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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)

CASE NO: 2023 -031774
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
DATE : 3/1/2025
SIGNATURE :

In the matter between:

BODY CORPORATE THE STRAIGHT Applicant

And

JANSEN MADIKE KATISI Respondent

Summary
Practice – application for money judgment for arrear levies to a body corporate under
section 2(1) of the Sectional Titles Scheme Act 8 of 2011 and authorisation to
disconnect electricity until arrear electric charges and interest are satisfied – Tacit
agreement between body corporate and unit owner – Relief competent .

JUDGMENT
WINDELL, J:

Introduction

[1] The applicant (“the Body Corporate ”), approache d the opposed motion court
for a monetary judgment against one of its members , Jansen Madike Katisi (“ the
respondent” ). It sought judgment in the amount of R10 7 940.63 in respect of unpaid
and arrear levies and electricity charges t ogether with interest and costs .1

[2] Coupled with the request for monetary j udgment , the Body Corporate sought
authorisation to engage the services of an electrician to disconnect the electricity
supply (“the author isation relief”) to the respondent’s immoveable residential property
described as Unit 7 […], The Straight , (“the unit”) until the judgment amount was paid
for in full.

[3] On 14 November 2024 , this court granted an order in favour of the applicant
and granted the Body Corporate permission to disconnect the electricity supply to
the respondent’s section . It further authoris ed that the electricity supply remains
disconnected until the judgment am ount with interest was paid for in full. This was,
howeve r, an error , as it had been my intention all along to grant an order that the
electricity supply remain disconnected until the outstanding electricity charges are
paid. I only realised the error in p reparation of my written reasons.

[4] Rule 42(1)(b) of the Uniform Rules of Court provides that the court may, in
addition to any other powers it may have, mero motu, or upon the application of any
party affected, rescind or vary an order or judgment in which there is ambiguity, or a
patent error of omission, but only to the extent of such ambiguity, error or omission.


1 The amount was amended during the hearing to adjust the claim from R106 447.79 to R107 940.63 .
[5] I thus propose d to amend the order for the electricity supply to remain
disconnected until the outstanding electricity charges and interest on that amount
were paid. In terms of Rule 42(3), the parties were advised of the proposed order
and were invited to comment thereon on or before Wednesday, 18 December 2024.

[6] The Body Corporate subsequently informed the court that they have no
objection to the amendment of the order granted on 14 November 2024 . The
amendment is thus made to reflect th at the electricity supply will remain
disconnected until the electricity charges , with interest thereon have been paid. What
follows are the reasons for the order granted.

Background

[7] The elected board of trustees authorised the institution of the application in
this matter on 15 March 2023 in accordance with a resolution signed by two trustees.
This resolution stipulated that litigation could be initiated to recover all sums due,
owing, and payable to the Body Corporate by the respondent, as well as a prayer for
the disconnection of the electricity supply to the unit. Bernadette van Wyk, a
bookkeeper employed by the managing agent of the Body Corporate deposed to the
founding and replying affidavit s.

[8] The application was launched on 4 April 2023 and the respondent delivered a
notice of intention to oppose on 26 May 2023 . The respondent served his answ ering
affidavit on 19 June 2023. The Body Corporate delivered its r eplying affidavit and
heads of argument on 26 July 2023 and 16 August 2023 respectively. The Body
Corporate obtained a court order on 7 February 2024 compelling the respondent to
deliver his heads of argument , practice not e, chronology and list of authorit ies in
compliance with Chapter 9.8, paragraph 12 of the Practice Manual .2 After a perusal
of the court documents, it appears as if none of the court documents that the
respondent was ordered to file in accordance with the court order granted by Adams
J were delivered. On 10 April 2024 , the respondent was advised that the matter was
set down for the week of 19 August 2024.

2 Practice Manual – Gauteng Local Division, Johannesburg – February 2018

[9] On 21 August 2024, the respondent addressed email corr espondence to the
Body Corporate ’s instruc ting attorney advising that he was unable to attend the
scheduled court appearance on 22 August 2024, due to ‘unexpected circumstances ’.
He advised that he was currently out of the country on a work project and that he
was unable to return home in time for the proceedings.

[10] A copy of the email correspondence dated 21 August 2024 was made
available to the court on 22 August 2024. The court was satisfied that the respondent
had received a cop y of the notice of set down and that he was aware of the nature of
the proceedings scheduled on the date of the hearing . Consequently, the hearing
proceeded in his absence.

The Body Corporate

[11] The Body Corporate is a sectional title scheme established and incorporated
in terms of 2(1) of the Sectional Titles Schemes Management Act3 (the Act) . The
scheme was established in 2007 and it consists of 86 units . The respondent bought
the unit on 30 June 2014 for the p urchase price of R1 025 000.00. As the owner of a
unit of the scheme , the respondent is automatically a member of the Body
Corporate .

[12] The Body Corporate is managed and represented by a body of trustees. A
fiduciary relationship exists between the trustees and the Body Corporate . The
nature of the relationship between the trustees and the Body Corporate compels the
trustees to manage the affairs of the Body Corporate in a manner that is beneficial
for all its members in terms of section 8 of the Act.

[13] The obligations of the trustees include the recovery of monthly levies which
are charged by the Body Corporate to its members on a monthly basis. The pur pose
of the levies is to procure funds in order to manage and administer the affairs of the
Body Corporate, predominantly the maintenance and upkeep of the common

3 Act 8 of 2011
property within the sectional title scheme. The Body Corporate is a non -profit
association and is precluded from deriving income from sources outside of the Act . It
is therefore almost completely dependent on the recovery of levies and municipal
charges for its continued existence and financial sustainability.

[14] The Body Corporate asserts that the ir functions are governed by section 3 of
the Act whereby provision is made for the passing of a resolution by trustees
authorising the total amount of levies that the Body Corporate can charge its
members. Such resolutions are passed annually pursuant to the ratification of the
estimated income and expenditure for the ensuring financial year during the annual
general meeting.

[15] It is accepted that the Body Corporate is entitled to recover legal expenses
incurred in the enforcement of the Act (including the Management Rules and their
own Conduct Rules). This includes instances where the Body Corporate commences
legal proceedings for the recovery of arrear levies and municipal consumption
charges. Further, in terms of the empowering provision contained in section 29(1)(b)
of the Community Schemes Ombud Service Act4 (“CSOS”) and the regulations
promulgated thereunder, the Body Corporate must recover contributions from
members in respect of levies which are payable by the Body Corporate to the ombud
service on a quarterly basis.

[16] Section 4(i) of the Act read with Management Rule 25 in Annexure 1 of the
Sectional Titles Schemes Manag ement Regulations 2016 (“the Regulations”), the
Management Rules listed in Annexure 1 together with the Conduct Rules set out in
Annexure 2 of the Regulations entitles the Body Corporate to claim judgment against
the respondent for the outstanding levies.

Money payment and arrear levies and utilities

[17] The Body Corporate alleged that the respondent had breached his obligations
regarding the payment of the levies and utilities due to the Body Corporate over a

4 Act 9 of 2011
period of 25 months since February 2021 to March 2023. During that period, the
respondent’s arrears escalated to R10 7 940.6 3, of which R16 610.68 is in respect of
unpaid and arrear electricity consumption charges.

[18] In the answering affidavit, the respondent conceded hi s indebtedness to the
Body Corporate . The respondent explained that the effects of the covid 19 pandemic
impacted him negatively as the breadwinner in his h ousehold and that a lack of
income had placed him in an unfavourable position since 2020. The respondent
tendered a payment arrangement on the basis that he would pay R8000.00 per
month to extinguish the outstanding levies and utilities. The respondent stated that
he had informed the Body Corporate that he was amenable to making the unit
available for rental purposes in order to derive income that would be allocated
towards settling the arrears.

[19] The respondent therefore conceded his indebtedness to the Body Corporate.
He had not put up a valid defence against the relief sought by the Body Corporate .
The Body Corpor ate is entitled to the relief claimed in prayer 1 of its notice of motion.

Disconnection of electricity supply to the unit

[20] The contentious issue raised in this application is the relief sought by the
Body Corporate in prayer 3 of its notice of motion . The Body Corporate seeks
authorisati on to engage the services of an electrician to disconnect the electricity
supply to the respondent’s unit in the event of the non -payment of the money
judgment by the respondent within 10 days of the grant o f such order and authorising
that the electricity supply remain disconnected until full payment of the money
judgment.

