THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2025-171920
In the matter between:
WATERSTONE PARK
HOMEOWNERS ASSOCIATION
Applicant
and
EMMANUEL KANU Respondent
JUDGMENT
DU PLESSIS J
Introduction
[1] In this application, the Waterstone Park Homeowner Association (“the HOA”)
seeks summary judgment against the respondent, Mr Kanu, for payment of arrear
levies and related charges arising from his ownership of property within the HOA.
[2] The HOA states that, by owning property in the estate, Mr Kanu became a
member of the HOA and is therefore bound by the Memorandum of Incorporation
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 07 May 2026
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(“MOI”). The MOI (and subsequent resolutions taken) contains provisions relating to
levies, special levies, interest, and the recovery of legal and collection charges.
[3] Mr Kanu’s plea and opposing affidavit raise the following defences: 1) certain
payments were not properly credited; 2) the applicant has continued to increase the
respondent’s arrears by debiting the respondent with unauthorised amounts; 3) the
applicant has failed to issue a letter of demand; and 4) the applicant has failed to
pursue settlement.
[4] Mr Kanu’s legal representatives filed an affidavit resisting summary judgment
and heads of argument. However, the attorneys of record withdrew before the hearing.
Mr Kanu did not appear in court on the day. I informed the HOA’s counsel that the
matter would proceed on the basis that I would consider all the affidavits and the heads
of argument.
Background
[5] In Mount Edgecombe Country Club Estate Management Association II (RF)
NPC v Singh
1, it was stated that when respondents purchase property within the estate
and become members of the association, they agree to be bound by the rules. This
creates a contractual relationship between the parties. In this regard, the signed MOI
is instructive.
[6] In terms of the MOI, Mr Kanu is responsible for paying subscriptions,
contributions, and levies as decided by the directors from time to time. He is also
accountable for any special levies issued. These payments are due by the seventh
day of each month, and interest will accrue at the maximum rate allowed under the
National Credit Act. Additionally, Mr Kanu is also liable for any legal costs (on an
attorney-and-client basis), collection fees, expenses, and charges the HOA incurs in
recovering overdue levies or other amounts owed, along with applicable interest.
1 [2019] ZASCA 30; 2019 (4) SA 471 (SCA).
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[7] Mr Kanu does not dispute his liability to pay levies and other charges under the
MOI, nor does he dispute the enforceability of the MOI’s terms. He also does not
challenge his ownership or his HOA membership.
Evaluation of defences
Payments made
[8] Three payments were relied on. The HOA explains as follows: the payment on
1 April 2025 reflects the statement; the payment of 2 February 2023 was made to a
different account number; and the payment made in December 2025 falls outside the
pleaded claim period. This is supported by the papers (running statement). This
defence must therefore fail. This is all reflected in the running statement. This defence
is therefore not bona fide.
Unauthorised debits and inflation of arrears
[9] Mr Kanu’s defence is that the HOA has continuously increased the balance
owing to it by debiting his account for unauthorised amounts, including interest, a
handover letter, and debt collection fees.
[10] The HOA submits that the MOI shows that the HOA resolved to charge interest
at 2% per month (subject to the maximum interest rate chargeable on overdue
accounts under the NCA) and is therefore authorised. This is indeed so, which means
this is not a bona fide defence.
[11] The HOA likewise submits that an owner whose account has been handed over
for debt collection will be liable to pay the collection agent’s fees, as set out in the MOI,
which specifies the process and structure of those fees. This is indeed the case, which
means this is not a bona fide defence.
[12] As for the attorney’s fees, the agreement provides for attorney’s fees on a scale
agreed between the attorney and client as charged. By way of example, the statement
reflects entries for “JUKES LEGAL FEES”, “SHP LEGAL FEES”, monthly interest on
arrears, and monthly legal monitoring fees, while also carrying forward the running
balance as a composite amount.
