urgency, declined to condone the applicant’s non -compliance with the Uniform
Rules, and held in the alternative that the application failed on the merits.
[2] The applicant now seeks leave to appeal against the whole of that judgment and
the orders made, and asks that the appeal be referred to the Full Court of this
Division. The application is opposed. I have had the benefit of comprehensive
heads of argument from Mr T Mahlare for the applicant and Mr S McTurk for the
respondent, as well as full argument before me, for which I am indebted.
[3] The grounds of appeal are set out in the notice dated 8 July 2026 and are
conveniently grouped under five headings: Urgency; the requirements of the
mandament van spolie; the alleged misapplication of the authorities; the authority
to oppose the proceedings; costs; and mootness.
The test on leave to appeal
[4] Section 17(1)(a) of the Superior Courts Act 10 of 2013 provides that leave to
appeal may only be given where the judge concerned is of the opinion that the
appeal would have a reasonable prospect of success, or that there is some other
compelling reason why the appeal should be heard, including conflicting
judgments on the matter under consideration.1
[5] The threshold under the Act is higher than that which applied under the repealed
Supreme Court Act 59 of 1959. The use of the word “would” connotes a measure
of certainty that another court will differ from the court whose judgment is sought
to be appealed against. There must be a sound, rational basis for the conclusion
that there are prospects of success; a mere possibility of success, or the fact that
the matter is arguable, is not enough.2
[6] The two requirements of s 17(1)(a) are disjunctive. This means that even where
a court is not persuaded that the appeal would succeed, leave may be granted
where there is some other compelling reason why the appeal should be heard.
1Superior Courts Act 10 of 2013, s 17(1)(a).
1Superior Courts Act 10 of 2013, s 17(1)(a).
2The Mont Chevaux Trust v Tina Goosen and 18 Others 2014 JDR 2325 (LCC) at para 6, endorsed in
Acting National Director of Public Prosecutions and Others v Democratic Alliance [2016] ZAGPPHC
489 at para 25; Notshokovu v S [2016] ZASCA 112 at para 2 and S v Smith 2012 (1) SACR 567 (SCA)
at para 7.
Conflicting judgments on the question under consideration are expressly
identified in the section as such a reason.
[7] A judge should not grant leave merely because the losing party is dissatisfied,
nor because the judge entertains some doubt in retrospect regarding the
correctness of his or her judgment. Equally, however, a judge should not withhold
leave in order prevent his or her own reasoning from having to withstand judicial
scrutiny, particularly where the question is one of general importance on which
the authorities are divided.
Appealability
[8] The respondent contends, as a preliminary objection, that a refusal to enrol a
matter as one of urgency is not a decision having final effect and is therefore not
appealable, relying on Zweni and the line of authority concerning orders of a
preparatory or procedural character.3
[9] The proposition is correct as a general statement of law: Where a court declines
to hear a matter on the urgent roll, the ordinary order is that the application is
struck from the roll, and such an order decides nothing between the parties; it is
not final in effect and it is thus, not appealable.
[10] That, however, is not what occurred here. The order I made did not strike the
application from the roll , but instead disputed the extent of the urgency and
refused condonation for the failure to comply with the time periods prescribed in
the Rules. This notwithstanding, I nevertheless considered the merits, dismissed
the application, and ordered the applicant to pay the respondent’s costs.4 I went
on expressly to hold that, even if the application were entertained on the urgent
roll, it failed on the merits because the applicant had not established possession
or quasi-possession of the kind protected by the mandament.5
[11] I took this approach as on my understanding, this is one now required of High
Court judges by the Supreme Court of Appeal to avoid the matter having to be
3Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532J–533A.
3Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532J–533A.
4Judgment, order paras (1) to (3).
5Judgment at para [37].
returned to the High Court for determination, particularly where a matter is struck
from the roll for lack of urgency and the Supreme Court of Appeal finds that the
matter was indeed urgent and ought properly to have been heard. The same
applies where condonation is refused, not necessarily in the context of urgency,
and it is found that it ought to have been granted and the merits determined.
[12] An order dismissing an application is final in effect, definitive of the rights of the
parties on the case as pleaded, and dispositive of the relief claimed. It is therefore
appealable. As I determined the merits, t he respondent’s objection cannot be
sustained.
Urgency
[13] The applicant’s first ground is that the court erred in dismissing the application
for want of urgency, when the mandament is by its nature an urgent remedy
directed at the prevention of self-help.
