SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

CASE NO: A2024 -034881
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE : 21 January 2025
SIGNATURE

In the matter between:
SIBONGILE BEATRICE MTSHALI Appellant

And

HARBOUR TOWN HOMEOWNERS ASSOCIATION Respondent
_____________________________________________________________ _____

J U D G M E N T

LIEBENBERG AJ:
[1] The appellant is aggrieved by the summary judgment granted against her on 1
March 2024 by the Magistrates’ Court for the district of Meyerton held at
Midvaal. The judgment was granted at the instance of the respondent which is
a Home owners Association (“HOA ”) initially incorporated as a non -profit
company in terms of the Companies Act 1973 (“ the 1973 ”), in respect of its
claim for payment of arrear levies owed to it by the appellant.

[2] Summons in the action was issue d in November 2022 and served on the
appellant on 9 January 2023 . She noted her appearance to defend the action
on 24 January 2023 and delivered an exception to the respondent’s particulars
of claim. Pursuant to the exception, t he respondent amended its particulars of
claim without objection . It would appear that the appellant delivered a second
exception, which she withdrew.1 The appellant delivered her plea, which
incorporated a special plea of prescription, a plea over and a main conditional
counterclaim and an alternative thereto.

[3] The application for summary judgment followed on 31 July 2023, which the
appellant opposed. The matter came before the court below which handed
down its written judgment and order on 1 March 2024.

The factual matrix
[4] There is no dispute that the respondent’s claim is susceptible to an application
for summary judgment. The parties are also agreed on the relevant legal
principles applicable to such applications . Where they differ, is whether the
appellant raised triable issues. The respondent and the court below contended
that she did not do so.

[5] On the common cause facts , the appellant became the registered owner of an
immovable property described as ERF 1[...] V[...] H[...] Township, Ext 6 ,
situated in Midvaal Local Municipality (“the appellant’s property ”) on or about
10 August 2007. The property is within a residential estate of which the
appellant is the HOA.

[6] The title deed in respect of the appellant’s property provides that “ every owner
of an erf shall become and remain a member of the homeowners association
and be subject to its constitution until he ceases to be an owner as aforesaid.
No erf … shall be transferrable to any person who has not bound himself to the
satisfaction of the association to become a member of the homeowners
association .”


1 The record does not reflect the reason for the withdrawal of the exception.
[7] The parties are agreed on the terms of the appellant’s Memorandum of
Incorporation (“ the MOI ”), amended from time to time . The most recent version
of the MOI was approved at a general meeting of members on 12 September
2015 and received by the Companies and Intellectual Property Commission
(CPIC) on 12 November 2015. A copy thereof had been annexed to the
particulars of claim.

[8] There is also no dispute that, f rom time to time, the appellant made payments
to the respondent in respect of levies and special levies, as reflected in the
schedule annexed as “D” to the particulars of claim . The appellant admit ted
that t he respondent demanded payment from her and she refused to make
payment.

[9] The parties agree that t he provisions of the National Credit Act2 are not
applicable to the matter at hand.

The respondent’s claim
[10] The respondent’s case is premised on the following allegations .

[11] By virtue of her ownership of the property and the terms of the title deed , the
appellant became a member of the HOA , and a subscriber to the MOI to which
she is bound by virtue of the provisions of the “Companies Act .”

[12] In terms of clause 9.2.1 of the most recent MOI, a registered owner of a
property in the estate qualifies for membership of the HOA , and all persons who
so qualif ied for membership at the date of adoption of the MOI, shall remain
members of the association until they cease to be members in terms of the
provisions of the MOI. Additionally, clause 9.2.2 provides that each registered
owner , who has bound himself to become a member of the HOA in terms of the
title deed, or otherwise, shall become a member of the HOA with effect from the
date on which such person becomes the registered owner.


2 Act 24 of 2005.
[13] To enable the HOA to conduct its business and to meet its expenses, all
members are liable to pay levies to HOA , the extent of which levies is subject to
approval by ordinary resolution of the members at the annual general meeting
of members. Members are to make payment of the levies so imposed on or
before due date. The MOI also allows for the imposition of special levies.

