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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
(I} REPOPT ABl.E: :a;~ NO
(2) 01 INTEREST TO OTHER JUDGES. ~/NO
(3) RMS© .
;;J!J!!!"------
In the matter between:
HERBERT DUBE
HrLOAH DUBE
and
-~-~ !J.l.?::--9.4
DArJ''
CASE NUMBER : 2023-036536
2022-046773
1st Excipient/151 Defendant
2nd Excipient/2nd Defendant
HARBOUR TOWN HOMEOWNERS ASSOCIATION NPC Respondent/Plaintiff
and in the matter between
NEIL COTHILL
and
HARBOUR TOWN HOMEOWNERS ASSOCIATION NPC
Heard~
Oelivere~
YACOOB. J:
12 June 2025
20 November 2025
JUDGMENT
Excipiant/Defenda nt
Respondent/Plaintiff
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[1} The respondent in these two exceptions ("Harbo.ur Town ") has issued
summons against the respective excipients ("the Oubes• and "Cothill") for payment of
levies it contends are due and owing. The excipients each delivered exceptions to
Harbour Town 's pacllculars of claim on the basis that the particulars lack averments
necessary to sustain a cause of actfon.
[2] The exciplents in both matters are owners of properties which fall within a
residential estate of which the-respon~ent is the hom eowners' association. The basis
of the exception now before me 1 in both matters is that the particulars.do not contain
averments which sustain a conclusion that the excipients are members of Harbour
Town , orthattney are bound by Harbour Town 's Memorandum of Incorporation.
[3) Both the excipients before me became owners of properties within the estate
after the establishment of Harbour Town . It is pleaded that the title deeds of the
properties contain recordals that the owner of the relevant property becomes a
member of Hartiour Town and subject to its constitution2 for as long as they are an
owner, and that no property within the estate may be transferred to someone who has
not bound themselves, to the satisfaction of Harbour Town, to membership of Harbour
Town, and that an owner may not transfer such a property without a clearance
ceril'ficate from Harbour Town.
[4] The basis of the exception is that the averment regarding the provision in the
title deed, without more, does not sustain a conclusion that a purchaser of property
within the estate becomes , on transfer of the property, and without more, a member
of Harbour Tow n, and party to and bound by Harbour Town 's constitution, for as long
1 There were previous exceptions but the particulars were amended . and new exceptions delivered
'The constitution is .identical to the Memorand um of Incorporation
3
as they are an owner, and that the respectiv~ purchaser Is bound by the Memorandum
of Incorporation in terms of the Companies Acl 3
[5] Before the matter was heard, the attorney 0f record for the Dubes filed a notice
of withorawal as attorneys ofTecord. The Dubes had lnitfally been represented by the
sam~ attorney and counsel as Mr Cothill, and the Issues are the same . The Dubes dfd
not appear at the hearing. Mr Dobie, for the plaintiff/respondent, requested that the
exceptfon be dealt with substantively rather than on the basis of non-appearance.
Since the exceptions are identical, it is convenient to deal with lhem in a single
ludgment.
[6] At ·the time of hearing I was Informed that there was another, identical,
exception that had been already argued before my brother Aucamp AJ . and that there
were other similar cases awaiting hearing. Aucamp AJ has since handed down
judgment, which was brought to my attention by the partles, both of whom declined to
make further submisslons.4
[7] I was also referred to a judgment in a Full Bench appeal, Mtsha/1 v Harbour
Town Homeowners Associatian,5 which dealt with similar Issues, but I was Invited to
find that the issue now before me was not dealt with, and that the judgment ts
distinguishable. As may be inferred from the names of the parties in that appeal, the
respondent in that ma .tter was also the respondent/plaintiff in these two matters, and
the appellant an owner from whom arrear levies were claimed.
