- The High Court in Pretoria ordered the Carlswald North Lifestyle Estate Home Owners Association to restore Mariska du Plessis’ biometric access.
- Acting Judge D van den Bogert found that the association used unlawful self-help while levy proceedings were still ongoing.
- The court stated that biometric access is part of possessing residential property and is protected by the mandament van spolie.
A homeowners’ association cannot disable a resident’s biometric access while a levy dispute is still being decided in court, according to the High Court in Pretoria.
Acting Judge D van den Bogert ordered the Carlswald North Lifestyle Estate Home Owners Association to immediately restore the fingerprint and facial recognition access of Mariska du Plessis and her tenants.
The judge found that the association unlawfully deprived them of a right connected to their property. The association was also ordered to pay the costs of the application.
Homeowner challenged biometric suspension
Du Plessis owns two properties in the Carlswald North Lifestyle Estate in Midrand. One of these has had tenants since about March 2020.
According to evidence presented in court, the tenants had uninterrupted biometric access to the estate until November 7, 2025, when the homeowners’ association revoked their fingerprint and facial recognition permissions.
This decision forced the tenants to enter through the visitors’ entrance, subjecting them to extra screening and delays not experienced by other residents.
Du Plessis argued that neither she nor her tenants agreed to the removal of their biometric access and that the association acted without a court order.
She claimed that this action seriously interfered with their regular use and enjoyment of the property and amounted to unlawful spoliation.
HOA relied on levy rules
The homeowners’ association defended its actions by citing provisions in its Memorandum of Incorporation, which allowed it to suspend biometric access when members breached their obligations, including failure to pay levies.
It also referenced notices previously sent to residents, stating that members whose accounts were over 30 days past due would lose biometric access and that other amenities like the gym, clubhouse, and tennis courts would also be suspended.
The association argued that the dispute was contractual and that Du Plessis and her tenants had not lost access to the estate, as they could still enter through the visitors’ gate using the ClickOn system.
Pending levy case became decisive
A key aspect of the case was that the homeowners’ association had already begun proceedings in the Randburg Magistrate’s Court to recover alleged outstanding levies.
Du Plessis disputed her liability and the amount claimed. She challenged the proceedings and later filed a plea after the magistrate dismissed an objection, meaning the levy dispute was unresolved when the association blocked the biometric access.
Judge Van den Bogert noted that this was significant because the association could not decide for itself that Du Plessis was in default while another court was considering the dispute.
“It is premature for the respondent to claim a breach or default while that court action is pending,” the judge said.
He concluded that by revoking biometric access before the dispute was settled, “the respondent committed a breach of the contractual relationship.”
Court rejects self-help
The court found that allowing the homeowners’ association to suspend biometric access solely because it believed levies were owed would enable it to act as judge and enforcer of its own claims.
Referring to previous authority, Judge Van den Bogert supported the idea that such a situation would give the association the power to determine the outcome of a dispute and enforce its own decision.
“The first respondent thus becomes a judge in its own cause,” the judgment noted, adding that such behaviour amounts to unlawful self-help.
Biometric access protected by law
The central legal question was whether biometric access is merely a contractual benefit or a right related to possessing residential property.
Judge Van den Bogert concluded that biometric access is part of possession because it is the recognised way for residents to enter their homes.
Quoting previous authority, the judge stated, “The applicant’s right to biometric access to the estate, which is linked to the property, is an incident of possession of the property.”
He further noted that disabling biometric access constituted dispossession, even if another way to enter the estate was available.
Visitors’ gate no answer
The homeowners’ association claimed that no spoliation occurred because Du Plessis and her tenants could still enter through the visitors’ entrance. The court rejected this argument.
Judge Van den Bogert held that “the notion that there might be alternative access through the visitors’ entrance is immaterial” because what had been removed was the established right to biometric access linked to the property itself.
The judge also distinguished this case from a Supreme Court of Appeal decision, stating that biometric access fundamentally differs from electrical service because it is tied to possession of the home, not a separate service.
Amenities not covered
While granting the spoliation order, the court refused to restore access to shared facilities like the gym, squash courts, tennis courts, and clubhouse.
Judge Van den Bogert stated that those amenities are not part of possessing residential property and thus cannot be protected through mandament van spolie, although he noted that other legal remedies might be available to contest those restrictions.
Order
The High Court ordered the Carlswald North Lifestyle Estate Home Owners Association to immediately restore biometric access, including fingerprint and facial recognition access, for Du Plessis and her tenants.
The association was also ordered to pay the costs of the application, including the costs of counsel on Scale B.
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