[14] At the annual general meetings of members held on 12 September 2015, 19
November 2016, 18 November 2017, 13 October 2018, 20 November 2019, the
extent of levies payable, as well as an interest rate of 15.5% per annum to be
levied on arrears, were approved by ordinary resolution.

[15] Until 24 June 2019, the appellant made regular monthly payments of the levies
due. Subsequently, she failed to do so but for a payment of R 10 000.00 made
on 16 February 2021. As at 1 November 2022, the appellant was indebted to
the HOA in the amount of R 151 300.00, as set out in the annexure to the
summons.

The appellant’s defences and counterclaim
[16] The appellant raised , in the main, three defences:

[16.1] A special plea of prescription , contending that a least a portion of the
respondent’s claim had been extinguished by the effluxion of time (“the
prescription issue ”).
[16.2] Although she a dmits the terms of the title deed, the appellant pleaded
that these terms do not result in her automatically becoming a member of
the HOA or a subscriber to the MOI, or that she is bound by decision
taken at annual general meetings of the HOA . As such, she denie d
being a member of the HOA, and therefore liable to make payment of
levies to the respondent (“the membership issue ”).
[16.3] The appellant also pleaded that the respondent “ has not pleaded any
cognisable basis for the [appellant] being bound by the [respondent’s]
Memorandum of Incorporation .” (“the exception issue ”)

[17] Additionally, the appellant filed a counterclaim, couched in two alternatives .

[18] The main counterclaim is conditional on a finding of her having become and
remain ed a member of the association and is premised on the terms of the
MOI. It was alleged, it contains a tacit term that the HOA would:

“3.2.1 at all times act in the best interests of members of the Plaintiff,
including the Defendant;
3.2.2 would not act to the prejudice of any members of the Plaintiff, including
the Defendant;
3.2.3 collect from members of the association levies due by such members;
…”

[19] She allege d that the HOA had breached the terms of the MOI, including the
tacit term, by failing to collect levies and thus being unable to maintain the
infrastructure of the residential estate. As a result of this breach, the appellant
suffered damages in the amount of R 1 800 000.00 “ being the difference
between the market value of the Defendant’s immovable property in the amount
of R 3 800 000.00 [when she became a member of the association] and the
current market value of the Defendant’s immovable property in the amount of
R 2 000 000.00. ”

[20] In the alternative, and in so far as it is found she was not a member of the HOA ,
the appellant counterclaim ed for the same amount of R 1 800 000.00 premised
on the respondent having (a) breached an alleged legal duty to act in the best
interests of property owners ;(b) not to prejudice any such owners ; ( c) to collect
levies from members of the association; and (d) to maintain and promote the
infrastructure of the residential estate.

The respondent’s application for summary judgment and supporting affidavit
[21] In its affidavit in support of the application for summary judgment, the
respondent countered the prescription issue on two bases: firstly, the appellant
being a member of the governing body of the plaintiff at all relevant times,
prescription does not run by virtue of section 13(1)(a) of the Prescription Act;3
and secondly, the appellant continued to pay the running account which
amounts were allocated to the oldest debt first and thereby acknowledged
liability and interrupted prescription.

[22] In relation to the membership issue , the respondent contended it is clear from
the terms of the title deed that the appellant is a member of the respondent and
liable to pay levies to the respondent. Admitting being the owner, there is no
basis upon which the appellant can be unaware of the terms and provisions of
the title deed.

[23] In relation to the counterclaims, the respondent stated that:
[23.1] The appellant cannot simultaneously allege that , in so far as she is a
member of the respondent, the respondent was obliged to collect levies
and special levies and in the same breath refuse to make payment of
such levies and special levies and admit to not making any payments.
[23.2] The appellant cannot plead that , although she was not a member of the
respondent , there were members of the respondent who were obliged to
pay levies and special levies and from whom the respondent was
obligated to collect levies and special levies , without specifying on what
basis such other owners are to be members.
[23.3] The appellant’s suggestion that her property no longer has any value is
without foundation in fact or in law.

