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IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2024 -102803
S[...] Body Corporate v Machubeng
I n the matter between:
S[...] BODY CORPORATE Applicant
and
MAKWANA MARTHA MACHUBENG Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is reflected and is handed down
electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic
file of this matter on CaseL ines.
JUDGMENT
T. OS S IN AJ :
INTRODUCTION
[1] The applicant , S[...] Body Corporate, is a body corporate as contemplated in section 2 of
the Section Title Scheme Management Act (hereafter: the STSMA )1, and has been
established for Sectional Title Scheme S[...] (hereafter: S[...] ). I n these proceedings, the
applicant approaches the court through an administrator appointed in terms of section 16
of the STSMA.
[2] The respondent, Mankwana Martha Machubeng , is the registered owner of a sectional
title unit in S[...] , namely Unit 7[...] . By virtue of her ownership of Unit 7[...] , t he
1 Sectional Titles Schemes Management Act 8 of 2011
(1) REPORTABLE: YES / NO
(2) OF INTERES T TO OTHER J UDGES : YES/NO
(3) REVIS ED: YES/NO
26 February 2026 ………………………...
DATE SIGNATURE
Page 2 of 26
respondent is a member of the applicant. As such, the respondent is subject to and bound
by the applicant’ s conduct / management rules, and resolutions passed by the applicant’ s
members and trustees .
[3] I n these proceedings the applicant seeks an order for payment of arrear amounts owed to
it by the respondent, as well as orders authorising the applicant to terminate electricity
supply and limit water supply to Unit 7[...] .
[4] On 28 August 2024, the applicant ’s attorneys addressed a letter to the respondent
demanding settlement of arrears then totalling R66 213.97, failing which proceedings
would be instituted for recovery. The letter of demand , as well as the covering em ail
under which the letter was sent warned the respondent that if the arrears were not
settled, th e applicant would also request the court to authorise disconnection of the
electricity supply to her unit. The respondent then emailed the applicant’ s attorney s
asking them to let her know what she needed to pay before 7 September.
[5] On 29 August, the applicant’ s attorneys emailed the respondent advising that in order to
avoid legal action , she would be required to propose an acceptable repayment
arrangement in respect of the arrears, ensure that future monthly charges were timeously
paid, and sign an acknowledgment of debt. The respondent was advised that if a payment
proposal was not forthcoming, legal action would be instituted. There was no response
from the respondent.
[6] On 2 3 September, the application was served on the respondent at Unit 7[...] . The Deputy -
Sheriff’s return of service records service to “
Mrs. Bronkhorst, mother of the renting
occupier ” and notes that “ Respondent left given address. ”
[7] On 30 September, the applicant sent a further email to the respondent advising her of
increased arrears of R86 925.95. The balance of the email was on essentially the same
terms as the previous 29 August email , save that the applicant indicated it would accept
terms as the previous 29 August email , save that the applicant indicated it would accept
repayment of the arrears in monthly instalments over 6 month s. The respondent then
paid an amount of R4 000.00.
[8] On 1 November, the applicant’ s attorneys emailed the respondent acknowledging
payment of a further R10 000.00 and advising that current arrears was R80 564.22. The
Page 3 of 26
respondent was also informed that an application for the termination of electricity supply
was in the process of being prepared, 2 and that in order to prevent termination of
electricity supply, the full amount was required to be paid.
[9] The respondent immediately emailed the applicant’ s attorneys expressing surprise at the
demand for full payment against the threat of terminating electricity supply and pointing
out that the applicant had previously indicated that the respondent would be allowed six
months to pay off the arrears. The applicant’ s attorneys responded to the effect that the
respondent had not reverted to them on the proposed payment arrangement and that
accordingly legal action had not been suspended. The applicant’ s attorneys further
advised the respondent that legal action would only be suspended once the respondent
had signed an acknowledgment of debt.
[10] L ater that morning (1 November), the applicant’ s attorneys emailed an acknowledgment
of debt to the respondent for signature. Once again, the respondent was informed that
the legal action would only be suspended once the respondent had signed and sent the
acknowledgment of debt back to the applicant’ s attorneys. The respondent did not revert
to the applicant’ s attorneys.
[11] On 15 November 2024, the respondent’ s attorneys served a notice of intention to oppose.
I n her answering affidavit, the respondent explained the reason for the late filing of her
intention to oppose . Upon the respondents’ return from Angola on 15 November , she
was informed by her tenant at Unit 7[...] of the application having been served. She then
perused that application and noted that the applicant was s eeking termination of
electricity supply and limitation of water supply to Unit 7[...] .
[12] I n her answering affidavit, the respondent states her residence as somewhere other than
Unit 7[...] .
[13] When the matter was called for hearing before me, there was no appearance from the
[13] When the matter was called for hearing before me, there was no appearance from the
respondent. This did not surprise me since the respondent’ s legal representatives had
failed to file the required heads of argument. What did surprise me was that about 10
minutes into applicant’ s counsel address ing m e, s omeone wearing a robe entered the
well of the court and sat down near applicant’ s counsel. Glances were exchanged . I th e n
2 In fact, the application had already been served
Page 4 of 26
thought it wise to find out who this person was . I requested applicant’ s counsel to stay
his address whilst I made the inquiry. The person advised me his name (Mr. Kubayi) and
that he was in the employ of the respondent’ s attorneys . Mr. Kubayi informed me that the
respondent’ s attorney had passed away over the weekend , and that a postponement of
the application was being sought. I asked Mr. Kubayi whether he had rights of
appearance. He replied in the negative. I then requested Mr. Kubayi to please take hi s
seat . I directed applicant’ s counsel to continue his address to me. Mr. K ubayi remained in
attendance during the hearing.
THE CLAIM FOR ARREAR AMOUNTS
[14] The applicant alleges that for the period May 2023 to September 2024, the aggregate
arrears charged by the respondent to the applicant was R77 713.97. During that time the
respondent, however, made a payment of R11 500.00. The arrear amount thus owing as
of September 2024 was R66 213.97. This is the amount for which the applicant seeks
payment.
[15] The R77 713.97 comprised the follo wing components: levies, electricity, water, refuse
charges, parking, CSOS levies, remote control access card, sewerage, legal costs, interest
and municipal repayment contributions.
[16] The respondent denies liability for the legal costs, the interest and the municipal
repayment contributions. These items aggregate to R23 181.97 of the R77 713.97. The
respondent admits being liable for R43 032.00. (This arises from the deduction of the
R11 500.00 payment and the aggregated disputed charges of R23 181.97.)
[17] I address each disputed item below.
L egal costs
[18] The applicant submit s an entitlement to legal costs in the amount of R17 547.27.
[19] The basis for this entitlement is a resolution passed by the administrator on 28
September 2022 (hereafter: the administrator’ s resolution) . Th e administrator’ s resolution
provides inter alia as follows:
Page 5 of 26
5. Any and all costs incurred by the [applicant] in the collection of any arrear contribution or to
remedy a breach of any Conduct Rule, will be due and payable by the defaulting member, which
costs include attorney and own client legal fees (vide clause 20.3 of the conduct rules).
6. The [applicant] is authorised to levy the aforementioned costs on the defaulting owner’ s levy
statement as a contribution which is due and payable immediately.
