Consumer Information

Author : Maryna Botha – STBB
18 February 2016


This matter deals with objections raised in respect of some restrictive rules contained in the homeowners’ association’s governing documents. As often is the case, the court is tasked with defusing the tension, assessing what an owner thinks is unfair and what the governing board’s assumed reasonable rules are. The judgment also deals with the tricky issue of deactivating access discs as a consequence of non-payment of penalties.


The Mount Edgecombe Country Club Estate consists of more than 890 freehold and sectional title residential developments. The entire estate is enclosed by a 2m high palisade fence, topped with electrified security wiring. It has gated access points controlled by guards and is serviced by a network of roads which are situated upon erven registered in the name of the estate’s homeowners’ association (the HOA).

Singh owned three properties in the estate. In terms of the sale agreement entered into by Singh, he bound himself to the constitution and rules of the HOA.

Various disputes arose after the HOA deactivated Mr Singh and his family’s access cards to the estate, on the basis that Mr Singh did not pay fines that were levied in respect of three speed limit transgressions by his daughter. This resulted in an application by Singh to court for an order obliging the HOA to reactivate the access discs and an interim order was granted in 2014. The HOA also refused access to the estate to some contractors employed by Singh, arguing that they were not accredited and that Mr Singh did not request access for them, as per the estate rules.

The present matter combined three separate matters, being:

1. An application by Singh in which he sought an order declaring certain conduct rules unlawful. These are the rules in terms of which:

(i) the HOA can impose penalties for speeding transgressions;
(ii) the HOA could restrict the employment hours of domestic employees bystating that they must make use of the bus service provided for ingress and egress to the estate and that the buses only operate within certain hours; and
(iii) contractors were required to accredit with the estate before they could be employed by residents for certain work.

The HOA instituted a counter application in which it sought an order declaring that it was entitled to suspend the use of the access cards issued to Singh, his invitees and members of his family, together with the biometric access for such persons, for so long as the speeding fines issued to him (pursuant to the conduct rules) have not been paid.

2. In the second application, Singh sought confirmation of a temporary interdict issued previously by the court in a separate matter directing the HOA to reactivate his access cards and biometric access of his family to the estate premises.

3. Lastly, Singh sought an order directing the HOA to allow certain contractors engaged by him access to the estate.

Were the relevant rules unlawful?

• The relationship between Singh and the HOA has its foundation in contract and it is this contractual nature of the relationship between the parties that provides the framework in which this application ought to be decided.

• Any consideration of whether the rules complained of are unlawful is an enquiry whether the rules are contrary to public policy.

• In any interpretation of the rules, sight must not be lost of their intended purpose: One of the objectives of the HOA, as stated in its memorandum of incorporation, is to “promote, advance and protect the interests” of its members, to “provide security within the Estate and make and enforce regulations in this regard” and to “enforce adherence to the Design and Development Rules and Landscaping Philosophy for the Estate”.

• Further, whatever opinions one might have as to whether any rules are too invasive, it should be recognised that they have been agreed upon by the contracting parties to maintain a structure within which residents can feel secure as regards to the environment into which they have bought, and as regards the conduct reasonably to be expected of their neighbours, and of the HOA in its capacity as the enforcement authority with respect to the rules.

• Setting a speed limit: The relevant rules did not provide for a consequence flowing from non-compliance with the rules by a third party who gained access to the estate in a manner other than through the authority of a resident. The control of the speed limit within the estate therefore fell squarely within the provisions of the contract concluded between the HOA and the owners of the properties within the estate.

• On the facts, there was no proof that the HOA endeavoured to control the conduct of all persons entering the estate or to impose the provisions of the National Road Traffic Act upon those persons. The rules provided that the roads within the estate in fact fall within the jurisdiction of the National Road Traffic Act and as such the authority of the peace officers was also recognised. Their rules also did not prohibit the enforcement of the provisions of the National Road Traffic Act by the relevant authorities within the estate.

• The conduct rules are “superimposed” on any national or municipal legislation and do not usurp them. As such they are not unlawful.

• The rule relating to accreditation of contractors: The HOA’s directors are given the authority to make reasonable rules for the management, control, administration, use and enjoyment of the estate. With this concept in mind there is no reason why it would not seek to ensure, or in fact ought to ensure, that the standard of construction and landscaping that takes place on the estate conforms to the agreed standard. The only way to ensure that the required standard is met is to ensure that the contractor or landscaper concerned is competent and able to carry out the works approved by the HOA in a proper manner. In turn, the only way to do this is to ensure that the contractor or landscaper is either accredited by a recognised authority or has, through prior conduct, shown that he or she is so competent. There is then no reason why the HOA ought not to have a list of accredited service providers who are either accredited by a recognised authority or have, through prior conduct, established that they are competent. It must be noted that the list was not a closed list and owners may apply for accreditation and placement of contractors on the list. Singh neither approached or made application to the HOA to have his contractors of choice placed on the list. The HOA thus did not prescribe or dictate which contractors the residents may use. All that the HOA was in fact doing is giving effect to what has been agreed upon by the owners of the units as to the standard of building and landscaping that is required within the estate.

