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[2026] ZAGPPHC 632
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Kosmodal Ext 61 and 62 Homeowners Association NPC v Gabela and Others (2025-071425) [2026] ZAGPPHC 632 (28 May 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number:
2025-071425
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
SIGNATURE
DATE
28/05/2026
In
the matter of:
KOSMOSDAL
EXT 61 AND 62 HOMEOWNERS
APPLICANT
ASSOCIATION
NPC
And
TSHOLOFELO
LERATO GABELA
1
ST
RESPONDENT
MAITE
ROSINA MODIBA
2
ND
RESPONDENT
MOTJILE
RAYMOND RANKHUMSISE
3
RD
RESPONDENT
ISABEL
VICTORIA RANKHUMSISE
4
TH
RESPONDENT
MOEKETSI
ELIJAH MOOROSI
5
TH
RESPONDENT
LINDIWE
MABENA
6
TH
RESPONDENT
THAPELO
MOGATUSI
7
TH
RESPONDENT
PALESA
MOGATUSI
8
TH
RESPONDENT
SIMON
TUMELO MAPHANGA
9
TH
RESPONDENT
MASHILA
JEMINAH MATLALA
10
TH
RESPONDENT
BRENDALYN
JEANET JOHANNA MASHILOANE 11
TH
RESPONDENT
ELIOTH
AMOS MUZAMANE
12
TH
RESPONDENT
RHULANI
VANESSA MUZAMANE
13
TH
RESPONDENT
ANDILE
LAURETH MALETSATSI DUBE
14
TH
RESPONDENT
MPHASHA
NELSON KGARE
15
TH
RESPONDENT
DORCUS
PEBETSE MATSHEDISO KGARE
16
TH
RESPONDENT
LANGETELA
ALERT CHAUKE
17
TH
RESPONDENT
TLABO
AGOSE THOKOLO
18
TH
RESPONDENT
GRACE
SIBONGILE THOKOLO
19
TH
RESPONDENT
VINCENT
NHUBUNGA
20
TH
RESPONDENT
ANGELA
MMATLOU NHUBUNGA
21
TH
RESPONDENT
SIBUSISO
ALEXANDER MLOTSHWA
22
ND
RESPONDENT
HOPE
OLGA MLOTSHWA
23
RD
RESPONDENT
MICHAEL
THAANE MOLEKWA
24
TH
RESPONDENT
ESTHER
MOLEKWA
25
TH
RESPONDENT
LIMA
CYRIL BALOYI
26
TH
RESPONDENT
MICAL
SINDISA BALOYI
27
TH
RESPONDENT
NTEBALENG
DORIS
28
TH
RESPONDENT
MZIMHLE
DAVID MADUNA
29
TH
RESPONDENT
This Order is made
an order of Court by the Judge whose name is reflected herein, duly
stamped by the Registrar of the Court, and
is submitted
electronically to the Parties/their legal representatives by e-mail.
This Order is further uploaded to the electronic
file of this matter
on Case Lines by the Judge or his/her Secretary. The date of this
Order is deemed to be 28 May 2026.
JUDGMENT
LUKHAIMANE
AJ
Introduction
[1]
The
applicant applied for an order in the following terms
[1]
:
‘
3.1
Declaring that all the respondents are interdicted and restrained
from making any illegal connections,
alternatively to continue to
make illegal connections to their electricity supply, and from the
centralised electricity meter box
situated in the premises of
Brooklands 3 Lifestyle Estate, Gauteng, to their respective units or
dwellings.
3.2
An order compelling the respondents to terminate all illegal
connections to the electricity
supply, and from the centralised
electricity meter box situated in the premises of Brooklands 3
Lifestyle Estate, Gauteng and /
or restore the electricity
connections to their respective units or dwellings to that of the
lawful and duly appointed service
provider, known as Metershack (Pty)
Ltd, within thirty (30) days of this order.
3.3
That the respondents shall pay the costs of this application, jointly
and severally, on
the Scale as between Attorney-and-Client.
3.4
That the applicant shall be permitted to debit the taxed costs of
this application pro rata
on the respondent’s respective levy
accounts.
3.5
Further and / or alternative relief as the Court may deem appropriate
and fit.”
[2]
The application came before me on 24 April 2026. The
applicant
abandoned prayer 3.4 at the outset. The ninth respondent represented
himself and his submissions were no different from
the rest of the
respondents, therefore, the respondents’ submissions were dealt
with as one.