[20] I n support of the quantified legal costs, the applicant’ s heads of argument refer red to and
rel ied on the judgment in SS Glen High (which I subsequently found reported). 3 Reliance
was also placed on Regulations 24(4) and 24(5) of the Regulations to the STSMA. 4
[21] Regulations 24(4) and 24(5) provide as follows:
(4) A member is liable f or and must pay to the body corporate all reasonable legal costs and
disbursements, as taxed or agreed by the member, incurred by the body corporate in the
collection of arrear contributions or any other arrear amounts due and owing by such member
to the body corporate, or in enforcing compliance with these rules, the conduct rules or the Act.
(5) The body corporate must not debit a member's account with any amount that is not a
contribution or a charge levied in terms of the Act or these rules without the member's consent
or the authority of a judgment or order by a judge, adjudicator or arbitrator.
[22] In SS Glen High, the basis for the legal costs claim was th at body corporate’ s conduct rule
which read as follows:
I f the B ody Corporate or the Trustees instruct a firm of Attorneys in connection with or arising out of
any infringement by an occupant of any provision of these rules, such occupant shall be liable to
reimburse the Body Corporate on demand for all its legal costs incurred in respect thereof on an
Attorney Client basis.
[23] In holding that the body corporate was entitled to quantified legal costs, t he court in SS
Glen High (De Be er AJ ) stated as follow s:
[29] The Respondent upon becoming a member ‘ consented’ and/or ‘ agreed’ to reimburse the body
corporate on demand, f or all its ‘ legal costs incurred’ , thereby, in my view, also further satisfying
the requirements in subrules 25(4) and 25(5).
[30] Accordingly, the legal costs incurred in this matter need not be taxed to be included in the claim.
Subrules 25(4) and 25(5) are further satisfied in that the Respondent consented and or agreed
that such legal costs so incurred be reimbursed which constitutes a liquidated amount for the
purposes of summary judgment.
[24] Notwithstanding SS Glen High, I questioned applicant’ s counsel as to the competency of
a claim for quantified legal costs . Counsel then referred me to the judgment in Man nikin
(which I subsequently also found reported). 5 In Mannikin, Du Plessis J declined to follow
3 SS Glen High v Kruger NO 2024 JDR 4512 (GJ) at [27] to [32]
4 Sectional Titles Schemes Management Regulations, 2016 published under GN R1231 in GG 40335 of 7 October 2016
5 Mannikin Close Body Corporate v Mrabalala & Others [2025] J OL 69745 (GJ)
Page 6 of 26
the approach adopted in SS Glen High . (SS Glen High and Mannikin were decided in the
context of a summary judgment application.)
[25] In Mannikin, Du Plessis J framed the inquiry as one which required an analysis of the
meaning of R egulation 24(4), more particularly the words “ as taxed or agreed by the
member ”,6 particularly in the context of a trustee s’ resolution.
[26] In Mannikin, the trustees’ resolution provided as follows:
2.2. An owner who is handed over to a firm of attorneys for any reason whatsoever, including, but
not limited to debt collection, legal action and the sequestration of the owners, will be liable to
pay the costs of the attorneys' fees on a scale as between attorney and client, as charged by the
attorneys / as per the invoice received from the attorneys.
[27] Du Plessis J expressed discomfort with the approach adopted in SS Glen High :
[14] I do not agree with the reasoning in SS Glen High insofar as taxation is concerned. There are
good reasons to exercise caution before extending the drastic remedy of summary judgment
to untaxed legal costs, even if agreed to in a resolution. To allow untaxed fees risks saddling
sectional title owners with charges they had no opportunity to scrutinise, an argument that the
defendant made in this case. Furthermore, if untaxed fees are accepted as liquidated, then
trustees and attorneys may inflate accounts without any oversight opportunities. Taxation
serves as a check on such practices. Thus, my reason for departing from SS Glen High is that it
is fairer to require taxation, especially where costs are disputed. Summary judgment cannot
be granted for the legal costs where it is disputed.
[17] Even if the trustee resolution of 1 December 2021 is interpreted to authorise debiting
members' accounts with whatever amounts are reflected in an attorney's invoice, such an
arrangement has the potential to operate unfairly against sectional title owners. The owners
arrangement has the potential to operate unfairly against sectional title owners. The owners
have no direct knowledge of the work done and cannot reasonably be expected to assess the
proportionality of the charges with only a line entry on the statements they receive …
[28] It appears to me that Du Plessis J was also of the view that the trustees’ resolution was
eclipsed by the wording of R egulation 25(4):
[17] …Moreover, to treat an invoice as conclusive proof of indebtedness would deprive members
of the safeguard expressly built into rule 25(4), namely that the legal costs must be either
taxed or agreed upon. Taxation exists to ensure reasonableness and proportionality, and to
dispense with it would effectively allow trustees and the attorneys to set charges unilaterally.
For this reason, I am not persuaded that reliance on the resolution cures the Body Corporate's
difficulty in seeking to recover untaxed legal fees on summary judgment.
[29] I agree with the views expressed by Du Plessis J. Additionally , the legal costs appear as
mere line items on the statement of account , they are not supported by invoices from the
applicant’ s attorneys which presumably themselves would have broken down each cost
6 Mannikin (supra) at [10] to [12]
Page 7 of 26
item , and there is quite simply no explanation as to exactly what these legal costs
entailed . Moreover , some of the legal costs charged would in my view, and in any event,
have required further explanation. For example, there is an amount of R9 674. 37 charged
on 15 September 2023 , almost a full year prior to institution of the present application.
L astly, it is by no means certain that the costs order sought by the applicant in these
proceedings would not in some way be duplicated in the quantified legal costs claim.
[30] I n its heads of argument, the applicant allowed for the possibility that the court might not
be prepared to include the legal costs , as quantified by the applicant, in a money order ,
and that legal costs would have to be subjected to taxation.
[31] I n the present circumstances , I find that the applicant has not made out a case for
quantified legal costs . R17 547.27 is accordingly to be deducted from R77 713.97.
I nterest
[32] The applicant submits an entitlement to interest at prime plus 15% per annum,
compounded monthly in arrears. I n money terms, this translates, according to the
applicant, to quantified interest of R4 162.12 over the period.
[33] The basis for the interest component is also the administrator’ s resolution, m ore
particularly paragraph 7 thereof:
7. I nterest shall be charged at prime plus 15% per annum, compounded monthly in arrears on all
arrear contributions including levies, utility charges, administration costs and legal costs.
[34] According to the statement of account , the applicant commenced charging interest from
March 2024. I t appears that the monthly interest charge would have been calculated with
reference to each month’ s balance brought forward. The balance brought forward
necessarily includes the legal costs charged.
[35] Since I have concluded that the applicant is not entitled to quantified legal costs, it
[35] Since I have concluded that the applicant is not entitled to quantified legal costs, it
follows that the interest of R4 162.12 sought , as quantified by the applicant, cannot be
correct. The amount of R4 162.12 is therefore also to be deducted from R77 713.97.
Municipal repayment contribution s
Page 8 of 26
[36] The respondent contends that she is not liable to pay the municipal repayment
contribution. This has been quantified by the applicant as R1 472.58 over the period .
[37] The municipal repayment contributions arise from the applicant’ s indebtedness to the
relevant m unicipality. This indebtedness resulted in an agreement b etween the
municipality and the applicant in terms of which the applicant acknowledged owing
R489 810.83 to the municipality and enter ed into a repayment arrangement.
