A REVIEW IN LIGHT OF the RECENT JUDGMENT: L J MCGREGOR VS SELBORNE PARK BODY CORPORATE & OTHERS

Summary of the facts

The issue in contention herein concerned whether or not removal of an owner’s access and use of enjoyment of the electronic booking system (remote access), utilised for access by his tenant when renting out his units was an act of spoliation. This restriction of access being as a result of actions taken by the Body Corporate due to the non-payment of levies due, owing and payable to the Body Corporate.

The Appellant contended that he had peaceful and undisturbed access to and use of his units in the estate and the system when the units were transferred to his name. This access was exercised through an access card issued by the estate which he would swipe at the electronic reading mechanism.

He averred that he was also denied peaceful and undisturbed access to and use of the estate's visitor management solution application for the sake of leasing his unit to prospective tenants as a result of a resolution passed by the board of trustees.

The Appellant relied on the basis for the disturbance of his access and use of the estate in stating that the system was as a result of the resolution passed, the effect would be that unit owners who were in arrears with their levies would only be granted consent to let their units on condition that they had paid their outstanding arrear levies. Furthermore, those unit owners who were in arrears would have their access cards deactivated and would be required to sign at the main gate in order to gain access into the estate and would be required to use the intercom system to get to their units.


The Court ventured into the definition of the mandamant van spolie remedy and whether or not the owner, who was in arrears, qualifies to rely on same. The High Court referenced the case of Telkom SA Ltd v Xsinet (Pty) Ltd, wherein it was held that the remedy of mandament van spolie is not available where personal rights are concerned and 'the order sought is merely to compel specific performance of a contractual right in order to resolve a contractual dispute'.

With the above considered, the Court provided that the Appellant's rights were contractual in nature as they flow from him being a member of the Body Borporate. He requires the approval of the trustees of the First Respondent to hire out his units. No evidence was put forth wherein the appellant sought the trustees' approval for hiring his units and that same was unreasonably refused.

The Appellant could therefore not seek an order of the Court to compel the trustees to approve the letting of his units where he had not previously sought such approval.

In summation – the High Court held that an owner’s right to use and enjoyment of access to the property vests in the Law of Contract. The estate’s trustees have a right to pass resolutions in terms of the Sectional Titles Management Act. The resolution passed essentially extenuates the owner’s duty in respect of paying levies and therefore withholding access until such time that the levies have been paid – where an action has been instituted - does not offend the principle of legality.

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