Background
facts
[3]
On or
around June 2016, the board of directors of the applicant (“the
board”), entered into a prepaid electricity vending
agreement
with British Xabhaya (Pty) Ltd (“British”), later
amended, via an addendum. The applicant contends that the
agreement
expired on 1 June 2018 and was never renewed. However, the facts,
also adduced by the applicant, indicate that British
provided this
service through to 2023 and beyond to the respondents. The applicant
further states that sometime in 2023, its board
adopted the following
two resolutions
[2]
:
“
4.
Motion
It is hereby proposed
that the resolution set out below be accepted and approved by the
majority of the board of Kosmosdal Ext 61
& 62 HOA NPC Board of:
1.
Resolution 1
Approval to
terminate the services of British-Xabanya (PTY) LTD as a prepaid
meter and vending supplier.
Resolved:
That
the services of British-Xabanya (PTY) LTD be terminated as a prepaid
meter and vending supplier for Kosmosdal Ext 61 &
62 HOA.
2.
Resolution 2
Approval to appoint
Meter Schack as the preferred prepaid meter and vending supplier
Resolved:
That Meter Schack be appointed as the preferred supplier of
prepaid meters and vending services to Kosmosdal Ext 61 & 62 HOA
NPC.
PAST AND ADOPTED
By a majority of the
Board of Directors of THOA on the…….by Round Robin vote
of the Board of Directors members.”
[4]
It is the applicant’s case that British continued
to sell
prepaid electricity to its homeowners beyond 2023 and failed to
properly disclose or remit these amounts to the applicant.
It is the
applicant that is responsible for remitting funds for the bulk
electricity supplied to its one centralised meter to the
City of
Tshwane. The indebtedness or otherwise of British to the applicant is
the subject of separate litigation.
[5]
The applicant submits that it appointed a new service
provider,
Metershack (Pty) Ltd (“Metershack”) with the aim of
migrating the estate to a more efficient system, at free
cost to the
homeowners.
[6]
According
to the applicant, the majority of the homeowners have migrated to
Metershack, except for the respondents, that the applicant
considers
as engaging in disruptive and unlawful conduct including illegal
electricity connections, spurious litigation and continued
engagement
with British; the applicant considers British to be operating
unlawfully, including after being interdicted on 22 October
2024
[3]
.
[7]
The applicant contends that this conduct is causing it
financial
prejudice as it remains liable for the bulk municipal electricity
bill.
[8]
The
applicant entered into a service level agreement (SLA) with
Metershack
[4]
, which agreement
is undated and not signed by or on behalf of Metershack and its
duration is not specified nor is a date of commencement
indicated. In
fact, except for the fact that someone purportedly signed on behalf
of the applicant, which signature was witnessed
by one other person,
the applicant is nowhere indicated as a party to the agreement.
[9]
Except to
state that the decision to appoint Metershack was validly taken,
ratified at an annual general meeting and confirmed through
judicial
pronouncements, the applicant does not engage any further with the
respondents’ contentions
[5]
.
[10]
The respondents on the other hand, take issue with the relief sought.
They contend that the applicant’s
memorandum of incorporation
(“MOI”) or its General Rules of Conduct (“Conduct
Rules”), do not prohibit
the homeowners (members of the
applicant) from purchasing electricity from a third party not
nominated or appointed by the applicant.
They further contend that
the appointment of Metershack was unlawful, not in accordance with
the applicant’s governance processes.
Therefore, they state
that the applicant has no cause of action to support a claim against
the respondents and the manner that
the relief sought is framed, is
fatally defective.
[11]
The applicant is a non-profit company and therefore acts in terms of
the
Companies Act 71 of 2008
. Clauses 13 and 20 of the applicant’s
MOI that prevailed at the time the SLA was entered into provides as
follows:
“
13.
MEMBERS’ MEETING AND ROUND ROBIN RESOLUTIONS CONTEMPLATED IN
CLAUSE 1.2.22
13.28
Every resolution of members is either an ordinary resolution or a
special resolution.
An ordinary
resolution, save to the extent expressly provided in respect of a
particular matter contemplated in this MOI, shall
require to be
adopted with the support of more than 50% of the voting rights
exercised on the resolution.
A special resolution,
save to the extent expressly provided in respect of a particular
matter contemplated in this MOI shall require
to be adopted with the
support of at least 75% of the voting rights exercised on the
resolution.
