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• WILL A COURT ORDER SUFFICE FOR THE DISCONNECTION OF AN OWNERS' UTILITIES OR DOES IT INFRINGE ON BASIC HUMAN RIGHTS?

WILL A COURT ORDER SUFFICE FOR THE DISCONNECTION OF AN OWNERS' UTILITIES OR DOES IT INFRINGE ON BASIC HUMAN RIGHTS?

The recovery of levies and utilities in regard to Sectional titles has historically always been dealt with by way of litigation. With the delays in the judicial system it often takes two to three weeks to get summons issued and thereafter another two weeks to a good few months to get default judgment granted which ultimately prejudices the body corporate that is struggling to keep afloat with the escalating levies and utility bills. Whilst magistrate court litigation at the onset seems like a cheaper option the time delays could be costly and in an attempt to alleviate the prejudice suffered by the body corporate a landmark Application on behalf of Cathkin Peak South Body Corporate was made to the South Gauteng High Court by SSLR Attorneys where they asked the Court to order a money judgment on the full outstanding amount of levies should the owners not settle the debt immediately, the body corporate would be allowed to disconnect the electricity and restrict/limit the water supply to 6000 litres per a month if the outstanding levies were not settled in full. The court granted the Application and requested the Applicant to appoint a contractor to attend to the disconnection and restriction respectfully. This Court order has opened up the options available to attorneys that deal with Sectional Title Recoveries and has to some extent alleviated the frustrations we have to deal with on a daily basis with our Magistrate Court procedures.

Should an owner be in a position where he has a tenant that religiously pays his rental every month, and the owner fails to pay his utilities and levies to the body corporate, with the consequences of such a court order the owner may be forced to pay his debt in order to restore the tenant’s need to the said utilities and avoid losing a well-paying tenant or his investment, alternatively, the owner’s default may result in the tenant vacating the premises leaving us with the option to issue a warrant of execution on the owner with the ultimate goal of having the property auctioned to the highest bidder.

The positive of this type of Application is that, the body corporate is protected from taking on further financial losses due to negligence of owners.  

However, the question then arises is the restriction or limitation of water supply an infringement on Section 27(1)(b) of the Constitution of the Republic of South Africa or is the restriction to a certain quantity of water actually fair?
 

In my opinion dealing with Sectional Title’s and recovery of levies, this approach may be beneficial to the client, as the client will see results faster than following the good old recovery process.  Further, regarding the constitutional aspect of the order, the rights of the body corporate and that of the owner need to be weighed up against each other in order to validate such action.  Thus as per the abovementioned case, one will note that the honourable court did not close the water supply but rather they restricted the water supply, which would be seen as fair in the circumstances.

Author:   Sandisha Sohan (Debt Collecting & General Litigation) (PMB Office)
Tel:  033 341 9100
E-mail:  sandishas@tmj.co.za