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2026
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[2026] ZAGPJHC 245
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Cilaos Body Corporate v Tsengiwe (2023/072383) [2026] ZAGPJHC 245 (6 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE NO: 2023-072383
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
In
the matter between:
CILAOS
BODY CORPORATE
Applicant
(Respondent in leave to appeal)
and
SARAH
SEBONGILE TSENGIWE
Respondent
(Applicant in leave to appeal)
JUDGMENT
D’OLIVEIRA AJ
[1]
This is an application for leave to appeal
against the judgment handed down on 6 June 2025.
[2]
The applicant in this application for leave
to appeal was the respondent in the main application. The
respondent in this application
for leave to appeal was the applicant
in the main application. In this judgment, I will refer to the
parties as in the main
application.
[3]
The respondent in written and oral argument
pressed three grounds of appeal out of those set out in the
application for leave to
appeal on 2 July 2025.
[4]
The first ground was that the Court had
erred in finding the respondent liable for legal fees.
[5]
The second ground is that the Court had
erred in finding that the respondent is liable for default interest
charged by the applicant.
[6]
The third ground is that the Court had
erred by failing to take into account a judgment obtained by the
applicant against the respondent
in the Magistrate’s Court
relating to the same debt.
[7]
The main basis for the challenge to the
Court’s findings regarding legal fees was that the applicant
was not authorised to
do so. This was, so the submission went,
because the trustee resolution on which the applicant had acted was
only signed
on 17 January 2023 and had only been signed by two
trustees. The respondent argued that the Court, therefore, had
erred in
finding that the applicant was authorised to charge legal
fees from 2 December 2021. In making these submissions, the
respondent’s
counsel directed the court to annexure “FA1”
to the founding affidavit, which is a resolution, signed by two
trustees,
dated 17 January 2023.
[8]
But the Court’s findings were not
based on the resolution dated 17 January 2023 attached as “FA1”
to the founding
affidavit. The Court based its findings on 2 December
2021 attached as “FA7” to the papers, which authorised
the applicant
to charge the legal fees it did to the respondent’s
account. That resolution was signed by three trustees, although
Rule 10(2) published under the Sectional Titles Schemes Management
Regulations, 2016, provides that the signature of two trustees
is
sufficient.
[9]
The other aspect of the respondent’s
argument, relating to legal fees, was that the Court had erroneously
found that the respondent
was liable to pay a stated amount of legal
fees pre-December 2021. This is not what the Court found in the
judgment. In the
judgment, the Court recognised that Regulation
25.4 of the Sectional Title Schemes Management Act Regulations
required legal fees
to either be taxed or agreed. Since the
legal fees prior to December 2021 had not been taxed or agreed, the
Court directed,
in paragraph 5 of the order, that legal fees prior to
2 December 2021 should be taxed or agreed.
[10]
The primary basis for the second ground of
leave to appeal, relating to default interest, was the same as the
first ground.
Argument was made on the incorrect premise that
there did not exist a valid resolution authorising the debiting of
default interest
because this had only come into existence on 17
January 2023. As I have already pointed out, this submission
was without
merit in view of the resolution dated 2 December 2021,
which authorised the debiting of interest at 2% per month. As for the
alleged
lack of authority to debit default interest prior to 2
December 2021, this was not pertinently challenged in the answering
affidavit.
[11]
During the course of the oral submissions,
however, it became clear that this ground of leave to appeal was not
limited to the
entitlement
to charge default interest. The
correctness
of the default interest charged was put into question. In this
regard, the Court was directed to paragraph 2.11 of the answering
affidavit which reads as follows:
“
The Respondent is of the
opinion that the Body Corporate are overreaching with regards to
Attorney fees and Interest charged in
the Customers Statement. e.g.
Within a period of 3 months, Between the month of Jul - Sep 2020 an
estimated amount R9000 (NINE
THOUSAND RANDS) in legal fees was
invoiced on the customer account, In addition that, an Interest of 2%
was charged monthly towards
that.
”
[12]
This point has merit.
[13]
In the judgment, it was held that the
respondent was liable for legal fees prior to 2 December 2021, but
that it was necessary for
such legal fees to taxed or agreed.
[14]
I have reviewed the comprehensive statement
of account of the respondent again. It shows that legal fees in the
amount of R 37 236.61
were debited to the account between
1 December 2018 and 17 November 2021. Not only this, but default
interest was charged
on all overdue amounts, including the legal
fees.
[15]
The result was that, while the applicant
made payments to reduce the outstanding balance on her account, the
balance outstanding
on 1 December 2021, the day before the 2 December
2021 resolution referred to above, was R 28 550.58.
[16]
But on the reasoning in the judgment, and
according to Regulation 25(4), a member is liable for “
reasonable
legal costs, as taxed or agreed by the member
”.
At the time the pre-2 December 2021 legal fees were debited to the
respondent’s account, however, they were neither
“
taxed
or agreed
”.
[17]
It follows that, while the respondent may
be liable in principle to pay pre-2 December 2021 legal fees as was
held in the judgment,
the applicant wrongly debited them to the
applicant’s account in the period prior to 2 December 2021.
They were not yet “
taxed or
agreed
”.
[18]
It follows that, even if the applicant was
authorised to charge default interest, it wrongly charged default
interest on the pre-2
December 2021 legal fees both prior to 2
December 2021, and post 2 December 2021 (to the extent that the
balance outstanding of
R 28 550.58 was carried forward).
[19]
I have given thought to whether I should
attempt to separate out the pre-2 December 2021 legal fees, and the
interest thereon, and
grant leave to appeal against part of the
judgment only. But because default interest was charged both before
and after 2 December
2021 on the balance outstanding on the
respondent’s account, I am not in a position to ascertain the
indebtedness of the
respondent, but for the wrong debiting of her
account with legal fees.
[20]
In the circumstances, I am satisfied that
leave to appeal against the judgment as a whole should be granted.
[21]
Having come to this conclusion, it is not
necessary for me to consider the third ground.
[22]
The following order is made:
1.
Leave to appeal is granted to the Full
Court.
2.
The costs of the application for leave to
appeal will be costs in the appeal.
D’OLIVEIRA
AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Heard:
2 December 2025
Decided:
6 March 2026
For
the Applicant:
Adv Simelane
For
the Respondent:
Adv R Smith
instructed by Heerschop Pienaar
Attorneys