Every member present
in person or by proxy shall have the voting rights on behalf of
himself and on behalf of each person for whom
he acts as a proxy,
determined in accordance with the formula contained in clause 13.27.
20
PROCEEDINGS OF DIRECTORS
20.11
Resolutions adopted by the board –
20.11.1
must be dated and sequentially numbered;
20.11.2
are effective as at the date of the resolution,
unless the resolution
states otherwise;
20.11.3
subject to the provisions of his clause 20, a majority
of the votes
cast on a resolution proposed at any Board meeting or by Round Robin
– is sufficient to prove that resolution;
and
20.11.4
any decision of the Board to outsource the provisions (sic)
of
electricity or security services to the Company or any Dwelling shall
not be effective without the prior written approval of
the HOA by
special resolution, and the powers of the Board are hereby
accordingly restricted.”
[12]
The respondents argue that the Court should not exercise its
discretion by granting the applicant the declaratory
relief sought,
as it is not competent. They submit that it is not clear what the
applicant is referring to with “making illegal
connections”
and when pressed by the respondents during the hearing, Counsel for
the applicant could not clarify this.
The respondents suggest
that the matter was not ripe for determination, as something further
had to happen, meaning the proper
appointment of a service provider,
Metershack, before the applicants would be entitled to act. I believe
that these contentions
of the respondents are valid, both in fact and
in law. As demonstrated above, the applicant’s powers are
circumscribed by
the law and its founding governance documents i.e
MOI and Conduct Rules. It may not act outside of these powers,
otherwise its
actions would be null and void.
Analysis
[13]
This court must therefore determine whether the respondents are
engaged in unlawful activity by illegally
connecting their
respective units or dwellings to the centralised meter box. It is
correct that the remedies the applicant seeks
are competent and may
be granted by a court together where justified by the facts. This is
the declaratory order sought by the
applicant and whether the
applicant may lawfully demand that the respondents restore the
electricity connections to their dwellings
from the centralised meter
through Metershack.
[14]
To evaluate both the applicant’s and respondents’
assertions, it is important to consider the
resolutions that the
applicant relies on to deem the conduct of the respondents illegal /
unlawful and actionable.
[15]
The applicant has failed to adduce evidence of its compliance with
clauses 13.28 and 20.11.4. These are the
provisions of the MOI that
prevailed in 2023 when the decision to replace British with
Metershack was taken and the applicant did
not follow these
provisions. The applicant’s failure to follow its regulated
procedures when appointing Metershack, renders
the resolution of no
effect. It does not assist the applicant that most homeowners have
migrated to Metershack. The respondents
are within their rights to
refuse to abide by a decision of the applicant that was not taken in
line with its governing prescripts.
In addition, the applicant may
not seek the assistance of the courts to enforce such a decision /
resolution.
[16]
The requirements for declaratory relief are settled. Section 21(1)(c)
of the Superior Courts Act
[6]
reads: ‘
A
Division has jurisdiction over all persons residing or being in, and
in relation to all causes arising and all offences triable
within,
its area of jurisdiction and all other matters of which it may
according to law take cognisance, and has the power –
... in
its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent
right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination’.
In
Gensinger & Neave CC and Others v Minister of Mineral Resources
and Energy and Others
[7]
the
Court applied these provisions as follows:
‘
An
applicant seeking a declaratory order must satisfy the court that he
or she is a person interested in an existing, future or
contingent
right or obligation. …
once the applicant has satisfied the court that
it is interested in an existing, future or contingent right or
obligation, it does
not mean that the court is bound to grant a
declarator. The court must consider and decide whether it should
refuse or grant a
declarator, following an examination of all the
relevant factors. The court accordingly has a discretion. In the
exercise of that
discretion, the court considers whether an
applicant, in seeking such a declarator, has standing in terms of s
38 of the Constitution.
In line with the doctrine of ripeness,
the court may enquire as to whether alternative remedies have been
exhausted. In addition,
a court will not grant a declaratory order on
moot or academic issues, as this would conflict with the doctrine of
effectiveness
...’
[17]
Specifically in the context of declaratory relief, and where it
concerns the exercising of the Court’s
discretion in granting
the declaratory relief sought once it is established the necessary
interest exists, the Court in Queen Sibongile
Winnifred Zulu v Queen
Buhle Mathe and Others
[8]
appositely held that:
‘
...