[24] Referring to the appellant’s admission of having made payments to the
respondent from time to time, the respondent contend ed that the appellant ha d
failed to set out any basis for such payments other than her being a member of
the respondent and being liable to make payment of levies to the respondent.

The affidavit resisting summary judgment
[25] In her affidavit resisting summary judgment, the appellant objected to the
respondent raising the prescription issue in its supporting affidavit, contending

3 Act 68 of 1969 .
that the respondent may only address the special pleas by way of a replication,
which it had not done. On the appellant’s calculations, at least R 40 850.00
had become extinguished by prescription.

[26] In relation to the membership issue , the appellant admit ted being a registered
owner of the property. She contended that the relationship between a
homeowners’ association and its members is contractual in nature, and that a
member becomes a member consensually. Her case is that the provisions of
the title deed do not result in an automatic member ship of the respondent and
a subscri ption to its MOI , and that a separate legal act was required for her
accession . The separate legal act entails her being re gistered as a member.

[27] In respect of her counterclaim, the appellant contend ed that the respondent did
not deny the market value of the appellant’s property (and attached a copy of a
building contract as well as the offer to purchase she made in acquiring the
property); nor did it deny the tacit term in the MOI she contends for; it did not
deny that the respondent failed to acquit itself of the obligations alleged by the
appellant notably including the collecting of levies of some 20 named members
of the HOA.

The judgment of the court below
[28] The court below found against the appellant on all scores and granted
judgment in favour of the respondent as claimed.

[29] In relation to the membership issue , the magistrate reasoned that the
appellant’s defence emphasised the contractual nature of the relationship
between a hom eowners association and its members. The court below
rejected the appellant’s submission that her membership of the HOA required a
separate legal act . It held that the terms and conditions of a title deed are
binding and sacrosanct, and that the appellant’s argument that an agreement
between the owner and the HOA post -transfer undermines the inherent
certainty provided by a title deed. The interpretation contended for by the
appellant would lead to absurdity as it would necessitate a single body to
impartially manage disparate contractual relationships among multiple
members. Accordingly, the magistrate held that the defence is not only
needlessly bald, but also “ clearly bad in law ”.

[30] In respect of the baldness of her defence regarding the membership issue, the
court below held that the appellant failed to plead the material facts in support
of her denial of membership, she made no mention of her knowledge or not of
the terms of the title deed of her property, nor did she deal with the MOI in
place prior to the adoption of the most recent version in 2015, and her
membership prior to 2015 . Additionally, the respondent did not dispute the
contents of schedule of payments.4

[31] In respect of the prescription issue , the court below rejected the appellant’s
submission that the respondent was not entitled to deal with it in its supporting
affidavit. The written judgment only refers to respondent’s argument on the
interruption of prescription based on the provisions of section 13(1)(e) of the
Prescription Act, finding that given the appellant’s failure “to provide a bona fide
defence concerning membership, by neglecting to disclose the grounds of her
defence, it logically follows that the [respondent’s] defence of prescription also
lacks bona fide .”

[32] In relation to the counterclaims, the court below held that the failed to set out in
sufficient particularity, the grounds why the respondent would owe her a duty in
circumstances when she was not a member of the HOA. The magistrate
commented on the contradiction in the appellant’s respective versions in
respect of the defence presented to it and the counterclaim the appellant’s
intend ed pursuing in the High Court , describing it as clearly disingenuous. The
court below found the counterclaim to be sketchy and the appellant’s intention
clearly being to delay the proceedings and impede the respondent’s claim by
seeking a stay the proceedings in the lower court and pursue her counterclaim
in the High Court.