• The .exception refers to the 2008 Comparues Act, but the Partfculats of Claim do not specify which
Companies Act 1s referred to, and since membership is alleged to have occurred in 2007, the llkefihood
is that the 1973 Act is meant
• Harbo11r Town Homeowners Association NPC v Viba 2025 JDR 3347 (GJ )
5 12025) ZAGPJHC 84 (21 January 2025)
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(8] The appellant in Mtshali raised the same points in the appeal as is now raiseel
fn the exceptions, although as defence to summary judgment rather than as an
exception. However; that particular issue, of whether Ms Mtshali's membership of
Harbour Town was sufficiently made out in the pleadings, was dealt with differently
because there was an affidavit resisting summary judgment, in which Ms Mtshall
provided merely a bald denial of membership. In this case, there being no affidavits
and no plea, the issue is simply whether the particulars of claim contain averments
that support the legal conclusion of membership and being bound.
[9] It was argued before me, although not articulated In the exception, that an
additional step was ne~ssary, of entering the owner's name into the register of
members of Harbour Town , to complete the owner's membership of Harbour Town,
and make the owner subject-to the Memorandum of Incorporation. This was consistent
with the provisions of section 103(2) of the Companies Act, 63 of 1973 which provides
that a person who agrees to become a member otthe company after itis incorporated,
and whose name is entered in the register of members becomes a member of the
company . It seems to me that this point was raise.d as a result of the Mtshali judgment
in which it was pointed out that there. was no allegation by Ms Mtshali of the basis on
which she denied rnernbersh1p. such as that her name had not been entered in the
register of members . This contention was also contained in supplementary heads filed
the day before the hearing.
[10J The Identical issues were raised, and in the same.mann·er, before Aucamp AJ,
and it seems that the facts and pleadings in Aucamp AJ's matter are cm all fours with
those before me.
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[11) Aucamp AJ, in Harbour Town Homeowners Associabon NPC v Viba,6
assuming In the excipient's favour that the issue was properly raised, found that the
formal fact of recordal in the register is merely evldence of the essentfal fact of the
owner's memoership of Harbour Town , and that the essential fact which needed to be
pleaded was that tbe owner is a member . The legal act needed was consent. which
was pleaded, and the entry in the register was only a consequence to that I cannot
find fault with that finding, and I believe ii is correct. There being nothing different in
these two matters. and neither party submitting that I should differ from Aucamp AJ, I
find similarly.
[12] As pointed out in the Viba judgment, the excipient raising an exception that no
cause of action is disclosed, must demonstrate that the conclusion of law on which the
plaintiff relies is not supported by any reasonable interpretation of the pleaded facts,
that it ls not possible to lead any evidence which will disclos·e or confin'n the existence
of the cause of action, and that the courts mu st take a common -sensical rather than
over technical approach.7
[13) It fs clear that the exception should not be sustained as it is entirely possible
to lead evidence on the point raised at the hearing_, and there is no other defrnitive
point in the excipients' favour.
• Note 4 above.
7 At para [11 I, relying on Low,mthal v Street Guarantee (Pty) Ltd [2017] ZAGPJHC 83 at (3]. H v Fera/
Assessment Centre 2015 (2) SA 193 (CC at [10] and McKe/Vey v Cowan NO 1980 (4) SA 525 (Z) al
526D-E.
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(14] For these reasons, I make the followfng or.der.
1. The exceptions are disrrussed with costs.
2. The defendants are directed to deliver their plea and any counterclaim
within 15 days of this Judgment.
S. YACOOB
JUDGE OF THE HlGH COURT
GAUTENG 0IVt51ON , JOHANNESBURG
Delivered· This judgment was prepared and authored by the Judge whose name
is reflected and is handed dowrr electronically by c1rcuJaUon to the Parties/their legal
representatives by ema 11 and by uploading it to the electronic rne of this matter on
Caselines The date for hand-down 1s de~med to be 20 November 2025
APPEARANCES
In case number 2023-036536·
For the excipient
For the respondent
!instructed by:
No appearance
JG Dobie
Rooseboom Attorneys
tn case number 2022-046773·
For the excipient
Instructed by:
For the respondent
Instructed by.
L Ho llander
Mohamed Randera & Associates
JG Dobie
Rooseboom Attorneys