[14] There is force in the proposition that a spoliation application is ordinarily urgent,
since the object of the remedy is the immediate restoration of the status quo ante,
before all else.6 But it does not follow that every spoliation application is entitled
to the degree of abridgment of the time periods prescribed in the Rules which the
applicant chose. Urgency remains a matter of degree, and the timetable imposed
on a respondent must be commensurate with the extent of the urgency and the
harm alleged. I found that the matter was not so urgent to grant the respondent
but one day to answer the application.
[15] Counsel for the applicant submits that paragraph 9 of the replying affidavit
contained a full explanation for the interval between 13 and 18 May 2026 that
included the respondent’s failure to respond to correspondence , the briefing of
counsel on the afternoon of Friday 15 May 2026, the finalisation of the founding
affidavit on Saturday 16 May 2026 , and the necessity for the applicant to travel
to Limpopo for a family bereavement over that weekend. My judgment simply
to Limpopo for a family bereavement over that weekend. My judgment simply
6Ngqukumba v Minister of Safety and Security and Others 2014 (5) SA 112 (CC); 2014 (7) BCLR 788
(CC) at para 10.
records that the delay was not adequately explained, and does not expressly
deal with this explanation.
[16] I remain of the view that the abridgment adopted - affording the respondent a
single day to answer - was not justified on the material before me, and that the
applicant did not demonstrate that he would be denied substantial redress in due
course. But I am bound to accept that another court, having regard to the
explanation in reply and to the anti -self-help rationale of the remedy, might take
a different view of the exercise of that discretion. In any event, my finding on
urgency is not decisive as the application was determined on the merits in the
alternative.
The central question: quasi-possession and third-party access
[17] The substance of this application lies in grounds 1.2 to 1.5 of the notice of
application for leave to appeal. The applicant contends that I erred in
characterising the facility by which he was able to generate electronic access
authorisation codes to grant third parties access as a mere contractual right,
rather than as an incident of his possession of his home within the estate. This
possession, he insists, included his entitlement to allow the transport service he
had engaged to transport his children to and from school to have access, not
only to his estate, but his property within the estate.
[18] In paragraph [13] of my judgment I recorded that the effect of Bill7 was taken “as
summarised in the available teaching materials”.8 Having now had the benefit of
full argument and of the reported judgment itself, I am satisfied that Bill says
considerably more than the summary conveyed, and that what it says bears
directly on the reasoning in my judgment.
[19] Southwood AJ held that a right of access to property is an incident of the
possession or control of that property , that prima facie a right of access into an
estate is an incident of possession of the property within it , and that biometric
estate is an incident of possession of the property within it , and that biometric
access and access cards give effect to such access and are “ clearly linked to
7 Bill v Waterfall Estate Home Owners Association NPC and Another (2019/21837) [2020] ZAGPJHC
81; [2020] 3 All SA 115 (GJ); 2020 (6) SA 145 (GJ) (5 March 2020) (Southwood AJ).
8Judgment at para [13].
possession of the property ,” and that the resident acquir es quasi-possessio of
those rights by exercising them.9
[20] Critically for present purposes, the Southwood AJ did not confine that reasoning
to the resident’s own credentials, holding that the access which the applicant’s
contractors had been permitted to exercise “ must have been a consequence of
the applicant’s possession of the property”,that such third-party access was “also
an incident of the applicant’s possession of the property ,” and that “[b]oth the
applicant’s biometric access and the contractor’s access may, therefore, be
protected by means of a spoliation application”.10
[21] Southwood AJ held further that the existence of an alternative means of entering
the estate did not answer the claim , “given that it is the particular method of
access … which has been deactivated, the applicant has been dispossessed of
this right. In these circumstances, it matters not, where this right is the subject
matter of the application, that he has an alternative method of accessing the
Estate.”11
[22] Finally, and directly relevant to paragraph [40] of my judgment, Southwood AJ
held that the association’s governing contracts and articles of association did not
empower it to disable access as “a means of leverage to ensure compliance with
the Rules ,” and that the relevant articles were unenforceable insofar as they
purported to do so without recourse to a court.12
[23] Two consequences follow from my proper reading of the judgment: First, my
reasoning at paragraphs [24] to [30] rested substantially on the fact that the
applicant’s own biometric access remained intact, and on the characterisation of
the third-party authorisation facility as too remote from his possession. On the
applicant’s reading of Bill, both propositions are open to challenge on the
strength of Bill. While not binding on me, this is a decision in my Division and is
considerable persuasive authority that must be considered by me.
considerable persuasive authority that must be considered by me.