4 Annexure “D” to the particulars of claim .
The grounds of appeal
[33] The appellant’s notice of appeal contains 18 grounds which can conveniently
be grouped under four headings :

[33.1] In respect of the prescription issue, t he magistrate ought to have found
that the special plea of prescription constituted at least a partial defence .
[33.2] The magistrate erred because the excipiability of the particulars of
claim makes it impossible for the respondent to verify a complete cause
of action, thus rendering the application for summary judgment fatally
defective (“the excipiability issue ”).
[33.3] The court below ought to have found that the particulars of claim were
excipiable as they lack averments to sustain a finding that the appellant
was in fact a member of the HOA (“the membership issue ”).
[33.4] The magistrate misdirected himself regarding the main counterclaim
being conditional and erred in holding that the counterclaim was a
delaying tactic ( “the counterclaim issue ”).

The merits of the appeal
[34] I am satisfied that the order of the court below must stand. I deal with each of
the issues on appeal below.

The prescription issue
[35] A claim such as the respondent’s is a “debt” subject to a three year prescription
period. By virtue of section 15 (1) of the Prescription Act, s ervice of the
summons on 9 January 2023 interrupted prescription of the respondent’s claim .
Thus, bar any other form of interruption, any amounts due earlier than 9
January 2000 would have become extinguished. The appellant’s defence is
that HOA lost its right of action against her, and at least R 40 850.00 of the
respondent’s claim had become extinguished.

[36] The respondent’s response to the extinctive prescription issue is premised on
two bases:

[36.1] Firstly, the appellant being a member of the governing body of the
HOA, that the running of prescription has been delayed by virtue of
section 13(1)(e) of the Prescription Act which provides for a delay of
prescription states that:
“If –
…
(e) the creditor is a juristic person and the debtor is a member of
the governing body of such juristic person ;
…
(i) the relevant period of prescription would, but for the
provisions of this subsection, be completed before or on, or
within one year after, the day on which the relevant impediment
referred to in paragraph … (e) … has ceased to exist,
the period of prescription shall not be completed before a year has
elapsed after the day referred to in paragraph (i).” [own emphasis]

[36.2] Secondly, that the appellant’s payment of an amount 16 February 2021
interrupted prescription as envisaged by section 14(1) of the same
Prescription Act which provides:

“(1) The running of prescription shall be interrupted by an express or
tacit acknowledgement of liability by the debtor.
(2) If the running of prescription is interrupted as contemplated in
subsection (1), prescription shall commence to run afresh from the day
on which the interruption takes place or, if at the time of the interruption
or at any time thereafter the parties postpone the due date of the debt
from the date upon which the debt again becomes due. ”

[37] In the heads of argument filed on behalf of the appellant, the judgment of the
court below on the prescription issue was described as “ somewhat strange ” in
that the magistrate did not make an actual finding on the issue, and it was
submitted that there is no logic to the finding that, because the appellant did not
disclose a bona fide defence on the membership issue it logically followed that
the defence of prescription also lacks bona fides. The appellant also criticised
as illogical and difficult to comprehend, the finding that absent genuine grounds
to dispute membership, which would trigger the applicability of section 13(1)(e)
of the Prescription Act as a triable issue, the defence of prescription is not bona
fide.

[38] Before this Court, t he appellant again pressed the argument that , absent a
replication, the respondent was not permitted to address the prescription issue
in its verifying affidavit to the application for summary judgment.

[39] Whilst the judgment of the court below is scant on its reasons, it is patent that
the prescription defence was rejected , and correctly so .

[40] Firstly , I am satisfied that the provisions of section 17 of the Prescription Act do
not assist the appellant. Subsection (1) prevents a court of its own from taking
notice of prescription. Subsection (2) mandates a litigant who seeks to invoke
prescription , to do so in the relevant document filed of record in the
proceedings. The proper way to raise prescription is by way of a special plea,5
which is what the appellant did. This having been one of her defences,
Magistrates’ Court Rule 14(2)(b) required the respondent explain briefly why
the prescription issue does not raise an issue for trial, which it did on two
bases. There is accordingly no merit to the appellant’s objections in this
regard.