[38] The repayment arrangement necessarily meant that members of the applicant would be
called upon to pay the debt owed to the municipality. On 18 August 2023 the
administrator passed a resol ut ion which raised a special levy on all members (hereafter:
the special levy resolution). The special levy resolution provided for a monthly special
levy of R19 842.00 “
apportioned pro rata to the participation quotas of each section…and
continuing in perpetuity until the municipal arrangement is settled in full. ” The
apportionment for each section was set out in a schedule attached to and form ing part of
the special levy resolution. I n terms of that schedule the respondent ’ s monthly
contribution was to be levied at R77. 00.
[39] The special levy resolution recorded 1 September 2023 as the commencement date of the
special levy . The respondent’ s statement of account , however, reflects the applicant
including the special levy on the respondent’ s monthly account f or a period of time prior
to 1 September 2023. In my view, the charges prior to 1 September 2023 are unjustified.
[40] The respondent’ s total liability for this item is therefore R 1 001.00 and not R1 472.58 as
contended by the applicant. The difference of R 471.58 is therefore to be deducted from
the R77 713.97.
Appropriate relief
[41] I therefore find that the applicant has made out a case for payment of R44 034. 00.
[42] I arrive at this amount by deducting the following from R77 713.97: the respondent’s
[42] I arrive at this amount by deducting the following from R77 713.97: the respondent’s
payment of R11 500.00 (for which the applicant gives the respondent credit in any event),
quantified legal costs of R17 547.27, quantified interest of R4 161.12 and R471.58 in
respect of municipal repayment contributions.
Page 9 of 26
CLAIM FOR TERMINATION OF ELECTRICITY SUPPLY
[43] The applicant seeks an order authorising it to terminate electricity supply to Unit 7[...]
(hereafter: the electricity term ination order):
1.1 Authorising the Applicant to terminate the supply of electricity to the premises owned by the
Respondent, being at Unit 7[...] , S[...] Body Corporate, 2 […] P[…] S[…] Road, R [… ], Boksburg,
1459 ("the premises").
1.2 The Sheriff of the Honourable Court is authorised to grant an electrician, appointed by the
Applicant, access to the premises in order to disconnect the electricity supply to the premises .
1.3 The Respondent is prohibited from tampering with any installation or removal by the
electrician for any reason whatsoever, including, but not limited to, reconnecting the power
supply to the premises.
[44] According to the applicant, its entitlement to the electricity termination order arises from
a rule housed in Rule 20 of its Conduct Rules (hereafter: Rule 20). Reliance is also placed
on paragraphs 4 and 4.1 of the administrator’ s resolution.
[45] Conduct Rule 20 reads as follows:
I f accounts are not paid by the 25 th day of the month following the month of submission of the
accoun t, the electricity supply to the unit may be summarily and without warning suspended and will
only be re -installed upon payment of all arrear accounts plus such deposit as the Trustees may at
their discretion direct.
[46] Paragraph 4 and 4.1 of the administrator’ s resolution reads as follows:
4. Whereas it was agreed and resolved by the administrator that, should any member forming part
of the [applicant] accrue arrear levy contributions exce eding R20 000.00, the [applicant] will be
entitled, but not limited, to the following relief:
4.1 Applying to court to disconnect the electricity supply to such a member’ s property
[47] The respondent contends that Rule 20 is unlawful on the basis that it violates her access
to electricity which is provided for in the Electricity Regulation Act. 7 I n respect of the
administrator’ s resolution the respondent contends that it is unlawful and contrary to
Regulation 25(1) of the Prescribed Management Rules, and was never brought to her
attention prior to the present proceedings.
[48] The applicant’ s heads of argument refer to several recent judgments which h ave
addressed the competency of electricity termination orders. These are
L ion Ridge (per
7 Electricity Regulation Act 4 of 2006
Page 10 of 26
Wilson AJ as he then was), 8 Balb oa Park (per Dippenaar J) 9 and The Straight (per Windell
J ).10 To these may be added the brief judgment in Ashwood Manor (an unopposed
application which served before Manoim J) ,11 as well its leave to appeal reasons. 12 Of
these, The Straight is, presently , as far as I am aware, the only judgment which
authorised the electricity to be terminated (albeit subject to conditions).
[49] From the aforesaid judgments, it appears to me that the assessment as to whether , in a
given situation, an electricity termination order is competent , is carried out with reference
to two inquiries . The firs t inquiry considers the source of a body corporate’ s entitlement
to seek authority to terminate electricity supply. The second inquiry considers
constitutional im peratives , mostly in favour of the debtor , as against policy
considerations , mostly in favour of a body corporate and its members. On this approach,
the second inquiry comes into play only if a body corporate identif ies a valid basis and
source for its entitlement to seek authority to terminate electricity supply.
Source of the po wer
[50] I n its founding affidavit, the applicant explained the underlying rational and justification
for the electricity termination order: the respondent’ s failure to pay for electricity severely
prejudices the other owners and the applicant in that they are “ ultimately required to
subsidise the Respondent’ s consumption of electricity ”, and will face severe financial and
legal consequences should the electricity termination order not be granted.
[51] I am sympathetic to, and understand, the rational and justification provided by the
applicant as to why the court ought to come to its assistance. The question, however, is
whether the conduct rule and/or t he administrator’ s resolution establishes a sufficient
legal entitlement, in the present circumstances, to the electricity termination order.
legal entitlement, in the present circumstances, to the electricity termination order.
8 L ion Ridge Body Corporate v Alexander 2022 J DR 3057 (GJ )
9 Body Corporate of Balboa Park v Skeyi and Another 2024 JDR 1560 (GJ)
10 Body Corporate T he Straight v Katisi 2025 JDR 0126 (GJ)
11 Body Corporate Ashwood Manor v Macgregor 2023 JDR 3874 (GJ )
12 Body Corporate Ashwood Manor v Macgregor (leave to appeal) 2023 J DR 4578 (GJ )
Page 11 of 26
[52] In L ion Ridge, the body corporate h ad entered into an agreement with its members for
the provision of amenities and services to members ’ unit as contemplated by § 4( h) of the
STSMA . The body corporate argued that this agreement entitled it to seek an electricity
termination order by virtue of § 4( i) of the STSMA . § 4(i) empowers a body corporate “ to
do all things reasonably necessary for the enforcement of the rules and for the
management and administration of the common property ."
[53] Wilson AJ rejected the body corporate’ s reliance on § 4(i) of the STSMA because the
body corporate had not identified a particular rule empowering it , in the first place, to
seek an electricity termination order :
7. Neither the Sectional Titles Act nor the standard Management and C onduct R ules promulgated
under it empower a body corporate to interfere with a member's utility supply, and L ion R idge
does not allege any other common law or statutory power to do so. I t follows that L ion Ridge
has not identified the source of its alleged right to disconnect or limit the respondents' utilities.
Critically, L ion Ridge does not allege that it has adopted a specific rule, in terms of section 10 of
the Act or section 6 of the Regulations, that empowers it to disconnect its members' utilities to
recover outstanding levies. Nor does it set out the terms of the agreement it says it entered into
with the respondents which empower it, on breach, to seek the relief for which it now asks. 13
[54] Because neither the STSMA nor its Regulations address the circumstances under which a
body corporate might be entitled to terminate electricity supply, a body corporate seeking
authority to terminate electricity supply must be able to point to a particular rule or
resolution giving it such authority. This was expressed in L ion Ridge as follows: 14
9. …I t is tempting to consider it as little more than common sense that a body corporate can
9. …I t is tempting to consider it as little more than common sense that a body corporate can
collect debt f rom its members, and seek to withdraw services provided through the body
corporate until that debt is paid.
10. The reality is more complex. I n the first place, sectional title schemes exist to allow their
members to negotiate and manage the terms on which they will live together, share the burdens
of property ownership, regulate access to common property, and achieve a range of other ends
associated with the administration of a particular scheme.
11. A body corporate is not an ordinary commercial entity. I t derives its existence and its authority
from the Sectional Titles Act, and from the rules its members make for it. The terms on which a
body corporate's members' rights to receive water and electricity may be limited are a classic
example the sort of thing that should be deliberated upon and agreed between them. That is
precisely what is envisaged under the Act. The Act provides for a body corporate to enter into
agreements governing the supply of utilities to particular section owners or occupiers (section 4
(h) of the Act), and sets up a comprehensive procedure for the making and implementation of
body corporate rules. These rules " must be considered to be and interpreted as laws made by
and for the body corporate" (section 6 of the Regulations).
12. Neither the Act nor the Regulations themselves set out whether and under what circumstances a
body corporate may limit or discontinue the utilities supplied to one of its members. I t follows
either that the " laws" the body corporate makes " by and for" itself must grant such a power
13 L ion Ridge (supra)
14 L ion Ridge (supra)
Page 12 of 26
before the body corporate exercises it, or that a disconnection must be authorised in terms of an
agreement reached between the body corporate and a particular section owner or occupier. I do
not k now whether L ion Ridge has made such a " law" , or entered into an agreement with the
respondents, that envisages the disconnection of water and electricity for non-payment, because
L ion Ridge's founding papers do not address its powers to limit or disconnect the respondents'
utilities. There is accordingly no pleaded basis on which I can order the disconnection or
limitation of the respondents' utilities.
[55] In Balboa Park, the body corporate initially appears to have relied on a trustees’
resolution which appoint ing the body corporate ’s attorney to “apply via the courts to
obtain a (sic) court order to disconnect all owners in Balboa who are in arrears with their
levy accounts with outstanding amounts of R40 000 or more .” I t appears to have been
accepted that this resolution did not , in and of itself, give rise to the type of express
agreement between the body corporate and its members which would empower and
entitle the body corporate to seek an electricity termination order, as alluded to in Lio n
Ridge .15
[56] In Balboa Park, the body corporate then sought to house its entitlement to an electricity
termination order in “ an implied, inferred or ancillary power to disconnect electricity and
lim it water consum ption ” deriving from its express power to collect levies and act in the
common interests of its members. The body corporate argued that under such
circumstances, “
communal interests must override the interests of the respondents. ”
Dippenaar J formulated her understanding of the body corporate’ s case as follows:
[28] Ultimately, the nub of the applicants’ case amounted to whether there was any merit in their
contention that the power to terminate electricity and water supply was an implied, inferred or
ancillary power afforded to a body corporate and whether the resolutions adopted by the
trustees of the respective body corporates were competent.
[57] Dippenaar J agreed with Wilson AJ’ s approach (as recorded in paragraph [54] above),
that such a power could not be implied from the express debt collection powers given to
body corporates under the applicable statutory and regulatory framework . Dippenaar J
also pointed out that the body corporate’ s conduct / management rules , not only did not
expressly authorise the body corporate to seek an electricity termination order, they also
did not expressly give such authority to the trustees.
[58] Dippenaar J’ s reasoning as to why a power to seek an electricity termination order could
not be implied from regular express debt collection powers is as follows:
15 Balboa Park (supra) at [13]
Page 13 of 26
[37] The test f or considering whether the powers contended for can be implied, are set out thus in
L ekhari.16
I t should be emphasised, I think, that in order that such a power may be implied, it is not sufficient that
its existence would be reasonably ancillary or incidental to the exercise of any express power, in the
sense that it would be useful in giving effect to that power. I t must be reasonably necessary for that
purpose. The test is not mere usefulness or convenience, but necessity. There must be a need of
sufficient cogency to rebut the presumption that the L egislature, in conferring the power relied upon,
intended to authorise legislation affecting the subjects of the State and not the State itself in its judicial
organs. Nor must the implied power be extended beyond the requirement of the occasion. What can
be dispensed with without defeating the object of the express power or preventing its exercise in a
reasonably effective way, is not to be implied.
[38] I n applying this test, it cannot in my view be concluded that the applicants have illustrated any
basis to infer that such implied power is reasonably necessary. The high water mark of their
case is that legal proceedings cause substantial delays before the proceeds of any claim against
a recalcitrant member can be recovered. Moreover, the risks referred to in the applicants’
founding papers and in argument are based on speculation and supposition, rather than primary
facts.
[39] A coercive action such as the withholding of certain vital municipal services such as electricity
and water to effectively force payment of levies or other arrear amounts, may be convenient to a
body corporate but cannot be interpreted to be reasonably necessary.
[40] Similarly, such a power cannot be construed as ancillary to the express powers to collect levies
and contributions, nor can it be concluded that such power exists as a reasonable consequence
of exercise of the express powers afforded to the trustees.
of exercise of the express powers afforded to the trustees.
[41] Any interpretation which allows f or an alteration of the statutory powers rather than an
interpretation thereof cannot be supported. I n interpreting the provisions, the meaning must be
ascertained in the context of the STSMA as a whole.
[42] The interpretation contended for by the applicants in my view amounts to an alteration of the
statutory powers and cannot be supported. The termination of municipal services as a coercive
sanction f or non-payment is not a necessary corollary to an obligation on the part of members
to pay, and body corporate to collect levies and other charges due, nor can it reasonably be
inferred to be a reasonable consequence of the exercise of the express powers or the debt
collection remedy envisaged in the relevant governing instruments.
[43] …
[44] The very fact that legal proceedings may be instituted by a body corporate against a recalcitrant
member, in which both interest and costs can be recovered, and debt collection is available as a
remedy to a body corporate, militates against the notion that the power to seek termination of
municipal services is an ancillary or incidental power to those afforded body corporates under
the STSMA and the management and conduct rules of the respective body corporates. The fact
that the legal process may take time to be completed is an inevitable commercial reality all
creditors face in seeking to enforce payment from their debtors.
[45] The ultimate sanction that a body corporate can resort to in the collection of a debt is to obtain
judgment and pursue the attachment and sale in execution of the unit. A precondition for any
sale in execution would be a settlement of the outstanding levies owing to the body corporate
from the proceeds of the sale. Failing that, transfer of the property would not take place without
a levy clearance certificate being issued. The fact that that would take time to achieve, is not a
sound basis to effectively read in, as the applicants seek to do, powers which the L egislature
elected not to afford a body corporate.
[46] The entire structure, context and ambit of the STSMA, the STA, the management rules and the
conduct rules are aimed at arming body corporates and their trustees with the well -established
procedure of debt collection by utilising due legal process. The L egislature saw fit not to afford
16 L ekhari v Johannesburg City Council 1956 (1) SA 552 (A) at 567A -C
Page 14 of 26
powers such as those currently sought to body corporates, whilst diff erent statutory powers are
afforded by statute to entities such as Municipalities in relation to debt collection.
[47] Moreover, the power afforded to trustees to act on resolutions passed at a general meeting is
also not unfettered. As held by Malan J in Fish Eagle [27] , in law, a body corporate has no
power to pass a resolution to the effect that it will not carry out one or more of the duties
imposed upon it by s 37 read with s 39 of the STA.