• The rule regarding the domestic employees of owners: Singh did not show that it bus service provided for domestic employees is not available”. On a proper interpretation of the rule, it appeared that it was aimed at prescribing a set of procedures to ensure an orderly ingress and egress of domestic employees onto and off the estate and efficient transportation to and from their places of employment. Taking into account the traffic requirements of the owners in the estate and the coming and going during peak times, such a rule was reasonable.

The Counter Application

• In the counter application, the HOA sought an order that it was entitled to suspend the use of access cards and to suspend biometric access for so long as the estate’s traffic violation fines remained unpaid.

• The rules do make provisions to suspend access cards for the household concerned.

• The relevant rule requiring owners to abide by the estate’s speed limitation of 40 km/h must be seen in the context of other rules which provide that access cards may only be issued to persons permanently residing on the estate and then also, with certain limitations of rights, to club members, guests, or persons authorised to work on the estate.

• The access disc gives a resident the authority to freely enter and exit the estate. A suspension of the access card, or the biometric fingerprint reading system, would therefore be a suspension of that resident’s entitlement to freely enter and exit the estate, a right afforded to that person in terms of the rules.

• In bringing the application to suspend Singh’s access cards or biometric access, the HOA explicitly seeks a court order to enforce this sanction. Anything otherwise would be tantamount to self-help which is not allowed in our law. And, in order to succeed in its counter application, the HOA must make out a case that it is entitled to suspend such right.

• Singh disputed the validity of the penalties and denied that the speeds at which his daughter was recorded as travelling were correct and thus also denied that the contravention notices were issued in accordance with the HOA’s rules.

• The HOA thus had to establish that there was a breach of the conduct rules and that it would be entitled to an order directing that it may suspend Singh’s access cards and biometric access to the estate. This in turn required the HOA to show that Singh (or a transgressor) contravened the rule by travelling on the estate at a speed in excess of 40 km/h; how this was determined; the details of the calibration of the recording instrument; the competence of the person operating it; and evidence from the person who actually determined that she was travelling at that speed. Without this, generally, the transgressor in the spoliation application can simply deny that he/she was travelling at that speed.

• As there were no direct evidence or averments in the papers as to how it was determined that Singh’s daughter was travelling on the estate roads at a speed in excess of 40 km/h, the court cannot be satisfied as to the inherent credibility of the HOA’s averment that Singh’s daughter was speeding.

• Therefore the HOA failed to establish that Singh’s daughter was in fact speeding and thus also failed to establish that Singh has breached the conduct rules as alleged.

The HOA’s counter application therefore failed.

The Spoliation Application:

• An interim order was granted in another matter between the HOA and Singh (under a different case number) in February 2014 directing the HOA to re-activate Singh’s access cards and biometric access to the estate. Singh now sought an order making the rule final.

• Singh submitted that in deactivating the access cards and biometric access, the HOA committed an act of spoliation in respect of the peaceful and undisturbed possession by him and his family over access to their property within the estate.

• In our law, the possession of incorporeal rights is protected against spoliation by the mandament. • The remedy is confined to the protection of possession, which is a right in property, and is not to be extended to the protection of personal rights. Only rights to use or occupy property, or incidents of occupation or control of property, is protected under the mandament.

• The roads laid out on the estate are public roads. Singh and the members of his family, would, as of right, be entitled to utilise such road network to gain access to their property or properties. If one has reference to the HOA’s rules they are designed to restrict unauthorised access to the estate and not authorised access.

• The conduct rules further acknowledge that a resident, by virtue of his or her ownership or possession and control of a property within the estate, is entitled to unrestricted access to the estate. Accepting that Singh and his family are entitled to freely enter and exit the estate to gain access to the properties which they own, the exercise of their right to do so is an incident of their possession or control of the properties. The illicit deprivation of this quasi possession of the right is protected by the mandament van spolie.

• For the HOA to succeed in its argument that it was entitled, by virtue of its rules, to suspend the access cards and biometric access, it would have to show that Singh in fact breached the rules. In order to do so, the HOA would have to show that the amount it contended was due by Singh was legally payable.

• The only way the HOA would be able to do so is by having recourse to a court of law to make such a determination, otherwise it would constitute self-help.

• The HOA’s contention that it has legally suspended Singh’s access cards and biometric access to the estate by operation of the provisions of its memorandum of incorporation and conduct rules was therefore without merit.
The Trespass Application

• This application was another application brought in a separate action, which was included in this judgment. It resulted from the HOA’s refusal to allow Singh’s contractors on the estate as they were not accredited and no prior permission was obtained. In terms of the rules all alterations and renovations had to be approved by the HOA.

• Singh however argued that he has, at the very least, a prima facie right to attend to the replacement of the wooden windows on his property with aluminium framed windows. He further contended that the conduct rules do not prevent him from attending to the maintenance and upkeep of the property, and that they in fact encourage it.

• The court found that for the work effected, Singh did in fact require permission from the HOA as provided for in the rules to which he was contractually bound. As such, the HOA was entitled to refuse access to the contractors.

Singh’s application in this regard thus failed.

The Judgment can be viewed here: