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2026
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[2026] ZAGPJHC 331
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Copa Cabana Body Corporate v Griezel (2024/47628) [2026] ZAGPJHC 331 (26 March 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
2024-047628
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED:
In
the matter between:
COPA
CABANA BODY
CORPORATE
Applicant
and
CHYRISSE
GRIEZEL
Respondent
This
Judgment was handed down electronically and by circulation to the
parties’ legal representatives by way of email and
shall be
uploaded on caselines/courtonline. The date for hand down is deemed
to be on…………………………
JUDGMENT
MOGOTSI
AJ
Introduction
[1]
This is an opposed application in which
the applicant seeks summary judgment against the respondent for
payment of R32,594.26, representing
arrears interest and legal costs.
The applicant alleges that the said amount is due by the respondent
in her capacity as a member
of the sectional title scheme.
Background
[2]
The
applicant is a duly established body corporate for the sectional
title scheme known as Copa Cabana, registered under Sectional
Scheme
Number SS 749/1993. The respondent is a registered owner of a unit
within the scheme and is therefore a member of the body
corporate,
bound by its management and conduct rules and liable for
contributions in terms of the Sectional Titles Schemes
Management Act
[1]
(the
STSMA).
[3]
The applicant initially instituted an
action against the respondent to recover arrears of levies and
related charges. The applicant
initially claimed R77,594.26 in its
particulars of claim, supported by a levy statement dated 4 April
2024. The quantum was subsequently
reduced to R32,594.26 following
the respondent's partial payment, and this is the subject matter of
this application. The respondent
defended the action, prompting the
applicant to seek summary judgment.
[4]
The respondent raised two special pleas.
Firstly, the respondent is challenging the jurisdiction of the High
Court as a court of
first instance and is attacking the adequacy of
the particulars of claim, and secondly, the respondent asserts that
the applicant
lacked the necessary authority by way of a trustee
resolution to claim legal costs at the time the summons was issued.
Legal
Principles
[5]
A summary judgment is a drastic remedy
and should only be granted where the plaintiff has an unanswerable
case, and the defendant
has failed to disclose a
bona
fide
defence.
[6]
The court must guard against the abuse
of the summary judgment procedure. It is not intended to deprive a
defendant of their right
to a fair trial, but rather to prevent
frivolous or vexatious defences that serve only to delay the
resolution of the matter.
Analysis
[7]
Section
38(1) of the Community Schemes Ombud Service Act
[2]
(the CSOS Act) provides that any person may make an application to
the CSOS if they are a party to or affected by a dispute. Section
39(1)(e) of the CSOS Act specifically provides for an order for the
payment or repayment of a contribution. However, our courts
have
consistently held that the CSOS Act does not oust the High Court's
jurisdiction.
[8]
In
Bogatsu
and Another
v
108
on 8th Street Homeowners Association
[3]
,
the court confirmed that the CSOS Act does not expressly or impliedly
exclude the jurisdiction of the Magistrate’s
Court. By analogy,
the same applies to the High Court. In
Compeg
Services (Pty) Ltd
v
Sharon
Park Lifestyle Estate (NPC)
[4]
,
the court reaffirmed that the fact that CSOS could hear a matter does
not mean it must be, and a party is not barred from
proceeding
directly to court. Both the High Court and CSOS have concurrent
jurisdiction.
[9]
In
Standard
Bank of SA Ltd and Others v Thobejane and Others
[5]
,
the Constitutional Court reaffirmed that where a statute provides for
alternative venues, the initiating party retains the discretion
to
choose between them as a matter of practicality.
[10]
In light of these authorities, I find
that the High Court has concurrent jurisdiction with CSOS to
adjudicate this matter. The applicant
was within its rights to
institute action in this court. Accordingly, the first special plea
falls to be dismissed.
[11]
In
court, the respondent placed on the record that the principal debt
has been paid and that the only remaining amount in dispute
concerns
interest and legal costs. The respondent’s complaint regarding
the inadequacy of the particulars of claim, insofar
as it relates to
the calculation of the principal debt, therefore falls away.
However,
the dispute regarding the calculation of interest and the inclusion
of legal costs remains live and requires determination.
The
respondent disputes the interest charged at 24% per annum and the
inclusion of legal fees without taxation. These objections
are rooted
in the provisions of the Sectional
Titles
Schemes Management Act
[6]
(the STSMA) and its Prescribed Management Rules
[7]
(the PMR). Prescribed Management Rule 21(3)(c) provides that a
body corporate may charge interest on overdue amounts only
“on
the authority of a written trustee resolution”. The applicant
bears the onus of proving that such a resolution
was passed.
[12]
Prescribed Management
Rule 25(4)
provides
that a member is liable for reasonable legal costs and disbursements
as taxed or agreed by the member. The respondent has
not agreed to
the legal fees, and they have not been taxed. The unilateral
inclusion of such fees in the levy statement is therefore
premature
and irregular.
[13]
Critically, the resolution authorising
the recovery of legal costs was passed on 20 May 2024. The
summons in this matter was
issued prior to that date. It follows
that, at the time the proceedings were instituted, the applicant
lacked the necessary
internal authority to claim legal costs from the
respondent.
[14]
This is not a mere technicality. It goes
to the root of the applicant’s cause of action in respect of
legal costs. A body
corporate may not claim legal costs from a member
unless the costs were lawfully incurred and properly authorised in
terms of the
PMRs. The fact that a resolution was passed after
summons was issued does not retrospectively validate the claim.
[15]
In my view, this constitutes a
bona
fide
defence which ought to be
ventilated at trial. The respondent is entitled to challenge the
validity of the interest charges
and the inclusion of legal fees, and
to require the applicant to produce the necessary resolutions and
comply with the taxation
requirements of section 25 (4) of the PMR.
Conclusion
[16]
The respondent has raised a
bona
fide
defence to the applicant’s
claim for interest and legal costs. The defences are grounded in the
express provisions of
the STSMA and its Prescribed Management Rules,
and they are not frivolous or vexatious.
[17]
Summary judgment is not designed to shut
out a defendant who has a genuine dispute of fact or law. The drastic
nature of the remedy
requires the court to exercise its discretion
cautiously. Where there is a reasonable possibility that an injustice
may be done
if summary judgment is granted, the court should refuse
it and allow the matter to proceed to trial. I am of the concerted
view
that these are matters that can only be properly determined
after evidence has been led at trial.
Order
[18]
In the premises, I make the following
order:
1.
The application for summary judgment is
dismissed.
2.
The respondent is granted leave to
defend the action.
3.
The costs of this application are
reserved for determination by the trial court.
P
J MOGOTSI
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances:
Counsel
for Applicant:
Advocate R Smith
robin@adv21.co.za
Attorney
for Applicant:
Heerschop Pienaar
Inc. Attorneys
jp@shplaw.co.za
Attorney
for Respondents: (Self-Represented)
cbtorrente@gmail.com
Date
heard: 16
February 2026
Date
of Judgment:
[1]
Act
8 of 2011.
[2]
Act
9 of 2011.
[3]
Bogatsu
and Another v 108 on 8th Street Homeowners Association
(unreported,
case no. 2020/34289, 16 March 2021).
[4]
Compeg
Services (Pty) Ltd v Sharon Park Lifestyle Estate (NPC)
(A2022-039678) [2023] ZAGPJHC 1198 (23 October 2023).
[5]
Standard
Bank of SA Ltd and Others v Thobejane and Others
[2021] ZACC 17.
[6]
The
Sectional
Titles
Schemes Management Act
8
of 2011.
[7]
Annexure
1
of
the
Sectional
Titles Schemes Management Act Regulations
.