[21] In his answering affidavit the respondent contended that the Body Corporate
is not entitled to cut the electricity without a prior agreement between themselves
and that such relief would affect his constitutional right against the ‘arbitrary
deprivation of property in terms of section 25(1) of the Constitution’ and ‘ the public
law right to receive electricity from the municipality’ . In support of his argument, he
relied on two cases: Lion Ridge Body Corporate v Alexander5 and Joseph v City of
Johannesburg .6

[22] In Lion Ridge , the court held that the relief sough t (disconnection of the
electricity supply) affect ed the respondent’s constitutional right s and c ould only be
granted by virtue of a Management or Conduct Rule or agreed to by the body
corporate member. It further held t hat although it was argued that there was a tacit
agreement permitting it to disconnect the respondent’s utilities, such an a greement
was not pleaded , failing which no r elief would be competent. The respondent in casu
contends that there was no such agreement between the Body Corporate and
himself.

[23] The Constitutional Court in Joseph examined the relationship between the
municipality, a service provider, and the ult imate user of the service (tenants), where
the service is provided through a third party, such as a landlord. The municipality
disconnected the electricity after giving only notice to the landlord and not to the
tenants. The tenants, inter alia, claimed th at the disconnection without notice to them
violated their constitutional right to access to adequate housing (implying a right to
electricity) and human dignity (under sections 26 and 10 of the Constitution,
respectively), and their contractual rights against the owner of the property. The
Court he ld that the right to electricity was a public law right and that the tenants were
entitled to procedural fairness in that they had to receive adequate notice at least 14
days before disconnection.

[24] The Body Corporate contends that it has made out a c ase for the
authorisation relief on various grounds. Firstly, the Body Corporate acknowledged
that it cannot arbitrarily disconnect the respondent’s electricity. It thus seeks the
court’s authorization to disconnect the respondent’s electricity.


5 2022 JDR 3057 (GJ).
6 2010 (4) SA 55 (CC).
[25] Secondly, in its founding affidavit, the Body Corporate state d that following the
annual general meeting on 1 May 202 0, the trustees passed a resolution in writing in
terms of section 3(5) of the Act and the following was resolved:

“1. That the contribution for the period 1 May 2020 until 30 April 2020 is
determined with reference to the attached levy schedule for the
financial year end 30 April 2021;

2. That the above contribution is payable in monthly instalments, due on
the first day of every month, conditional upon every instalment being
paid on or before the 7th day of each month and;

3. That if an owner should fail to pay any monthly instalment on o r before
the 7th day of each month, the entire annual contribution shall become
due and payable, known as the “acceleration clause” and;

4. That the interest rate in respect of all arrears due by the owners be
determined at 10.00% or such rate as determin ed by the Prescribed
Rate of Interest Act 55 of 1975 (the percentage for interest rate as
Determined by Prescribed Rate of Interest Act 55 of 1975),
compounded monthly, in terms of the Management Rules of the said
Body Corporate such interest to be calcula ted from the first day of each
month following the due date of any contribution payment and:

5. That the registered owner will be handed over by the duly appointed
managing agent of the Body Corporate to attorneys or a debt collection
agency appointed by the trustees of the Body Corporate for the
collection of the full outstanding arrears. The trustees will therefore
institute legal action in a court of competent jur isdiction in terms of
section 3(2) of the Sectional Titles Schemes Management Act, NO. 8
of 2011, or apply to the Community Schemes Ombud to recover same.
The defaulting owner will be liable to pay all legal costs, expenses and
charges incurred by the Appl icant in recovery of arrear contribution as
contemplated in the aforementioned trustees’ resolution.

6. That should an owner dispute any contribution and/or charges, and all
internal dispute resolution mechanisms have been exhausted, he/she
will have the option to approach the Community Schemes Ombud
Service (CSOS) for relief. The owner may register an application with
CSOS in the prescribed manner and form which form must be
completed in full and all relevant information pertaining to the
application mus t be recorded accurately. Once registered, the
application will be assessed to determine its validity and, if possible,
set down for conciliation.

7. That the above determination of the interest rate remains in place and
effective until resolved otherwis e by the trustees.

8. That this resolution replaces any other duly signed resolution by the
trustees to raise and recover levies, prior to the date of this resolution,
required in terms of the Act”.

[26] Similarly, the Body Corporate explains that the d etermination of the levies’
quantum was always subject to the formulation of the participation quota of each and
every unit in the Body Corporate’s scheme to calculate the exact levy payment that
would be payable by each and every unit owner. A copy of the levy schedule was
attached to the Body Corporate’s founding affidavit. However, pursuant to the annual
general meeting held on 29 September 2021 and 28 September 2022 , the trustees
passed a further special written resolution in terms of section 3(5) of the Act
resolving to recover all utilities at a different value, other than PQ values of the
scheme or the liability of an owner in terms of section 3(1)(a) [and] 14(1).”

