by any other
ordinary remedy.
[128]
[2008] ZASCA 78
;
2008
(5) SA 339
(SCA) at paragraph 20.
[129]
Citing
with approval what was stated in
Nestor
and Others v Minister of Police and Others
1984
(4) SA 230
(SWA) at 240 4F-I.
[130]
1987
(2) SA 894
(A) at 896G-I.