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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2024- 135845
In the matter between:
In the matter between:
MICHAEL THINAVHUYO MASEULE and OTHERS Applicants
and
JACQUES PIETER GROVE and OTHERS Respondents
JUDGMENT
BADENHORST AJ:
[1] This is an urgent application by several owners of sectional title units in a
residential block of flats known as “K […] L[…]” at […] P[…] N[…] & Q […] Streets
Hillbrow in Johannesburg (“the building”). The application initially came before the
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
18 December 2024
DATE SIGNATURE
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urgent court (after hours) between 21 and 22 November 2024. The upshot was an
order dealing with only one of the prayers in the notice of motion, as follows:
“1. The matter is treated as urgent in terms of Rule 6(12).
2. The applicants who have been denied access to the building and the units
which have been locked are immediately to be allowed access to the units
and building in question.
3. Costs are reserved.”
[2] It is clear that the previous court deal t only with the most pressing issue at
that time, namely restoring applicants’ access to the building . The rest of the relief
claimed was stood over for later. I note that the respondents only answered on 2
December 2024 which means that when the previous order was made, they had not
yet been afforded an opportunity to answer. It is conceivable that this fact may have
contributed to the decision.
[3] The applicants re- enrolled the application for hearing as a matter of urgency
on 3 December 2024. The balance of the relief originally claimed turns , in essence,
on their objection against the debt collection “mechanism” implemented by the sixth
respondent (on the instructions of the first respondent) [“the mechanism”]. The sixth
respondent denies that it has anything to do with the issues in the case because i t is
no more than a service provider which provides prepaid metering to the Body
Corporate (of the building) and implements tariffs , fixed fees or debt recoveries as
determined by the Body Corporate. When the matter was first called in this court , the
sixth respondent gave notice that it abides the decision of the court, and its counsel
was excused from further attendance. I shall refer to the other respondents jointly as
“the respondents”.
[4] The first applicant accuses the first respondent of taking control of the building
without a meeting of the Body Corporate; that he has appointed himself as the
chairperson of the Body Corporate; and that no trustees exist or have been
appointed; that he has without authority appointed his own company, the third
respondent, to act as the managing agent of the scheme; similarly, he says, that the
sixth respondent was irregularly appointed without authority.
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[5] The key complaint, relevant at this stage of the matter, is described as follows
in paragraph 13 of the founding affidavit:
“The First Respondent presently uses this entity to implement an
unauthorised and/or unlawful debt collection mechanism, placing restrictions
on the purchase of electricity, each time the Applicants attempt to purchase
prepaid electricity, the electricity units received are restricted, with the balance
being allocated to a purported debt amount reflected as arrears. By way of an
example, I attach a sample of a prepaid slip depicting the above as "K-004".
K-004 is reproduced below:
As can be seen from K – 004, the person who purchased R100 worth of pre-
paid electricity, was in the end only credited with R 4.35 for electricity. The
balance of about R 95 was systematically (automatically) diverted to reduce
other “debt” by reason of “arrears”.
[6] The respondents filed a brief affidavit, raising the following defences:
1. That no urgency exists and that the application should accordingly be
struck from the urgent roll;
2. The respondents’ principal defences on the merits are stated as follows
in the answering affidavit:
i. “The first applicant is but a dormant owner, never participates
in the administration of the building, as long as he is collecting his rentals and
turns the building into a squatter camp, he sees no reason at all to get
involved in meetings, enforcement of rules or the administration of the building
and its maintenance.”
ii. “Some of the person cited as applicants cannot tell the court
on how they occupied the building because they hijacked it, some are illegal
occupiers turned landlords, some inherited the units through unorthodox
means, however for some of us who invested money to develop the property,
we live to pay the price of unscrupulous property owners like the applicants
herein.”
iii. “The first two applicants have never written to us requesting
anything save to hire the current Attorneys to protect their interests which is to
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illegally house undocumented persons in order to collect money. They are the
chief instigator of chaos and disorder at the property herein a subject matter.
They incite violence, blockages, and hold illegal meetings in cahoots with
other hijackers. I attach the interdict granted by this honourable court marked
JG 007.” [ This refers to an order granted by this court on 16 August 2022 to
prevent certain named parties from interfering with the current respondents’
rights to enter the building and conduct their business thereat.]
iv. “I have invited owners and tenants alike recently in August via
a notice on order to iron out issues and the way forward. I attach the said
Notice marked JG 008. None of the persons herein pitched up nor
participated at all. It is then surprising that when decisions are made in their
absence they cry foul and run to urgent court.”
v. “The building is dilapidated, it owes municipality rates and
taxes and services, and to circumvent the cutting off of electricity, the Seventh
Respondent was hired to assist in keeping the lights on while slowly
recovering the debt to be paid to the 8
th Respondent. There is nothing foul or
illegitimate there save for the fact that the applicants simply do not want to
pay for the services. ” [There is no 8 th respondent. I suspect the reference
should be to the 7th respondent, City Power (Johannesburg).]
vi. “Their distaste for paying for the water and electricity is not a
ground to approach the urgent court. I do not own the 7th Respondent
therefore I have no any other tie to them save for a service they have been
hired to give. ” [Again, the reference appears to be incorrect – I suspect the
correct reference is the 6th respondent.]
vii. “Instead of working together to save the property herein a
subject matter, the applicants are only concer ned with issues that affect their
purse as opposed to the bigger issues.”