[27] After the receipt of the answering affidavit i n which the respondent alleged
that there was no agreement between the Body Corporate and himself, authorizing
the disconnection of electricity supply to his unit, the Body Corporate filed its replying
affidavi t. In the replying affidavit it was averred that there was a tacit agreement
established between itself and the respondent upon the purchase of the
respondent’s unit in the sectional title scheme. As a consequence, thereof, he was
bound to the Rules and Regulations passed by the trustees of the Body Corporate.
General and special resolutions passed by the trustees were thus enforceable
against the respondent.

[28] Thirdly, the Body Corporate receives monthly accounts from Eskom, whic h is
payable by it, in respect of all the owners of the Body Corporate, including the
respondent. The Body Corporate has engaged the services of a contractor which
attend the sectional title scheme on a monthly basis and generates a report of the
electrici ty consumption in respect of every unit after reading the meters. In this
regard, the Body Corporate represented by its managing agent, will capture its
monthly readings and the applicable amount in respect of the electricity
consumption, which is incorpor ated in the monthly invoice and statements of account
furnished to every member of the Body Corporate. Accordingly, the respondent
receives a statement reflecting the actual electricity consumption of his unit.

[29] The Body Corporate has paid the respon dent’s electrical charges in respect
of February 2021, on a monthly basis, up to an including March 2023. It is contended
that the electricity consumption charges are the most prejudicial to the Body
Corporate if they are not recovered as the Body Corporat e is obligated to, on a
monthly basis to effect payment of electricity consumption in respect of every unit to
Eskom. If the Body Corporate does not recover these payments, it will continue to
advance monies to Eskom, on behalf of owners of units who do no t pay for electricity
consumption. This will deplete any savings the Body Corporate may have and
ultimately cause the Body Corporate to have a negative bank balance, risking a
disconnection of electricity supply to all the units and the Body Corporate bein g
placed under administration. This would severely prejudice all the members of the
Body Corporate who will be left without electricity and will suffer a significant
decrease in their property values.

Evaluation

[30] There is tension between competing interests in this matter: the right of the
Body Corporate to be reimbursed for payments made on behalf of the unit owners
and the right of the owner to be supplied electricity. This issue is subject to a variety
of policy considerations . The Body Corporate is a non -profit association and
precluded from deriving income from sources outside the scope of the Act. It is
dependent on the recovery of the levies and municipal charges for its survival. It is
obliged to pay Eskom, failing which the remainder of the owners of units of the Body
Corporate will be left without electricity. The recovery of the electrical charges is
therefore critical.

[31] In Lion Ridge7 the basis for the authori sation relief was not properly pleaded.
In this application, the Body Corporate had made out a case for the authori sation
relief based on a tacit agreement between the Body Corporat e who is represented
by the trustees on the one side and the owners of the units on the other side . The
respondent did not attend the hearing , did not file heads of argument and did not
seek leave to file a supplementary affidavit . The allegations made by the Body
Corporate in relation to the tacit agreement are thus undisputed.

[32] The tacit agreement entails that when the Body Corporate pays the electricity
charges on behalf of the owners , they in turn have an obligation to reimburse the
Body Corporate for such payment . Usually, this is pro rata as was the case in Body
Corporate of Balboa Park v Skeyi and Another .8 However, this was changed by way
of a special resolution to recover utilities at value other than per quota.

[33] Like many Bodies Corporate, the Body Corporate has engaged the services
of a contractor which attends at the sectional title scheme on a monthly -basis and
generates a report of the electricity consumption in respect of every unit, after
reading the me ters. In this regard, the Body Corporate, represented by its Managing
Agent, will then capture the monthly readings and the applicable amount in respect
of the electricity consumption, which is then incorporated in the monthly invoice and
statements of acc ount furnished to every member of the Body Corporate .
Accordingly, the respondent receives a statement reflecting his actual usage of
electricity.


7 See also Body Corporate of Balboa Park v Skeyi and another 2024 J DR 1560 (GD) .
8 2024 JDR 1560 (GD) .
[34] Thus, in terms of the tacit agreement , if an owner fails to reimburse the Body
Corporate, it is entitled to take the necessary steps to mitigate its losses and prevent
further usage until the electricity charges had been paid. In effect, what the Body
Corporate is seeking, is a termination of the agreement between it and it s owner.
Given that the nature of the relationship is by agreement, it is unclear why the Body
Corporate is required to continue to pay the electricity charges of a non -paying
owner, who is able to enjoy the benefits of electricity, whil e the other owners are
unfairly contributing towards the non -paying owner’s usage of electricity.