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[13] In Mannikin Close Body Corporate v Mrabalala, 2 the Court cautioned against
granting summary judgment for bundled balances in which levies, interest, legal fees,
and monitoring charges are rolled together, and held that disputed legal fees and
monitoring fees may not be sufficiently liquid for summary judgment where their basis
and calculation are unclear. I maintain that, absent taxation or agreement, a member
may have no proper opportunity to scrutinise the work done by attorneys, or the
proportionality of the charges, or the basis upon which line-item legal and monitoring
fees have been entered on a statement. Attorney’s fees do not ordinarily constitute a
liquid debt until they have been ascertained and determined by taxation.
[14] During argument, counsel for the HOA was amenable to an approach in which
summary judgment is granted in respect of the other amounts, with an order that the
legal fees be taxed. I agree that this is a sensible approach. Since the Magistrates’
Court has concurrent jurisdiction, the appropriate approach is to tax the legal fees on
the Magistrates’ Court scale.
[15] A breakdown of the statement indicates the following amounts for the various
items:
Levies: R 93 385,18
Interest on arrears: R67 459,85
Legal fees: R42 154,13
Debt collectors fee: R4 266,85
Admin fees: R1 241,85
CSOS Levy: R1 263,85
Click on fee: R5130,59
Penalty fee: R19 100,09
Legal monitoring fees: R2 400,00
Payments: R70 604,40
2 [2025] ZAGPJHC 860.
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[16] The total is R177 480,69, minus R11 683,50, a previous claim, giving R165
797,19. From the reasoning above, the legal fees of R42 154,13 can only be claimed
once taxed on a Magistrates' Court scale. To the extent that "interest on arrears"
relates to legal fees debited, that portion of the interest stands over with the legal-fees
claim. It shall be recoverable to the extent allowed on taxation of the legal costs.
[17] A further difficulty is that the item “interest on arrears” (R67 459,85) was
calculated on a running account in which the untaxed legal fees were also debited
from time to time. To the extent that any portion of that interest is attributable to legal
fees debited to the Respondent’s account, that portion should not be executable under
a summary judgment order before the legal fees themselves have been taxed. The
recalculation of interest is a mechanical exercise and a matter of arithmetic, and thus
capable of speedy and prompt ascertainment.
[18] Therefore, although summary judgment is appropriate for the main claim, the
legal-fees component and any related interest should be deferred and included in the
legal-cost claim for later recovery after taxation. The amount is then R56 183,21, plus
the recalculated interest, excluding the untaxed legal fees. Any interest on the legal
fees can be dealt with at taxation.
Absence of a letter of demand
[19] The HAO states that it has transmitted the letter of demand to the specified
email address and that it has been forwarded to Mr Kanu. The letter is attached. This
is not a bona fide defence.
Absence of mediation
[20] Likewise, the complaint about the absence of mediation does not constitute a
defence to a claim for contractual levies. The Applicant’s heads correctly note that it
has no legal obligation to settle or mediate before enforcing arrears of levies.
Order
[21] The following order is made:
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1. Summary judgment is granted for payment of the sum of
R56,183.21 (fifty-six thousand one hundred and eighty-three rand
and twenty-one cents).
2. Summary judgment is granted for the interest as is recalculated
after excluding the legal-fees component from the account, and
only to the extent that such recalculated interest relates to non-
legal charges.
3. Interest shall run on the amounts in 1 and 2 above, at the rate of
2% (two per cent) per month, compounded monthly in arrears,
from 30 September 2025 to the date of payment.
4. To the extent that the interest on arrears includes interest
attributable to legal fees debited to the Respondent’s account,
that portion of the interest shall stand over with the legal-fees
claim and shall be recoverable only to the extent allowed on
taxation of the legal costs.
5. The Respondent shall pay the costs of the summary -judgment
application, such costs to be taxed on the Magistrates’ Court
scale.
_ ______________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
4 May 2026
Date of judgment:
7 May 2026
For the applicant:
Y van der Vyver instructed by Heerschop
Pienaar Attorneys
For the respondent:
No appearance.