[41] Secondly , denying as she does in the main, that she is a member of the HOA,
the appellant did not explain why , despite her denial of liability to do so, she
made the payments to the respondent. She also did not seek repayment of any
of the amounts she had paid to the respondent. As will appear later in this
judgment, I am satisfied that the appellant’s denial of her membership of the
HOA is not bona fide , and that she is in fact a member of the HOA . I am
however not satisfied that she was “a member of the governing body ” or a
director of the HOA, which would cause a delay in the running of prescription

5 Rand Staple -Machine Leasing (Pty) Ltd v ICI (SA) Ltd 1977 (3) SA 199 (W) .
of the respondent’s claim against her by virtue of the provisions of section
13(1)(e) of the Prescription Act .

[42] Thirdly , the appellant did not dispute the contents of the statement of account
nor that her most recent payment had been made on 16 February 2021, being
less than three years prior to the institution of the action in the court below. Mr
Prinsloo, for the respondent, relying on Eerste Nasionale Bank Van Suidelike
Afrika Bpk v Vermeulen,6 persuasively argued that the appellant’s account with
the respondent is a running account akin to a current banking account, and that
each of her payments to the respondent constituted an acknowledgement of
her liability which interrupted prescription, as envisaged by section 14(1) of the
Prescription Act. It was also argued that, but for a bald denial, t he appellant
presented no material facts to negate the presumption that her payments to the
respondent amounted to anything but an admissions of liability.

[43] Accordingly, the respondent’s claim has not been extinguished, and the
prescription defence lacks merit and thus does not constitute an issue for trial.

The excipiability issue
[44] The excipiability and membership issues are intertwined and centre around the
appellant’s contention that her accession to membership of the HOA demand ed
more than just the terms of the title deed in relation to her property .

[45] The magistrate held view that the “new” summary judgment procedure
discounted a “ defence of excipiability ” as the appellant had already pleaded to
the supposed defective particulars of claim. In this regard, he was mistaken.

[46] The rules of court do not attempt to curb the power of a court to order that an
exception stands over for the trial’s court’s decision in situations such as where
a proper determination of the exception is bound up with the merits of the

6 1997 (1) SA 498 (O).
dispute.7 An “informal” exception may be raised at trial, at the risk of an
adverse costs order .8

[47] A litigant’s failure to raise a formal exception against a pleading does not
amount to a n embargo from doing so in opposition to an application for
summary judgment. A defendant is entitled to attack an application of summary
judgment on any aspect. When a defendant attacks the particulars of claim on
the basis that it does not sustain a valid cause of action, it is not strictly a
defence but rather raises the question whether the summary judgment
application complies with the provisions of the rule requiring the plaintiff to
verify the cause of action.9

[48] Accordingly, the appellant was fully entitled to adopt her attack even i f she
never filed an exception against the particulars of claim. If the particulars of
claim did not sustain a valid cause of action, summary judgment ought to have
been refused. But as found, the respondent’s particulars of claim were not
excipiable .

The membership issue
[49] At its core and relying on Cohen NO v Deans10(Deans) , the appellant ’s
argument is that the deponent to the respondent’s verifying affidavit could not
validly verify the pleaded cause of action, as it was excipiable, and thus
summary judgment could not be granted. The facts and the reason for the
finding in Deans differ s from th e present case. The central point made in Deans
was that the verification of the cause of action for the payment claimed was not
based payment due but on an entitlement to payment pleaded based on
incorrect terms of the Trust Deed .


7 E.g. Minerals & Quarries (Pty) Ltd v Henckert 1967 (4) SA 77 (SWA) at 84 .
8 E.g. Algoa Milling Co Ltd v Arkell & Douglas 1918 AD 145 ; Myers v Shraga 1947 (2) SA 258 (T) ;
Allen and Others NNO v Gibbs 1977 (3) SA 212 (SE) ; Ngwenya v Hindley 1950 (1) SA 839 (C) .
9 Arend and Other v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 314 A – B; Cohen NO and
others v Deans (368/2022) [2023] ZASCA 56 (20 April 2023) at [22].
10 (368/2022) [2023] ZASCA 56 (20 April 2023) .
[50] In the present case, verification contention is based on the disputed
membership. In this regard, I am satisfied that the particulars of claim is not
excipiable.