[35] In Body Corporate of Balboa Park v Skeyi and Another9 the court per
Dippenaar J expresse d her doubts on whether an agreement between a Body
Corporate and the respective owners would survive Constitutional muster and may
be ultra vires . It is, however, unclear why this is the position in relation to Sectional
Titles, which pays the owner’s acco unts due to an existing agreement, when a
municipality may disconnect the power of a non -paying owner upon written notice
(Joseph ) and a landlord may, upon notifying a non -paying tenant, stop paying the
municipality, who could then disconnect the power ( see Zungu v Nilgra Flats CC10).

[36] One of the rationale s behind Sectional Titles Schemes , was to provide
ownership rights to individuals with lower income s.11 Accordingly, the authori sation to
disconnect a unit owner’s electricity is crucial , as these households are respon sible
for the payment of these accounts. In the event that the Body Corporate is unable to
finance non -paying owners, the entire scheme's electricity may be disconnected.

[37] The respondent continues to benefit from electricity without paying his dues,
which is detrimental to the financial stability of the Body Corporate and the other
owners. The disconnection of the respondent’s supply of electricity can operate or
function a s a preventative measure to safeguard other owners by ensuring that the
financial responsibility is shared equally and proportionately to avoid financial

9 2024 JDR 1560 (GD)
10 (2017/44199) [2017] ZAGPJHC 417 (23 November 2017). See also Anva Properties CC v End
Street Entertainment Enterprises CC (unreported) case number 22109/2014 at para 8 in which the
court granted a landlord permission to disconnect the power to its own property with the assistance of
a electrician in the event of non -payment of rental.
11 See CG van der Merwe Sectional Title Share Blocks and Time Sharing . Vol 1 P age 1 – 18.
hardships and the repercussions thereto. In the absence of such a safeguard, the
respondent enjoys the benefit of electricity without paying his dues at the expense of
the other owners.

[38] Lastly, the respondent’s reliance on Joseph is misplaced, as the facts of that
matter are wholly distinguishable from the present matter. The Constitutional Court in
Joseph appreciated the importance of debt collection by local government in the
event of non -payment of electrical charges but held that before the municipality can
disconnect the electricity there must be procedural fairness in that proper notice
must be given to the end -users. In the present matter , the Body Corporate followed
due process by sending a letter dated 21 February 2022 to the respondent informing
him of the consequences of non -payment of his levies (which included seeking an
court order that w ill made provision for the disconnection of the electricity supply to
the respondent’s unit until the arears had been settled) and approaching the court to
gain the necessary authority to disconnect the electricity supply to the respondent’s
unit.

[39] The written resolutions passed by the trustees during 2020, 2021 and 2022
are capable of being enforced by way of a court order until the respondent has
settled the electricity charges together with interests and costs. The disconnection of
the supply of el ectricity to the respondent’s unit will put the Body Corporate in the
position where it will be able to cap its losses, whilst it attempts to recover the
arrears . At the very least, the Body Corporate will be able to prevent the situation
from becoming wor se, by preventing further electricity supply to the unit in
circumstances where the respondent is not paying and avoiding the risk of Eskom
disconnecting the electricity supply to every other unit in the scheme.

[40] In the result, the following order is made:

1. Payment in the sum of R107 940.63 ;

2. Interest on R107 940.63 at the rate of 11,25% a tempore morae t o date
of final payment;

3. The applicant is authori sed to engage the services of an electrician
registered with the Electrical Contractors Association of South Africa, in order
to disconnect the electricity supply to the respondent’s section, being secti on
7[…], The Straight , in the event of the respondent not effecting payment of the
outstanding electricity charges within 10 days of this order .

4. The electricity supply shall remain disconnected until such amount plus
interest on that amount at the rate of 11, 25% per annum compounded
monthly is paid .

5. The respondent to pay the costs of the application on Scale B.


________________
L. WINDELL
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG


Delivered: This judgemen t was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand -down is deemed to be 3 January 2025 .

APPEARANCES

Counsel for the Body Corporate : Ms A. De La Porte
Instructed by: Christelis Artemides Attorneys

Counsel for the respondent : No appearance

Date of order: 14 November 2024
Date of judgment: 3 January 2025