9Bill at paras [50]–[52], [76]–[78].
10Bill at paras [89]–[91].
11Bill at para [95].
12Bill at paras [121], [123] and [128].
[24] Second, my observation at paragraph [40] that the applicant “has the remedy of
paying his arrears and thereby having the restriction … lifted ” sits uneasily with
paragraphs [121] to [123] of Bill, and with the principle that the mandament is
indifferent to the underlying merits and exists precisely to deny a party the fruits
of self-help. As it turns out, and will appear later in this judgment, this is precisely
what the applicant did under protest.
[25] The applicant also submits, correctly, that De Beer v Zimbali Estate Management
Association (Pty) Ltd13 is a less secure foundation than the judgment treated it
as being. The applicant in that matter was an estate agent employed by a
property enterprise, whose access disc had been deactivated. She held no
possessory interest in any property within the estate. The distinction the applicant
draws is a real one, and it materially weakens the description of De Beer in
paragraph [18] of the judgment as “the leading limiting authority.”
[26] None of this means that the applicant is correct, and the findings in Bill correctly
reflect the legal position . There remains substantial authority supporting the
conclusion that I came to in my judgment. In Eskom Holdings SOC Ltd v
Masinda14 the Supreme Court of Appeal held that the quasi-possession of a right
does not attract the protection of the mandament where the right is sourced
purely in contract ; and that the right must be an incident of possession of the
property to which it relates. That judgment, which binds me, supports my
judgment, as do both Scholtz and Xsinet,15 both being Supreme Court of Appeal
decisions.
[27] Nor is Bill the final word on this issue in this Division. In Lenz v Blair Atholl
Homeowners Association NPC, 16 Nicholls J (as she then was) held that where
a resident had contractually agreed that biometric access would be invalidated
while levies remained unpaid, the association’s resort to the contract ual
while levies remained unpaid, the association’s resort to the contract ual
13 De Beer v Zimbali Estate Management Association (Pty) Ltd and Another (6711/05) [2006] ZAKZHC
21; 2007 (3) SA 254 (N) at para 3.
14Eskom Holdings SOC Ltd v Masinda (1225/2018) [2019] ZASCA 98; 2019 (5) SA 386 (SCA) at paras
21-22.
15FirstRand Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others 2008 (2) SA 503 (SCA)
at para 13 and Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) at paras 13-14.
16Lenz v Blair Atholl Homeowners Association NPC GJ 2016/36336, unreported judgment dated 11
April 2016 (Nicholls J, as she then was).
remedies available could not be characterised as unlawful deprivation of
possession. A Full Court in KwaZulu -Natal took a similar view in McGregor v
Selborne Park Body Corporate .17 A contrary approach was admittedly taken in
Bill, Singh and Fisher v Body Corporate Misty Bay.18
[28] There can thus be no doubt that there are conflicting judgments on this issue. In
Leggatt and Another v Blair Atholl Home Owners Association NPC ,19 a judge of
this Division conceded that there is “no judicial consensus on this issue,” that the
conflict extends across divisions, and that “these conflicts are occurring regularly
in community schemes and that certainty on this point is necessary whichever
way it is to be decided . ” It was on this basis that the court in Leggatt granted
leave to appeal in terms of s 17(1)(a)(ii).
[29] The present matter takes the question a step further than any of those cases: In
Bill, Singh, Lenz and Leggatt, it was the resident’s own credentials that were
disabled; here they were not. What was withdrawn was an application -based
facility by which the resident authorised third parties - relevantly, a scholar
transport service conveying his minor children - to enter the estate. Whether that
facility is an incident of the resident’s possession of his home, or a revocable
contractual right or administrative service, is a question upon which, so far as I
have been able to establish, no reported decision has determined.
[30] I remain of the view that the answer I gave is the correct one, and that the facility
in issue is properly characterised as a regulated means of admitting others rather
than as an incident of the applicant’s own possession. But I am unable to say
that the contrary view is not reasonably arguable. Paragraphs [89] to [91] of Bill
provide the applicant with a direct answer to the very distinction on which my
judgment turned, and paragraph [95] provides an answer to the reliance I placed
judgment turned, and paragraph [95] provides an answer to the reliance I placed
on the applicant’s retained biometric access. A court of appeal, applying those
17 McGregor v Selborne Park Body Corporate and Others (AR224/2020) [2021] ZAKZPHC 87 (8
October 2021).
18Singh and Another v Mount Edgecombe Country Club Estate Management Association (RF) NPC and
Others (3962/2014, 1118/2014, 4375/2014) [2016] ZAKZDHC 2; [2016] 2 All SA 218 (KZD); 2016 (5)
SA 134 (KZD); Fisher v Body Corporate Misty Bay 2012 (4) SA 215 (GNP).
19 Leggatt and Another v Blair Atholl Home Owners Association NPC (130295/2023) [2024] ZAGPJHC
1753 (22 February 2024) at paras [13]-[16].
passages, might well come to a different conclusion. I am also now more inclined
to accepting that the position of a third -party contractor, who had independently
been granted access, is on the same footing as that of a school transport facility.
[31] I am therefore satisfied that the applicant has met the threshold in s 17(1)(a)(i)
on this ground, and that in any event , there is a compelling reason within the
meaning of s 17(1)(a)(ii) why the appeal should be heard. This is because there
are conflicting authorities, the question recurs with increasing frequency in
community schemes as access control becomes digitised , and the point now
raised - whether the digitisation of visitor authorisation carries possessory
protection with it - is novel and of public importance as more and more people
choose to live in residential estates.
The pleaded case and the relief sought in the notice of motion
[32] The respondent’s strongest answer is that that prayer 2 of the notice of motion
sought restoration of the applicant’s possession of his immovable property and
that no relief was sought that was ultimately sought in the matter before me. Of
particular significance is that nowhere in the notice of motion was third-party
access sought. In this regard it pointed out that the founding affidavit conflated
biometric access with use of the MyEstateLife application, and that the case now
advanced was made in reply and in argument.20
[33] The function of pleadings is to define the issues and to prevent trial by ambush,
and a court determines the dispute the parties have presented rather than one
fashioned in argument.21 It is now trite that a litigant may not make his case in
reply.
[34] The difficulty is that this objection was not the basis on which I decided the
matter; I decided it upon the characterisation of the right sought to be protected.
Whether the pleaded case is capable of sustaining the relief now contended for
Whether the pleaded case is capable of sustaining the relief now contended for
is itself a question on which the Court of appeal is better placed to pronounce,
20Notice of motion, prayer 2, read with founding affidavit paras 6.1 and 6.2.
21Bahwiti Investments CC t/a Perfect Drive Tyre and Fitment Centre and Another v Apollo Tyres Africa
(Pty) Ltd (2025/005350) [2026] ZAGPJHC 823 (20 July 2026) at paras 21 –22; Shill v Milner 1937 AD
101 at 105–106.
with the full record before it. It is not a reason to refuse leave, and the respondent
is of course free to advance the point on appeal.
Authority to oppose the relief sought and Uniform Rule 7
[35] Grounds 1.9 and the corresponding submissions concern the authority of the
respondent’s deponent to oppose the application and to depose to the answering
affidavit, and the court’s alleged error in requiring compliance with Uniform Rule
7 or in failing to condone non-compliance with it.
[36] This ground has no prospect of success. Ganes - upon which the applicant
himself relies - is authority for the proposition that a deponent need not be
authorised to depose to an affidavit, and that it is the institution and prosecution
of proceedings which must be authorised. 22 Opposition to an application
instituted by another party is not the institution of proceedings. The respondent’s
attorneys of record acted as its agents in opposing, and their mandate was never
impugned by way of a Rule 7 notice.
[37] Moreover, the record reflects that when the applicant’s counsel sought a direction
as to whether the point would be entertained, and was directed to proceed on
the merits, he did so. The point was not pursued.
[38] However, at the hearing of the application for leave to appeal, the applicant’s
counsel relied upon an unreported decision of Top Image Africa Ltd v Top Image
Brands SA and another (Case No:2024-014325) delivered in this division on 10
December 2025 . However, the respondent’s counsel rightly found that this
decision does not apply to the fact before me, and Ganes remains the
persuasive authority. In Top Image Africa , the resolution authorising the
directors to vote in a winding up was defective. In the matter before me, there is
no suggestion that the resolution authorising the attorneys to opposed the
application was defective.
[39] And even if it was incumbe nt upon the first respondent to provide a lawful
[39] And even if it was incumbe nt upon the first respondent to provide a lawful
resolution to oppose the application, I would not have precluded the first
22Ganes and Another v Telecom Namibia Ltd (608/2002) [2003] ZASCA 123; 2004 (3) SA 615 (SCA)
at para 19.
respondent from opposing the relief sought on this basis. This is also not a valid
ground for leave to appeal and is in any event irrelevant, as I have decided to
grant leave to appeal on properly substantiated bases.
