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[4] This firm of attorneys had two matters on my opposed roll and it appears that
they set matters down regularly on the summary judgment rolls of this court.
[5] I have marked this judgment “of interest to other judges” for this reason.
[6] The plaintiff is a body corporate and the defendant is a homeowner in the body
corporate scheme. The defendant, as such, is liable for levies charged as part of
a running account.
[7] The defendant pleads that he has made payment under the AOD. He provides
details of his payments.
[8] It seems that these payments are not disputed. However, the argument raised
is that the plaintiff has appropriated these payments for other items of
indebtedness which have accrued since the signing of the AOD.
[9] The AOD is signed in the context of a running account and apparently in
circumstances where the defendant has indicated in the context of a “debt
management solution ” offered to him , that he wishes to enter into an
arrangement that will allow him to meet any accrued debt by way of instalments
over a set period.
[10] The defendant alleges that, on reflection on the charges on the account he sees
that through this deb t management solution he is made subject to numerous
illegitimate charges on this account , chief amongst which are the plaintiff’s
attorneys own substantial charges. There are also, prima facie, illegitimate water
charges made to the account by the plaintiff which , the defendant argues have
no foundation in law. This, to my mind, raises a triable issue.
[11] A further triable issue which arises is whether it is competent for the plaintiff body
corporate to raise unlawful charges against homeowners as part of the payment
scheme to which they are subjected on becoming an owner in the applicable
body corporate. And, for that matter, whether the scheme would be capable of
such a construction.
[12] Arguably, the seeking of payment of fees which the body corporate would, in the
[12] Arguably, the seeking of payment of fees which the body corporate would, in the
normal course, not lawfully be able to charge were it not for the imposition of an
3
AOD would be contrary to the nature of a body corporate schemes and, at very
least, questionable on the principles considered in Beadica 231 CC and Others
v Trustees for the time being of the Oregon Trust and Others (CCT109/19) [2020]
ZACC 13; 2020 (5) SA 247 (CC); 2020 (9) BCLR 1098 (CC) (17 June 2020)
[13] The relatively small amount claimed in the context of High Court costs of process
is cause for concern. Prima facie, I accept that the claiming of an amount of little
more than R17 000 in the High Court is uneconomical when reference is had t o
costs.
[14] The plaintiff’s attorneys appear to be in control of the debt collection process .
Thus, it is arguable that the plaintiff’s function, which has a statutory function in
relation to the proper and fair management of the complex, has been abdicated
to a process designed by the attorneys and which extends to the litigation phase
of the recovery.
[15] It seems that from the moment of hand-over of the debt the communications are
with the attorneys rather than the trustees of the plaintiff. The AOD seems
standard to the process and the plaintiff’s domicilium under the agreement is care
of the attorneys. It should be noted that this is before any litigation begins.
[16] Thus, it may be that the default in relation to payment of levies is administered
by the attorneys and not directly by the plaintiff. This may include the
determination and alloc ation of co sts which flow to the attorn eys. Whether the
plaintiff gives instructions to embark on litigation by way of resolution is not clear.
There is no indication that this is the case. There is also no indication of how the
proceeds of litigation are managed.
[17] It seems that the approach adopted by the plaintiff is this. The body corporate
assisted by the attorneys draw s up acknowledgments of debt when owners fall
into arrear with their levies ; these acknowledgments cover the attorney’s own
charges on the scale as between the plaintiff and the attorneys; the High Court
charges on the scale as between the plaintiff and the attorneys; the High Court
summary judgment processes are used to collect on these charges ; there is
reasonable expectation that, given that the indebtedness is reduced to an
acknowledgment of debt there will be no examination of the underlying charges
and it will be difficult for the defendant to raise a bona fide defence.
5
FISHER J
JUDGE OF THE HIGH COURT
JOHANNESBURG
This Judgment was handed down electronically by circulation to the
parties/their legal representatives by email and by uploading to the
electronic file on Caselines. The date for hand-down is deemed to be 0 6
March 2026.
Date of Hearing: 04 March 2026
Date of Judgment: 06 March 2026
Appearances:
Counsel for the Plaintiff: Adv T Mirtle
Attorneys for the Plaintiff: SCHÜLER HEERSCHOP PIENAAR
Attorney for the defendant : Mr K M Mabale of KM MABALE & ASS