[7] The undisputed facts, as they emerge from the papers and on which this court
is required to adjudicate the matter are the following:
1. The applicants have the right to occupy flats in the building (and some rent
these out to tenants);
2. Electricity is supplied on a prepaid basis;
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3. The mechanism put in place and maintained by the 6 th respondent ( on
instructions of the respondents), enables moneys paid by the applicants
towards their desired electricity purchases to be set off against older debts
(for services supplied by the local authority) claimed by the respondents to
be owing by the applicants . The consequence hereof is that only a small
portion of the applicants’ funds ( intended to pay for electricity use into the
future) is converted into electricity supplies . This is clearly demonstrated by
K-004 above (which was introduced by the respondents) : of the R 100 paid
for future electricity supplies, only R 5 is applied for future electricity
supplies. The bulk of the payment (supposed to be for future electricity
consumption) is in fact a pplied towards clearing alleged “arrears” (which
typically included any municipal services, including water, electricity and so
on).
4. The applicants argue for urgency because they say that because their
payments are irregularly intercepted in this way, they and their families are
literally kept in the dark because they have limited means to spend on
electricity.
[8] I am persuaded that the matter remains urgent . The applicants (and their
tenants, families or guests ) who are affected by the unavailability of electricity
obviously suffer ongoing hardship. The court’s urgent attention is justified.
[9] The respondents have not taken the trouble to explain the legal grounds for
their application of the mechanism , more particularly on what basis they are entitled
to recover arrears allegedly owed by the applicants by diverting payments intended
for purchase of future electricity usage (or credits) towards the reduction of such
historical debts (arrears). It may well be that there is a legal foundation or justification
for this practice, but the respondents have chosen not to explain it in the papers filed
in this matter . General statements made by the respondent such as the following:
“(t)here is nothing foul or illegitimate there save for the fact that the applicants simply
do not want to pay for the services ” do not pass muster as a viable defence in these
proceedings.
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[10] The respondents do not have the right, absent an agreement between the
parties or an order of court , to apply moneys paid by the applicants for future
electricity supplies towards the reduction of another (historical) debt . Nowhere in the
respondents’ affidavit is there an attempt to explain or justify the diversion of
applicants’ payments or to even justify the set -off that was applied. Absent a legal
basis, the respondents’ practice will be a form of illegal parate executie or spoliation.
[11] It follows that there is no answer to the essence of applicants’ remaining
complaint in the application.
[12] I confine my order to only the part of the complaint which I consider to be
genuinely urgent. I also refrain from making a final order thus intentionally leaving
the door open for the parties to pursue other remedies or to take the issue up in
ordinary court proceedings with reference to any of the issues raised in the papers
before me. I do so mindful of the pressing circumstances in which these proceedings
were necessarily dealt with by all concerned.
[13] I accordingly make the following orders:
1. The respondents (excluding City Power) are prohibited with immediate
effect, either directly or indirectly, from diverting or setting off moneys
earmarked by the applicants for the purchase of prepaid electricity usage by
them (or their tenants, family or guests) at the K[…] L[…] Building (number
[…] corner P[…] N[…] and Q […] Streets, Hillbrow, Johannesburg) [‘”the
building”], for recovery of arrears arising from alleged historical debts
claimed by the respondents to be owing by the applicants;
2. The order in paragraph 1 above shall be interim in effect and apply only
until it is set aside, replaced, reviewed or varied by any of the following:
i. a Ruling by the Rental Housing Tribunal with jurisdicition over the
building, established under the Rental Housing Act 50 of 1999;
ii. an Order by an Adjudicator with jurisdicition over the building,
issued under Chapter 5 of the Community Schemes Ombud Service
Act 9 of 2011; or
iii. an order of court.
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3. The first, second, third, fourth and fifth respondents (who opposed the
application) are liable, jointly and severally, for the costs of the application
including the costs reserved in terms of the order dated 22 November 2024.
BADENHORST AJ
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant Adv Mhlanga,
instructed by Precious
Muleya Inc
For the First - Fifth Respondents Adv Mafu instructed by Ntozake
Attorneys
For the Sixth Respondent Adv Luthuli instructed by Bongani
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