Costs
[40] The applicant complains that costs ought not to have followed the result, given
the finding that his complaint was not frivolous. An award of costs involves the
exercise of a true discretion, and a court of appeal will not interfere merely
because it would have preferred a different option within the range of permissible
decisions.23 Standing alone, this ground does not meet the s 17 threshold.
[41] The costs order is consequential upon the dismissal of the application. If the
appeal succeeds on the substantive ground, the costs order falls away with it.
There is no purpose in excising this ground from the leave which I propose to
grant.
Mootness
[42] During the course of argument of this application for leave to appeal, I was
informed from the bar that on 28 June 2026, a week after the judgment was
delivered, the applicant paid the amount demanded by the respondent, under
protest, and that access to the MyEstateLife application - including the facility to
authorise the entry of third parties - was thereupon restored. The amount so paid
is held in an interest-bearing account pending the determination of the applicant’s
contention that legal fees were improperly included in his levy account, and he
intends to reclaim it should he establish that c ontention. The position was not
disputed by the applicant.
[43] This development raises the question whether the appeal for which leave is
sought has become moot. Section 16(2)(a)(i) of the Superior Courts Act provides
that when at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result, the appeal may be
dismissed on that ground alone; and s 16(2)(a)(ii) provides that, save under
dismissed on that ground alone; and s 16(2)(a)(ii) provides that, save under
23Florence v Government of the Republic of South Africa 2014 (6) SA 456 (CC) at para 113; Ferreira v
Levin NO and Others 1996 (2) SA 621 (CC) at para 3.
exceptional circumstances, that question is to be determined without reference
to any consideration of costs.24
[44] The machinery in s 16(2)(b) to (d) to determine mootness must be decided by
court of appeal, not me as the court of first instance.25 It is nonetheless a matter
I am bound to consider, because I should not refer to the Supreme Court of
Appeal a matter which is destined to be disposed of without reaching the merits,
and because the answer bears upon both limbs of s 17(1)(a).
[45] The restoration of access means that the spoliatory relief sought in the notice of
motion can no longer be granted, and to that extent the controversy between
these parties has been overtaken by events. The adverse costs order does not
alter that conclusion, since s 16(2)(a)(ii) requires the enquiry to be conducted
without reference to costs.
[46] The dispute is not, however, rendered academic. On the contrary, three matters
remain live issues for determination by the appellate court: The first is that the
payment was made under protest and the amount is held pending determination
of whether the legal fees were properly charged. Whether the respondent was
entitled to disable the applicant’s access in order to compel that payment is
directly material to the applicant’s claim to recover it and to the character of the
payment itself. It was precisely the use of access control “ as a means of
leverage” which was held to be impermissible in Bill.26 The second is that
payment under protest is the antithesis of acquiescence; the applicant has not
pre-empted his right of appeal.27 The third is that the parties remain bound to one
another as resident and association. Nothing in the judgment prevents the
respondent from restricting the facility again should further arrears arise or
should the amount paid under protest be recovered.
[47] Even on the assumption that the matter is moot as between the parties,
mootness is not an absolute bar to leave to appeal; a court retains a discretion
mootness is not an absolute bar to leave to appeal; a court retains a discretion
24Superior Courts Act 10 of 2013, s 16(2)(a)(i) and (ii).
25Superior Courts Act 10 of 2013, s 16(2)(b) to (d).
26Bill at paras [121] to [123].
27Dabner v South African Railways and Harbours 1920 AD 583 at 594; Hlatshwayo v Mare and Deas
1912 AD 242 at 259.
to determine an issue which is moot, and the broad distinction drawn in the
authorities is between cases in which a discrete legal issue of public importance
arises that will affect matters in the future, and cases in which no such issue
arises.28 The Constitutional Court has identified the relevant considerations as
whether an order will have a practical effect on the parties or on others, the nature
and extent of that effect, the importance of the issue, its complexity, the fullness
of the argument advanced , and the resolution of disputes between different
courts.29
[48] Applied to this matter, those considerations point firmly towards appellate
determination: The issue is discrete and purely legal and it is of importance to
the very large number of people who live in gated communities and to the
associations which administer them. Moreover, its determination would resolve
a conflict between courts, which the Constitutional Court has held weighs in
favour of entertaining a moot matter.30 This is not a case in which a court would
be invited to pronounce upon an abstract question based on hypothetical facts;
the facts are settled and the legal question arises squarely upon them.