[51] The respondent is a non -profit company, incorporated in 2004 in terms of the
1973 Act. The appellant became the registered owner of the property in
August 2007, when the 1973 Act was in force. Accordingly, the membership
issue must first be determined with reference to the 1973 Act. Section 103 of
the 197 3 Act defines the members of a company as being :

“ (1) The subscribers of the memorandum of a company shall be deemed to
have agreed to become members of the company upon its incorporation,
and shall forthwith be entered as members in its register of members.
(2) Every other person who agrees to become a member of a company
and whose name is entered in its register of members, shall be a member
of the company .” [own emphasis]

[52] At the time of incorporation of the respondent, the appellant was not yet the
registered owner of the property and could not have “subscribed for
membership .” Accordingly subsection (1) does not find application and t he
membership issue must be determined with reference to the provision of
section 103(2) of the 197 3 Act.

[53] The appellant accept ed that t he relationship between her and the respondent is
contractual in nature but submit ted that the particulars of claim were silent on
the existence of such a n agreement between the parties or her name having
been entered into the register of members. This submission loses sight of the
difference between facta probanda (the essential facts of the cause of action)
and facta probantia (the evidence to prove the essential facts), and of the duty
which rested on the appellant to set out fully the nature and grounds of her
defence. The appellant’s response was nothing but a bare denial of
membership. She proffered no grounds for her denial of membership, such as
her name not having been entered into the register of members .

[54] In its judgment and referring to the sacrosanct nature of a title deed, the court
below held that t he appellant’s defence of res inter alios acta , suggesting a
separate agreement with the HOA after registration of transfer, undermines the
inherent certainty provided by a title deed . It also found that the interpretation
contended for would lead to absurdity as it would imply the potential for an
impasse : while the transfer of ownership has occurred and the new owner is
duly reflected, the prospect of reaching a definitive agreement remains
uncertain. Accordingly, the magistrate held the defence of res inter alia acta not
only needlessly bald, but also bad in law.

[55] I agree that the defence is bad in law, but for different reasons.

[56] Under the 1973 Act, the appellant would have become a member of the HOA
upon fulfilment of the requirements of section 103. In his Commentary on the
Companies Act , Prof Blackman, at 5 -292, which forms part of an analysis of
section 103 of the 1973 Act, writes: “In all other cases, both agreement to
become a member and entry in the register are essential (s 103(2) and (3)). A
person cannot become a member of a company without having expressly or
impliedly agreed to become a member, and hence the unilateral act of a
company in wrongfully placing a person's name on its register of members
does not make that person a member. … A person agrees to become a
member when he assents to become a member; i t is not necessary that there
be a binding contract between him and the company; and therefore where the
name of a person is entered in the register with his consent, he is a member. A
person who is aware that his name has been placed on the register without his
consent, and who fails to take responsible steps to ge t the company to rectify
its register, may, in the circumstances, be taken lo have impliedly acquiesced to
become a member .” [footnotes omitted , underlining added ]

[57] To become a member of the HOA, the appellant had to agree to become and
member, and her name had to be placed on the register. Once these
requirements are met, the appellant is a member of the HOA.

[58] It was the respondent’s pleaded case that by virtue of being an owner of the
property she became a member of the HOA and “a subscriber ” of the MOI,
having regard to the title deed. The MOI complied with the applicable
legislation as well as the Companies Act and is binding on both the appellant
and the respondent by virtue of the Companies Act.

[59] The appellant contended that a separate legal act was required for her
membership, but what the nature of that legal act ought to be was not detailed
during argument.

