“Force is not a remedy.” (John Bright)
The facts
The owner had two properties in a residential estate in Midrand, one of which she leased to tenants. A dispute had arisen between her and the association over levies and other charges.
The association had already sued her in the Magistrates’ Court for the amounts it claimed were outstanding. She disputed both her liability and the amount claimed. While that case was still pending, the association disabled fingerprint and facial recognition access for her and her tenants, forcing them to use the visitors’ lane.
The owner then approached the High Court to have their biometric access restored. The levy claim remained before the Magistrates’ Court.
Can an estate use access to enforce payment?
The association pointed to its Memorandum of Incorporation, which allowed it to withhold biometric access where a member was in breach, including by failing to pay an amount due. But the alleged default was already the subject of the separate Magistrates’ Court dispute. The owner denied that she owed what the association claimed.
The High Court held that the association could not decide for itself that she was in default. Claiming a breach while the dispute remained unresolved was premature, and by cutting off access on that basis the association was itself in breach of the relationship it was purporting to enforce.
It also left the association occupying three roles at once:
- the judge of whether a debt existed
- the judge of what should follow
- the party that carried out the sentence
That is the kind of self-help the law does not permit.
Is biometric access part of possessing your home?
The owner relied on the mandament van spolie, a remedy that restores the previous position without first deciding who is right in the underlying dispute.
The Court held that biometric access was linked to possession of the property. Unlike a separately supplied service such as electricity, it existed to facilitate entry to a home the residents already possessed. Removing it therefore interfered with their possession.
But they could still get home
The association argued that nobody had actually been locked out. The owner and her tenants could still enter through the visitors’ lane.
The Court rejected this argument. What had been taken away was the particular method of access the residents had previously exercised. Once biometric access was recognised as an incident of possession of the property, the fact that they could still use the visitors’ lane was irrelevant.
What about the gym and other amenities?
The Court drew a line between access to the property and access to recreational facilities.
Access to the gym, tennis courts, squash courts, and clubhouse was separate from access to the owner’s property, so it could not be restored using the same remedy. The Court nevertheless indicated that removing access to those amenities while the court process was pending and without a court order was prima facie unlawful. It was simply the wrong remedy for that part of the complaint.
The association was ordered to immediately restore fingerprint and facial recognition access for the owner and her tenants, and to pay the costs of the application, including legal costs.
The judgment does not allow homeowners to ignore levies they lawfully owe. It does, however, confirm that an association cannot disable access to a resident’s property to force payment of a disputed debt.
Embroiled in a levies dispute? Speak to us about your rights and the appropriate legal remedy.
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