[49] There is a further and, to my mind, weighty consideration in my determination
that I must grant leave to appeal . The practical reality is that a resident whose
access has been curtailed will ordinarily pay whatever is demanded, under
protest, in order to restore it, and will do so long before an appeal can be heard.
If the mootness which follows were in every such case to preclude appellate
consideration, the very question which divides the courts would perpetually
evade determination. That is itself a compelling reason, within the meaning of s
17(1)(a)(ii), why this appeal should be heard. The present matter is in this respect
the converse of Magidiwana,31where the Constitutional Court declined to
28Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others (864/2011)
28Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others (864/2011)
[2012] ZASCA 166; 2013 (3) SA 315 (SCA) at paras 5 and 6, citing Geldenhuys & Neethling v Beuthin
1918 AD 426 at 441 and National Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others 2000 (2) SA 1 (CC) at para 21 and fn 18.
29Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exploration and
Exploitation SOC Ltd and Others (CCT195/19) [2020] ZACC 5; 2020 (4) SA 409 (CC) at paras 46 to
50.
30Normandien Farms at para 49.
31Legal Aid South Africa v Magidiwana and Others (CCT188/14) [2015] ZACC 28; 2015 (6) SA 494
(CC) at paras 21, 27 and 28.
entertain a moot appeal because no discrete legal issue of public importance
arose and because the facts were unlikely to be replicated.
[50] I therefore do not regard the restoration of access as a reason to refuse leave.
The parties are in any event obliged to place these developments before the
Supreme Court of Appeal, which will form its own view and may invoke s 16(2) if
it considers it appropriate to do so.
Conclusion
[51] For the reasons set out above, leave to appeal should be granted. The
determinative consideration is the characterisation of the third -party access
facility. On that question, there is a reasonable prospect that another court would
come to a different conclusion, and there is in addition a compelling reason,
within the meaning of s 17(1)(a)(ii), why the appeal should be heard.
[52] The grounds relating to the authority to oppose and to costs would not, on their
own, have warranted leave. It is nevertheless neither practical nor desirable to
grant leave on a piecemeal basis where the order sought to be appealed against
is a single ord er dismissing the application. Leave will accordingly be granted
against the whole of the judgment and orders, and it will be for the applicant to
decide which grounds to pursue.
[53] As to the forum, s 17(6)(a) of the Act requires that an appeal be heard by a Full
Court of the Division concerned unless the questions of law and fact and the
other considerations involved are of such a nature that the appeal requires the
attention of the Supreme Court of Appeal.32 The applicant seeks leave to the Full
Court. The identification of the appropriate forum is, however, a matter for the
court granting leave and not for the parties, and I am not confined by the
applicant’s election.
[54] In my view, this appeal requires the attention of the Supreme Court of Appeal,
for four reasons.
32Superior Courts Act 10 of 2013, s 17(6)(a).
a. First, the conflict in the authorities is not confined to this Division. It exists
within this Division, between Bill and Lenz; and it exists between and within
other Divisions, as appears from the decisions in Singh, Fisher and
McGregor from other Divisions. A Full Court of this Division could settle the
position locally, but it could not resolve a conflict which transcends a
number of Divisions; only the Supreme Court of Appeal can do so.
b. Second, the anterior question - whether the deactivation of a resident’s own
biometric access constitutes spoliation where alternative means of entry
remain - is already before the Supreme Court of Appeal by virtue of the
order granted in Leggatt. The question raised in this matter is a direct
extension of that question. It is undesirable that the two be determined by
different courts, and there may be advantage in their being heard together
or in sequence by the same court.
c. Third, the question s raised in this matter concern the extent of the
application of Eskom Holdings SOC Ltd v Masinda , a judgment , itself, of
the Supreme Court of Appeal. Whether the principle in Masinda that rights
sourced purely in contract fall outside the mandament applies to, or is
qualified in respect of, digital access -control systems in community
schemes, is a matter upon which the Supreme Court of Appeal is best
placed to pronounce.
d. Fourth, the issue is of considerable general and practical importance :
Community schemes now regulate the residential arrangements of a very
large number of residents in gated communities. The question whether an
association may disable digital access facilities as a means of enforcing
compliance, or whether it must first obtain an order of court, requires both
a consideration the property rights of residents and the constitutional
principle against self-help that is fundamental to the mandament van spolie.
Certainty is required nationally, and it is required whichever way the
question is ultimately decided.