[60] It was argued on her behalf that by virtue of the provisions of section 2(b) of
Schedule 1 to the 2008 Act, the appellant “ must not presume the membership
of any person, regard a person to be a member, or provide for the automatic or
ex officio membership of any person, on any basis other than life -time
membership awarded to a person - (i) for service to the company or to the
public benefit objects set out in the company's Memorandum of Incorporation;
and (ii) with that person's consent. ” But i t was not the appellant’s case in her
plea or her affidavit resisting summary judgment that her name was not entered
into the register of members, or that she had not consented to being a member
of the HOA.

[61] Ostensibly, neither party nor the court below took into consideration the terms
of the offer to purchase attached to the affidavit resisting summary judgment.
This Court raised those terms at the hearing.

[62] When the appellant chose to purchase the property, she agreed to become a
member of the HOA and to be bound by its rules.11 Her assent thereto appears
from the offer to purchase she concluded with the seller on 2 May 2007.

[62.1] Clauses 17.1 provides that the purchaser (the appellant) acknowledges
that she is required upon registration of the property to become a member
of the Homeowners Association and agrees to do so in accordance with

11 Mount Edgecombe Country Club Estate Management Association II RF NPC v Singh And Others
2019 (4) SA 471 (SCA) at [19].
the Memorandum and Articles of Association, which document shall be
deemed to have been accepted by the purchaser upon signature of the
offer to purchase . [underling added]
[62.2] In clause 17.2, she agreed to, for as long as she is the registered
owner of the property, remain a member of the Association and be bound
by its Memorandum and Articles of Association.

[63] Accordingly, at the time of her offer to purchase the property, the appellant had
assented to becoming a member of the HOA, and it was not necessary for the
appellant and the respondent to enter into a separate transaction to accord the
appellant membership of the HOA.

[64] At the commencement date of the Companies Act, Act 71 of 2008 on 1 May
2011 (“the 2008 Act”):
[64.1] The respondent was a non -profit company.
[64.2] The respondent was a pre-exiting company for purposes of the 2008
Act, being a “ a juristic person that, immediately before the effective date
was registered in terms of the [1973 Act]..”12
[64.3] As a pre -exiting company, the respondent “continued to exist as a
company, as if it had been incorporated and registered in terms of [the
2008 Act ], with the same name and registration number previously
assigned to it. ”13
[64.4] The respondent , as a pre -existing company incorporated in terms of
section 21 of the 1973 Act “ is deemed to have amended its Memorandum
of Incorporation as of [1 May 2011 being] the general effective date to
expressly state that it is a non -profit company, and to have changed its
name in so far as required to comply with section 11 (3) .”14
[64.5] The appellant was a member of the respondent .

[65] The MOI adopted at the September 2015 meeting provides that those persons
who qualified for membership immediately prior to the adoption of the MOI,

12 The definition of a company in s ection 1 of the 2008 Act .
13 Section 2(1) of Schedule 5 to the 2008 Act .
14 Section 4(1) (a) of Schedule 5 to the 2008 Act .
such as the appellant, remain members , and it does not contain any
presumption of membership in contravention of section 2 of Schedule 1. The
court below appropriately remarked on the appellant’s failure to deal with the
MOI in place prior to 2015 and whether she dispute being a member prior to the
adoption of the most recent MOI. It was also correct in finding that the
appellant did not indicate whether she disputes the former MOI nor that she did
not detail the reasons for her resistance to the 2015 MOI.

[66] In fact, t he minutes of the in the annual general meeting of members of the
HOA of 12 September 2015 , during which the new MOI was adopted by the
HOA, evidence the appellant having granted a proxy to the chairman of the
HOA . The inescapable conclusion is that that the appellant must have
regarded herself as a member at the time .

[67] In the circumstances, there is no reason to upend the finding of the court below
that the appellant did not disclose the grounds of her defence, and she did not
satisfy the court below that she has a bona fide defence regarding her
membership of the HOA.

The counterclaim issue
[68] It is trite that an unliquidated counterclaim may be set up as a defence to an
application for summary judgment ,15 and that such a counterclaim should be
considered in the same way as a plea for the court to consider whether the
counterclaim is frivolous, unsubstantial and intended only to
delay.16 Therefore , a defendant must set out the grounds of its counterclaim
with sufficient particularity to satisfy a court that it is bona fide .