[48] The same principles apply by analogy to the passing of a resolution purporting to authorise the
exercise of powers which a body corporate does not have. I n both instances the passing of such
resolution would be
ultra vires.
[49] What exacerbates matters in the present instance is that the resolutions in question were not
even taken at a general meeting of members of the respective body corporates, but by the
trustees thereof in trustees’ meetings. That of itself casts doubt upon the validity of the
resolutions.
[59] The above long extract from Dippenaar J’ s judgment also identifies a further concern of
the learned Judge: reliance on a trustees’ resolution as opposed to a rule passed by the
members themselves. I t appears that Dippenaar J had added difficulties w ith accepting
that a trustees’ resolution , as opposed to a members’ resolution, could be regarded as
sufficient authority to seek an electricity termination order. This does not mean to suggest
that , on my reading of the judgment, Dippenaar J would be prepared to uphold such a
power even if passed in general meeting (i.e., by the members).
[60] In Ashwood Manor¸ Manoim J in his short reasons for judgment on that unopposed
application, explained that the reason why he did not grant the body corporate an
electricity termination order was because “ no legal power was advanced by the [body
corporate] to grant such a form of relief to a private body. ”17 Manoim J adopted the
corporate] to grant such a form of relief to a private body. ”17 Manoim J adopted the
reasoning in Lion Ridge. 18 Having so held, Manoim J acknowledged understandable
frustration on the part of the body corporate and its members. Manoim J suggested that
the body corporate’ s remedy was, therefore, to adopt a rule giving it such power. 19
[61] In his leave to appeal reasons in Ashwood Manor (leave to appeal) , Manoim J noted a
belated argument that the source of the body corporate’ s power was to be found in
section 4(i) of the STSMA but expressed no view as to whether this argument had been
sufficiently (in this case, im plicitly) raised in the application papers. That being said, the
basis upon which Manoim J granted leave to appeal was as follows:
[9] What I am persuaded by is an argument that courts in this division have sometimes granted
such relief i.e. the disconnection relief, whilst others have not. Nor is it clear to me that the
17 Ashwood Manor (supra ) at [8]
18 L ion Ridge (supra) at 7
19 Ashwood Manor (supra ) at [10]
Page 15 of 26
argument relying on section 4(i) of the Act has been made sufficiently clearly before, as it has
now on appeal. This is probably because most of these cases came on the unopposed motion
roll as did this one. Many body corporates are like the applicant, faced with a similar problem in
subsidising the electrical debts of a defaulting owner on an ongoing basis. Whether this
argument prevails or not, legal clarity on this point is in the best interests of both body
corporates and owners. I f the applicant does not succeed, then it, and others similarly situated,
must know that they must consider alternatives including those suggested by Wilson J. This
need for clarity and the prevalence of these cases in the courts, is a sufficiently compelling
reason for leave to be granted in terms of section 17(1)(a)(ii) of the Superior Courts Act.
20
[62] Before turning to a discussion on The Straight, I am now at a point in my analysis where,
arising from L ion Ridge, Balboa Park, and Ashwood Manor , I venture to suggest that the
following might fairly be gleaned:
(i) The statutory and regulatory regime applicable to body corporates (for example,
section 4(i) of the STSMA) does not expressly give body corporates the authority to
terminate electricity supply (through a court order, obviously) .
(ii) The applicable statutory and regulatory regime does not confer such a power
im plicit ly.
(iii) A body corporate seeking to terminate electricity supply must , at the very least , be
able to point to an express conduct or management rule or resolution passed by the
general membership rule , which in clear terms, gives it such power . A trustees’
resolution may not be sufficient for this purpose. On the other hand, it may be that
even a rule or resolution passed by members expressly giving a body corporate such
power would be ultra vires.
(iv) Assuming that an expressly and clearly worded rule or resolution is not ultra vires, it
must still pass constitutional scrutiny.
must still pass constitutional scrutiny.
[63] In The Straight , the body corporate , in its founding affidavit, justified its entitlem ent to
seek an electricity termination order on the basis of a trustees’ resolution authorising the
body corporate to appoint agents or attorneys to recover arrears from recalcitrant
owners . No reliance was placed on a conduct / management rule. The respondent
opposed the relief on the basis that there was no agreement between him and the body
corporate authorising disconnection of the electricity supply.
[64] Faced with this denial, the body corporate, in its replying affidavit , asserted that a tacit
agreement existed between it and the owner. This tacit agreement, according to the body
20 Ashwood Manor (leave to appeal) (supra) at [9]
Page 16 of 26
corporate, was established when the owner purchased a unit in the scheme. The
consequence of this was that the owner was “ bound by the Rules and Regulations passed
by the trustees of the Body Corporate .” and that “ General and special resolutions passed
by the trustees were thus enforceable against the respondent. ”21 The tacit agreement
asserted by the body corporate was understood by Windell J as follows:
[32] The tacit agreement entails that when the Body Corporate pays the electricity charges on
behalf of the owners, they in turn have an obligation to reimburse the Body Corporate for such
payment ….
[33] …
[34] Thus, in terms of the tacit agreement, if an owner fails to reimburse the Body Corporate, it is
entitled to take the necessary steps to mitigate its losses and prevent further usage until the
electricity charges had been paid. I n effect, what the Body Corporate is seeking, is a
termination of the agreement between it and its owner.
[65] In Lion Ridge, the body corporate - in argument - also relied on a tacit agreement to
justify the electricity termination order. Wilson AJ noted that the tacit agreement had not
been made out in the founding papers (it was not made out in the replying affidavit
either) and , quite rightly in m y view, refused to entertain its existence. On the other hand,
in The Straight, Windell J was prepared to accept the existence of the asserted tacit
agreement even though it had only been raised by the body corporate in its replying
affidavit . I n this regard Windell J stated as follows:
[31] In L ion R idge the basis f or the authorisation relief was not properly pleaded. I n this application,
the Body Corporate had made out a case for the authorisation relief based on a tacit agreement
between the Body Corporate who is represented by the trustees on the one side and the owners
of the units on the other side. The Respondent did not attend the hearing, did not file heads of
argument and did not seek leave to file a supplementary affidavit. The allegations made by the
Body Corporate in relation to the tacit agreement are thus undisputed.
[66] I n so far as the source of a body corporate’ s power to seek an electricity termination order
is concerned, I also do not agree with the view expressed in The Straight that a body
corporate would be entitled to rely on a tacit agreement as affording it such power ,
whether such tacit agreement was raised in the founding affidavit or not.
[67] I am of the view that a body corporate must , at the very least , be able to identify to the
court, in its founding papers, an express and clearly worded rule or resolution adopted or
passed by the general membership to this effect .22 Since the applicable statutory and
regulatory regime does not give body corporates such express power, the source for this
21 The Straight (s upra) at [27]
22 My reasons for not accepting that a trustees’ resolution will suffice is set out in paragraph [70] below.
Page 17 of 26
power would have to come from internal governing instruments which are regarded as
contracts and agreements between the body corporate and its members. I, therefore, on
this issue, align myself with the views set out in Lion Ridge and , seem ingly , in Ashwood
Manor .