The jurisdictional facts that have to be established are whether the
applicant has an interest in an existing, future or contingent
right
or obligation. If the court is so satisfied that such interest
exists, it is required to consider whether the order
for a
declaratory relief should be granted. The court considers whether an
applicant in seeking such an order has a standing in
terms of s 38 of
the Constitution. In addition, the doctrine of ripeness is
at issue, as consideration is given to whether
prejudice has already
resulted or is inevitable, irrespective of whether the action is
complete or not. The doctrine of ripeness may
also require
an enquiry as to whether alternative remedies have been exhausted.
This is termed a premature action. As aforesaid,
s 21(1)(c)
of
the
Superior Courts Act 10 of 2013
enjoins the high court ‘in
its discretion and at the instance of any interested person to
enquire into and determine any
existing, future or contingent right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon
the determination’. In addition, a
court will not grant a declaratory order on moot or academic issues,
as this would conflict
with the doctrine of effectiveness. ...’
[18]
I am not satisfied that the applicant has met the requirements for
declaratory relief to be competent. The
applicant has a direct
interest in the provision and payment of electricity as it is an
issue that directly impacts upon its operations
and will continue to
do so going forward. Absent an agreement with British for payments to
the applicant to satisfy the portion
of the bulk supply from the
municipality to the respondents, the applicant may suffer harm. This
leaves the second leg of the enquiry,
namely whether this Court
should exercise its discretion, based on the facts and the issues at
stake in this case, and grant the
applicant the declaratory relief
sought.
[19]
A further consideration is whether prejudice has already resulted or
is reasonably likely to result, even
if some action may still need to
come going forward. This was made clear in Rhino Oil and Gas
Exploration South Africa (Pty) Ltd
v Normandien Farms (Pty) Ltd and
Another
[9]
as follows:
‘
There
is a close connection between prejudice and ripeness. Baxter states
that 'the appropriate criterion by which the ripeness
of the action
in question is to be measured is whether prejudice has already
resulted or is inevitable, irrespective of whether
the action is
complete or not'.
[20]
The applicant is unable to illustrate a clear right to the relief
sought by convincing the Court to grant
declaratory relief in its
favour and the respondents oppose the interdictory part of the relief
sought. In
Setlogelo v Setlogelo
[10]
the Court explained the requirements of an interdict as follows: ‘
...
The requisites for the right to claim an interdict are well known; a
clear right, injury actually committed or reasonably apprehended,
and
the absence of similar protection by any other ordinary remedy
…’. In addition, the applicant has already stated that
it is in other litigation with British for outstanding amounts.
Therefore, the applicant, bar a proper legal basis for its claim for
declaratory and final interdict relief, should avail itself
other
ordinary remedies for any damages against British.
[21]
Whilst the applicant discusses the requirements of an interim
interdict, it is clear from the couching of
the relief sought that
the applicant seeks final relief. The applicant has failed to
demonstrate a clear right, nor that there
is an absence of an
adequate alternative remedy. In addition, the applicant was unable to
explain the relief sought, as far as
it impugns upon the respondents
some form of unlawful / illegal activity. From the papers, the
applicant was also unable to demonstrate
that there is reasonable
apprehension of harm.
Costs
[22]
The application is dismissed with costs.
LUKHAIMANE
AJ
Acting
Judge of the High Court of South Africa
Gauteng
Division, PRETORIA
Appearances
:
Heard
on:
24
April 2026
Judgment
on:
28
May 2026
Counsel
for the Applicants:
Adv
Francois Muller
Instructed
by:
Dixon
Attorneys
For
the Ninth Respondent:
Self
represented
All
other Respondents:
Adv
HP West
Instructed
by:
O’Donoghue
& Marais Inc
[1]
Notice
of Motion
[2]
CaseLines
006-32 paragraph 6.10 to 6.11 FA, CaseLines 006-64, Annexure FA3)
[3]
Annexure
FA6
[4]
CaseLines
006 – 190, paragraph 33; 006 - 174
[5]
Annexures
FA8 and FA9
[6]
Act 10 of 2013.
[7]
2025 (4) SA 84
(SCA) at para 31.
[8]
2024 JDR 1017 (SCA) at para 12. See also
West
Coast Rock Lobster Association and Others v Minister of
Environmental Affairs and Tourism and Others
[2011]
All SA 487
(SCA) para 45.
[9]
2019
(6) SA 400
(SCA) at para 33.
[10]
1914
AD 221
at
227.
See
also
Masstores
(Pty) Ltd v Pick N Pay Retailers (Pty) Ltd
2017 (1) SA 613
(CC) at para 8.