[69] The interplay between the provisions of Magistrates’ Court Rules 14 and 17(4)
allows for an overriding discretion to refuse summary judgment even where a
defendant’s opposing affidavit does not pass muster.17 The refusal of summary

15 Weinkove v Botha 1952 (3) SA 178 (C).
16 Du Toit v De Beer 1955 (1) SA 469 (T) at 473; HI Lockhat (Pty) Ltd v Domingo 1979 (3) SA 696
(T) at 698; Muller and Others v Botswana Development Corporation Ltd 2003 (1) SA 651 (SCA) .
17 Soil Fumigation Services Lowveld CC v Chemfit Technical Products (Pty) Ltd 2004 (6) SA 29 (SCA)
at [11] .
judgment constitutes a postpone ment of judgment on the plaintiff’s claim, which
requires a defendant to persuade the court that good cause exists to do so , and
which the court will determine by exercising a wide judicial discretion “ in
accordance with the tenets of justice, fairness and reasonableness, and with
reference to all the relevant facts and circumstances. ”18

[70] The appellant’s main counterclaim is conditional upon a finding that she
became and remains a member of the HOA. She contend ed for a tacit term of
the MOI , and in the alternative, in the event of her not being a member, a legal
duty towards her , which the HOA had breached . in that:

[71] As a result of the alleged breaches, the defendant contends she suffered
damages being the difference of the market value of her property when she
acquired it and the present market value.

[72] I am satisfied that b oth the appellant’s counterclaim and her opposing affidavit
lack allegations to support a finding that the main and/or alternative
counterclaims are bona fide, on the bases proffered on behalf of the
respondent .

[73] In respect of the main conditional counterclaim, the appellant’s complaint is that
the because the HOA had not acquit its obligation to collect levies, it was not
able to maintain the infrastructure of the estate. The court below appeared to
have lost sight of the conditional nature of the counterclaim, when finding a
glaring contradiction between the defence presented on the membership issue
and the counterclaim. In this he erred, however, he correc tly found the
appellant had not assert ed material facts to support her allegation that the HOA
failed to collect levies – rather ironic given the respondent’s claim against her .

[74] In respect of the alternative counterclaim , the court below cannot be faulted for
its finding that the appellant fail ed to detail grounds for why the respondent
would owe her the legal duty when she is not a member of the HOA .

18 Consol Ltd t/a Consol Glass v Twee Jongegezellen (Pty) Ltd and another 2002 (2) SA 580 (C) at
[20].

[75] Absent such material facts or grounds, the counterclaim was sketchy and did
have the hallmarks of a delaying tactic.

[76] Ultimately, the court below cannot be faulted for finding that the counterclaim
did not amount to a bona fide defence for purposes of averting the application
for summary judgment. This finding amount ed to judgment being granted in
favour of the respondent akin to the procedure envisaged in Rule 17(4). The
finding does not result in the doors of court being finally closed on the
appellant. She remains at liberty to pursue her claims against the respondent
by issuing summons in the appropriate division o f the High Court .

Order
[77] In the result, the appeal is dismissed with costs, including counsel’s fees on
scale C.

SARITA LIEBENBERG
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
I agree

NTY SIWENDU
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG

This order is made an Order of Court by the Judges whose names are reflected
herein, duly stamped by the Registrar of the Court, and is submitted electronically to
the Parties / their legal representatives by email. This Order is further uploaded to the
electronic file of this matter on Caselines/CourtOnline by the Judges’ secretaries . The
date of this order is deemed to be 21 January 2025.


For the appellant: Adv D Marais
Instructed by: Mohamed Randera & Associates (Ref M Randera)
For the respondent: Adv WJ Prinsloo
Instructed by: Rooseboom Attorneys (Ref: C Rooseboom)
Heard on: 21 November 2024
Judgment on: 21 January 2025