[68] I do, however , agree with Dippenaar J ’s vie w that such a rule or resolution would have to
pass constitutional muster .23 This was also expressed by Wilson AJ in L ion Ridge in the
following term s:
15. Thirdly, and probably m ost im portantly, the relief that Lion Ridge claim s im plicates a delicate
web of constitutional rights. These are the right against arbitrary deprivation of property (section
25 (1) of the Constitution, 1996), the right to sufficient water (section 27 (1) (b) of the
Constitution, 1996), the public law right to receive electricity from a municipality, even where the
electricity is transmitted through an intermediary such as a landlord or a body corporate (see
Joseph v City of Johannesburg 2010 (4) SA 55 (CC), para 47), and the right of access to adequate
housing (section 26 of the C onstitution, 1996).
16. Relief lim iting these constitutional rights is plainly incom petent if it is not authorised by law. The
form that law might take depends on the facts of a particular case. I n this matter, the very least
that would have to be established is a provision of the Sectional Titles Act, a rule of the body
corporate, or a term in an agreement that authorises the relief L ion Ridge now claims. L ion
Ridge does not allege any of this. The instrument authorising the relief, where it exists, may
itself have to conform to constitutional requirements designed to protect the rights implicated.
However, since no authorising instrument is alleged in L ion Ridge's f ounding papers, I need not
address that issue.
[69] In my view a rule or members’ resolution, which expressly grants a body corporate the
[69] In my view a rule or members’ resolution, which expressly grants a body corporate the
right to seek termination of electricity supply , ought to provide for and set out sufficient
guardrails which have the effect of giving concrete expression to the constitutional rights
afforded to individual members. The enforcement of that rule by a court ought to, in any
event , consider constitutional im peratives , by limiting such enforcement in such a way
that balances the owner’ s constitutional rights as against policy considerations in favour
of the body corporate and its general membership.
[70] L astly, I turn to the question as to whether an expressly worded trustees’ resolution
would suffice. Dippenaar J appears to be of the view that it would not. I agree with this. A
body corporate and its members are contractually bound to each other. I n the present
matter, the agreement between the applicant and its members (including the respondent)
is that the applicant pays for all electricity supplied, with members then reimbursing the
applicant for their share. The agreement ( which is located in Rule 20) entitles the
applicant to seek termination of electricity supply to recalcitrant member’ s units. Thus ,
23 Balboa Park (supra) at [52]
Page 18 of 26
the applicant’ s right to obtain authorisation from a court to terminate electricity supply is
housed in an agreement between the applicant and its members. A trustees’ resolution to
this effect would therefore not suffice , and as previously held such a power does not arise
im plicitly from a body corporate ’s general debt collection powers. The same applies to
the administrator’ s resolution since the administrator steps into the shoes of the trustees
but not the members. 24
[71] Whilst , from a statutory and regulatory point of view, a body corporate may only seek to
terminate electricity supply if there is an express agreement to this effect, constitutional
imperatives ought, in my view , also inform the authorisation of such an order by the
court , and , if appropriate, proscribe its lim its.
[72] And with that I now turn to discuss the second inquiry : the constitutional rights of the
recalcitrant owner as against policy considerations in favour of the body corporate and its
general membership.
Constitutional imperatives and policy considerations
[73] In Lion Ridge, Wilson AJ had this to say on constitutional imperatives:
15. Thirdly, and probably m ost im portantly, the relief that Lion Ridge claim s im plicates a delicate
web of constitutional rights. These are the right against arbitrary deprivation of property (section
25 (1) of the Constitution, 1996), the right to sufficient water (section 27 (1) (b) of the
Constitution, 1996), the public law right to receive electricity from a municipality, even where the
electricity is transmi tted through an intermediary such as a landlord or a body corporate (see
Joseph v City of Johannesburg 2010 (4) SA 55 (CC), para 47), and the right of access to adequate
housing (se ction 26 of the C onstitution, 1996). 25
16. Relief lim iting these constitutional rights is plainly incompetent if it is not authorised by law. The
form that law might take depends on the facts of a particular case. I n this matter, the very least
that would have to be established is a provision of the Sectional Titles Act, a rule of the body
corporate, or a term in an agreement that authorises the relief L ion Ridge now claims. L ion
Ridge does not allege any of this. The instrument authorising the relief, where it exists, may
itself have to conform to constitutional requirements designed to protect the rights implicated…
24 See section 16 of the STSMA
25 L ion Ridge (supra) at [15]; also see The Straight (supra ) at [21] to [23] a nd [35]; Balb oa Park (supra) at [50] to [54]
Page 19 of 26
[74] In Balboa Park, Dippenaar J , approv ing of the aforesaid dictum from L ion Ridge ,26 stat ed
as follows with reference to constitutional imperatives:
[43] Whilst ancillary and incidental powers may be inferred from express powers and powers may be
conferred by implication, as argued by the applicants, and whilst common interests of owners
may in certain instances override the interests of individual owners, community ownership does
not in all instances enjoy paramountcy. More so, where it would inf ringe on individual owners’
constitutional rights, as it would in the present circumstances. The applicants’ reliance on Fish
Eagle thus does not avail them.
[50] The significant impact on the constitutional rights of a recalcitrant member by the exercise of a
termination power, further militates against the construction of such power as being necessary.
It is self -evident that no management rules or conduct rules may conflict with the Bill of R ights
and the Constitution . I t f ollows that the powers which a body corporate may exercise, must also
pass Constitutional muster .
[52] Thus, even if members in a general meeting were to seek the adoption of management rules or
conduct rules which agree to the termination of municipal servic es such as electricity or water
supply in the event of non- payment, any such instrument would have to conform to
constitutional requirements to protect the implicated rights referred to. Absent adequate
protection, any such management or conduct rules may well not bear constitutional scrutiny
and be
ultra vires .
[53] Whilst recognising that the proposed relief would impact on the constitutional rights of the
respondents, the applicants relied on the limitation clause in s 36 of the Constitution in arguing
that any infringement of the respondents’ constitutional rights would be justified in exercising
the balancing act which must be performed where fundamental rights compete.
the balancing act which must be performed where fundamental rights compete.
[54] No such case had however been made out in the applicants’ f ounding papers for any such
lim itation. What is clear from the founding papers, is that the respondents’ constitutional rights
and the impact of the termination relief sought on those rights, were simply ignored and have
not been addressed, despite the cautions expressed in L ion Ridge. The bald argument that the
communal interests of the members must override the interests of recalcitrant members is an
over simplif ication and does address the true issue at play.
[75] I ssues arising from the constitution, were addressed by Windell J in The Straight as
follows:
[23] The Constitutional C ourt in Joseph examined the relationship between the municipality, a
service provider, and the ultimate user of the service (tenants), where the service is provided
through a third party, such as a landlord. The municipality disconnected the electricity after
giving only notice to the landlord and not to the tenants. The tenants, inter alia, claimed that the
disconnection without notice to them violated their constitutional right to access to adequate
housing ( implying a right to electricity) and human dignity (under sections 26 and 10 of the
Constitution, respectively), and their contractual rights against the owner of the property. The
Court held that the right to electricity was a public law right and that the tenants were entitled to
procedural fairness in that they had to receive adequate notice at last 14 days before
disconnection.
[38] L astly, the respondent’ s reliance on Joseph is misplaced, as the facts of that matter are wholly
distinguishable from the present matter. The Constitutional Court in Joseph appreciated the
importance of debt collection by local government in the event of non- payment of electrical
charges but held that bef ore the municipality can disconnect the electricity there must be
26 Balbo a Park (supra) at [51]
Page 20 of 26
procedural fairness in that proper notice must be given to the end-users. I n the present matter,
the Body Corporate followed due process by sending a letter dated 21 February 2022 to the
respondent informing him of the consequences of non-payment of his levies (which included
seeking an court order that will made provision for the disconnection of the electricity supply to
the respondent’ s unit until the arears had been settled) and approaching the court to gain the
necessary authority to disconnect the electricity supply to the respondent’ s unit.
[76] There was no need for Manoim J in Ashwood Manor to grapple with consti tutional
im perative s, because the body corporate had not identified the legal power which entitled
it to seek an electricity termination order.
[77] As appears from the above, Lion Ridge, Balb oa Park and The Straight all referred to the
judgment of the Constitutional Court in Joseph. 27
[78] In Joseph, tenants in a building had been paying for electricity charged to them by the
landlord, but the landlord had failed to pay over these funds to the municipality. The
municipality then disconnected electricity supply to the entire building. The issue in
Joseph was whether tenants, who had no contractual relationship with the municipality,
were nevertheless “ entitled to procedural fairness in the form of notice and an
oppor tunity to make r epresentations t o [the municipality ] before electricity supply was
terminated .”28
[79] The Constitutional Court held that the tenants were entitled to procedural fairness,
declared the disconnection unlawful, and ordered the municipality to reconnect the
electricity supply.
[80] The facts of the present matter are obviously distinguishable from the facts in Joseph (as
also noted by Windell J in The Straight ). It was not substantive law principles which led
the Constitutional Court to ordering the electricity supply to be reconnected, but rather
the Constitutional Court to ordering the electricity supply to be reconnected, but rather
adm inistrative justice principles . Adm inistrative justice principles find no application in
the present matter. Y et, even in Joseph, and as pointed out by Windell J, the
Constitutional Court “appreciated the importance of debt -collection by local
government ”:29
[51] Nothing in this judgment should be taken to suggest a failure to appreciate the importance of
debt collection by local government. The outstanding debts of City Power are staggering. The
27 Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55 (CC)
28 Joseph (supra ) at [1]
29 The Straight (s upra) at [38]
Page 21 of 26
importance of debt collection by municipalities was emphasised by this court in Mkontwana ,
where Y acoob J stated that it is 'important for unpaid municipal debt to be reduced by all
legitimate means'. 30 I n a separate concurring judgment, O'Regan J affirmed that '(t) here can be
no doubt that municipalities bear an important constitutional obligation and a statutory
responsibility to take appropriate steps to ensure the efficient recovery of debt'. 31
[52] I n addition, rights entail responsibilities. Citizens who can, must take responsibility f or paying for
services provided to them in fulf ilment of government's statutory and constitutional obligations.
Government is entitled to require this of citizens. Moreover, government regulation is implicit in
the notion of providing electricity.
[81] The aforesaid extract from Joseph looks very much like the ki nd of policy considerations
which the body corporates , in the judgments referenced above, identified in support of
electricity term ination orders. 32
[82] I n the present matter, this is addressed by the applicant as follows:
37. As deposed to herein above, the Respondent has continuously failed, neglected and/or refused
to pay for the consumption charges relating to the use of electricity on or in the property. The
Respondent is currently using services on a daily, weekly and monthly basis that the
Respondent is not making payment for and the Applicant, as well as all other paying owners in
the scheme, are severely prejudiced by the situation as they are ultimately required to subsidise
the Respondent's consumption of electricity.
38. Whilst a failure to pay every amount due to the Applicant is prejudicial to it, a failure to effect
payment of electricity consumption charges is most prejudicial. The reason for this is that the
Applicant is obligated , on a monthly basis, to effect payment of electricity consumption charges
in respect of every section within its scheme, to the local council. I f the Applicant does not
reco ver these payments, it will continue to advance monies to the council, on behalf or section
owners who do not pay for electricity consumption. This will deplete any savings which the
Applicant may have and will ultimately cause the Applicant to have a negative bank balance ,
risking a disconnection of the electricity supply, by the local municipality, to all of the sections
and the Applicant being placed under administration. This would severely prejudice all of the
members of the Applicant, who will be left without an electricity supply and will suffer a
signif icant decrease in their property values .
39. The Respondent, as an owner of the property in the Applicant, is liable to pay
f or the use of
consumed electricity on the premises. The Applicant faces severe financial and legal
consequences should the above Court not grant this claim .…
40. An Order for the disconnection of the supply of electricity to the property will put the Applicant
in the position where it will be able to cap its losses, in respect of arrear electricity consumption
charges pertaining to the property, whilst it attempts to recover the arrears. At the very least, the
Applicant and all of its members will mitigate further losses in this regard and will be able to
prevent the situation from becoming worse, by preventing f urther electricity supply to the
property in circumstances where the Respondent refuses to pay ad infinitum , and avoiding the
30 Footnote 42 in Joseph: “Mkontwana above n25 at para 52. ” Mkontwana is Mkontwana v Nelson Mandela Metropolitan
Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and
Others v MEC, L ocal Government and Housing, Gauteng, and Others (K waZulu- Natal L aw Society and Msunduzi Municipality
as Am ici Curiae) 2005 (1) SA 530 (CC) (2005 (2) BCLR 150; [2004] ZACC 9).
as Am ici Curiae) 2005 (1) SA 530 (CC) (2005 (2) BCLR 150; [2004] ZACC 9).
31 Footnote 43 in Joseph : “Id in para 124. ”
32 See for example: L ion Ridge (supra) at [18], Balboa Park (supra ) at [15]
Page 22 of 26
risk of the local council disconnecting the electricity supply to every section in the Applicant’ s
scheme.
41. Accordingly the Applicant has followed the appropriate legal process without taking the law into
its own hands, and has no other alternative but to approach the above Honourable Court for the
relief set out herein.
[83] The respondent accepts that she is liable for the use of electricity consumed in her unit,
and that she has not paid the applicant for such usage. The respondent denies, however,
that the applicant faces severe financial and legal consequences if a termination order is
not granted. According to the respondent this is because the applicant has not proposed
and exhausted alternative measures such as installing prepaid meters. I n the
respondent’ s view these would mitigate the applicant’ s future damages. For this reason,
the respondent seeks dismissal of the electricity termination order sought and asks the
court to direct the applicant to explore other available alternative measures.
[84] I n its heads of argument, the applicant provides for the possibility of the court ordering
the installation of a prepaid electricity meter as an alternative measure for mitigating
future harm and loss to the applicant. The applicant submits that the costs consequent on
such installation (should it be ordered) must be paid by the respondent.
[85] During the hearing I expressed concern with making such an order as I had no
information as to the applicant’ s electricity infrastructural set up, whether the
infrastructure could reasonably accommodate such an alternative measure, and if so at
what cost. I also expressed reservations about the respondent’ s ability to pay for the
installation.
[86] I nstallation of a prepaid electricity meter may, in certain circumstances, be preferrable to
disconnection of electricity supply. But if this is so, then, in my view, it would be for the
disconnection of electricity supply. But if this is so, then, in my view, it would be for the
recalcitrant owner to make out a proper case for this, not the body corporate. I n the
present case I am not prepared to make such an order.
[87] I n the present matter, the applicant relies on a conduct rule (an agreement between the
applicant and its members) which entitles the applicant to terminate electricity supply in
the event of non- payment of all arrear amounts, and for resumption of electricity supply
once all arrear amounts have been paid. I n my view this conduct rule provides sufficient
basis for the assertion by the applicant of a right to seek termination of electricity supply
Page 23 of 26
to Unit 7[...] . On the other hand, termination of electricity supply with reference to all
arrear amounts, not just arrear electricity charges ( The arrear electricity charges claimed
by the applicant, which is a component of the R77 713.91, is R11 954.61.), and resumption
of supply upon payment of all arrear amounts, again not just arrear electricity charges, is
in my view both constitutionally problematic and extends beyond the applicant’ s
immediate policy concern being its contractual obligation to pay the municipality for
electricity usage and obtain reimbursement for that amount from its members. This issue
was in fact noted by Manoim J in his leave to appeal reasons of
Ashwood Manor :
[10] What this case also raises, and was not argued in the leave to appeal, and I have only
considered belatedly, is that even if there is such a power to disconnect, does that power extend
to the recovery of all the arrear debts…or only the arrear electricity debt. 33
The appropriate relief
[88] Having regard to the facts in this case as well as constitutional imperatives, I am prepared
to authorise termination of electricity supply to Unit 7[...] , but subject to various
limitations and conditions . I n doing so I am also mindful of the fact that the applicant is
under administration, and that it is already heavily indebted to the municipality. The
respondent’ s conduct in not paying her share exacerbates the situation.
[89] Since I have declined to authorise the electricity termination order on the basis of the
administrator’ s resolution, the respondent’ s contention that the administrator’ s resolution
breaches Regulation 25(1) is moot. In any event, Regulation 25(1) is, in m y view,
irrelevant.
[90] I have considered the possibility that someone other than the respondent might presently
reside at Unit 7[...] . The order I propose to make cater s for this possibility through service
of said order as well as a notice, affording the respondent 14 calendar days to pay the
arrear electricity charges prior to termination taking place, at Unit 7[...] on the persons in
occupation thereof as well as at the respondent’ s stated residence.
CLAIM FOR LIMITATION OF WATER SUPPLY
[91] The applicant seeks an order authorising it to limit water supply to the respondent’ s unit
in the following terms (hereafter: the water limitation order):
33 Ashwood Manor (leave to appeal) (supra) at [10]
Page 24 of 26
2.1 Authorising the Applicant to limit the supply of water to the premises to the amount of 6000 L
(six thousand litres) per month and installing a prepaid water meter in the premises , unless
and/or until the Respondent makes payment of the full arrear amounts;
2.2 The Sheriff of the Honourable Court is authorised to grant a contractor a ppointed by the
Applicant, access to the premises in order to limit the water supply to the premises and install
the prepaid water meter.
2.3 The Respondent is prohibited from tampering with any installation or removal by the
contractor for any reason whatsoever, including, but not limited to, reconnecting an unlimited
water supply to the premises.
[92] According to the applicant, its entitlement to the water limitation order arises from
paragraph 4 and paragraph 4.2 of the administrator’ s resolution. There is no conduct rule
sim ilar to Rule 20 which a uthorises the applicant to limit water supply.
[93] Paragraph 4 and 4.2 of the administrator’ s resolution reads as follows:
4. Whereas it was agreed and resolved by the administrator that, should any member forming part
of the [applicant] accrue arrear levy contributions exceeding R20 000.00, the [applicant] will be
entitled, but not limited, to the following relief:
4.1 Applying to court to have such a member’ s water supply limited in accordance with the
relevant L aws / By L aws of South Africa ;
[94] The same general legal factors and facts applicable to the electricity termination order,
apply to an assessment of the applicant’ s right to seek an order lim iting water supply.
[95] I n the present instance there is in no members’ resolution or rule wh ich authorises the
applicant to limit water supply. I have already held in the context of the electricity
termination order, that such a resolution or rule is required. All that the applicant can
point to is the administrator’ s resolution.
point to is the administrator’ s resolution.
[96] It is also significant to me, that , in none of the letters of demand which the applicant sent
to the respondent , did the applicant record its intention to limit water supply to Unit 7[...] .
[97] I therefore hold that the applicant is not entitled to a water limitation order .
THE ORDER
[98] I n the circumstances, I make the following order:
1. The respondent is ordered to pay the applicant the amount of R 44 034.00;
Page 25 of 26
2. The respondent is ordered to pay interest on the amount of R44 034.00 at the rate of
15.5% per annum, compounded monthly, calculated from 1 September 2024 to date
of payment;
3. In respect of the electricity supply to Unit 7 […] , S[...] , 2 […] P[…] S[…] Road, R […] ,
Boksburg (hereafter: Unit 7[...] ):
3.1 The applicant is authorised to terminate electricity supply to Unit 7[...] only
once the following conditions have been met:
3.1.1 The applicant has given the respondent 1 4 calendar days written notice to
settle the outstanding electricity charge of R11 954.61 plus interest at
15.5% per annum, compounded monthly, from 1 September 2024 to date
of payment (hereafter: the written notice);
3.1.2 A copy of this order has been served by the Deputy -Sheriff a s follows:
3.1.2.1 Service at 3 […] K[…] Street, W […] P[…] , Extension 12, Boksburg;
and
3.1.2.2 Service at Unit 7[...] on the person(s) occupying Unit 7[...] ;
3.1.3 The written notice is served by the Deputy -Sheriff a s follows:
3.1.3.1 Service at 3 […] Unit 7[...] Street, W […] P[…] , Extension 12,
Boksburg; and
3.1.3.2 Service at Unit 7[...] on the person(s) occupying Unit 7[...] ;
3.1.4 A copy of this order as well as the written notice are emailed to :
3.1.4.1 The responde nt at m [… ] ; and
3.1.4.2 The respondent’ s attorneys at i […] ;
3.1.5 Fourteen calendar days have lapsed from the last service and em ailing of
this order and the written notice , and the respondent has not settled the
outstanding electricity charge and interest as set out in paragraph 3.1 .1
above;
3.2 Termination of electricity supply to Unit 7[...] may only be carried out by an
electrician registered with the Electrical Contractors Association of South Africa
Electricity , and who has been engaged by the applicant for this purpose.
3.3 The respondent and any other person in occupation of Unit 7[...] , is directed to
3.3 The respondent and any other person in occupation of Unit 7[...] , is directed to
afford the aforesaid electrician access to Unit 7[...] for any purpose which
relates to the termination of electricity supply to Unit 7[...] , failing which the
Sheriff of the Court is directed to afford the aforesaid electrician such access.
Page 26 of 26
3.4 Other than an electrician engaged by the applicant, all persons are prohibited
from tamper ing with the e lectricity supply to Unit 7[...] , which includes
reconnecting electricity supply to Unit 7[...] .
3.5 The applicant will be required to reconnect electricity supply to Unit 7[...] within
48 hours of the r espondent paying the applicant the outstanding electricity
charge and interest, as set out in paragraph 3.1 .1 above .
4. The respondent is ordered to pay the costs of this application, including the costs of
counsel on Scale A.
_________________________________
T. OS S IN
Acting Judge of the High Court of South Africa
Gauteng L ocal Division, Johannesburg
APPLICANT’S COUNSEL:
R. Smith
APPLICANT’S ATTORNEYS: Heerschop Pienaar
Attorneys
RESPONDENT’S COUNSEL: No appearance
RESPONDENT’S ATTORNEYS: Mathada and Associates Inc
DATE OF HEARING: 24 November 2025
DATE OF JUDGMENT: 26 February 2026