The attached case note (written by Rogan Heale, one of our candidate attorneys in our property department) summarises the plight of a Homeowners’ Association taken to court for spoliation (the unlawful deprivation of the supply of electricity) by a tenant.

In this case, a title deed condition obliged the owner of the land, and all occupiers of the land, to comply with the Homeowners’ Assocation’s rules, which included a rule providing that no electricity shall be sold to an owner in arrears. The court held that the refusal to sell further pre-paid electricity to the unit in question, was lawful, and did not constitute spoliation, because it was done in terms of the rules of the association. Whether or not our courts will extend this to re-sellers (who also sell electricity to the owners/occupiers of the units in question), remains to be seen.

The first question was whether the Applicant’s rights were capable of protection by a spoliation order. The Respondent argued that the Applicant had a personal right against the Respondent to sell him water and electricity subject to the conclusion of a contract, and that such a personal right was not protected by the mandament van spolie.

The Court held that the rights of an occupier of a building to his water have long been protected by our courts by the mandament, irrespective of the contractual relationship between the parties. The Court was satisfied that the Applicant did not simply have a personal right against the Respondent.

The main issue that had to be determined was whether the Respondent’s conduct in limiting / refusing applicant to purchase pre-paid vouchers was lawful.

A township was established in respect of all the properties which formed members of the Respondent. One of the conditions of the township establishment was that all properties registered in the township included a condition registered on the title deed of the property, that whoever was the owner of the property at that time would be bound by the statutes and rules of the Respondent.

Source: Van Rooyen v Hillandale Homeowners Association [2015] JOL 33597 (FB) Schindlers Attorneys, Conveyancers & Notaries