Browsing: Estate governance

Legal expert explains that the recent High Court judgment clarifies the difference between physical possession and digital visitor-management systems. The court held that suspending visitor-management functions is not unlawful spoliation as long as residents can still access their homes. HOAs are reminded that any digital restrictions must still comply with their constitutions, MOIs, conduct rules, and must follow fair procedures. Legal expert Johlene Wasserman has cautioned homeowners' associations (HOAs) not to misinterpret a recent High Court judgment, which clearly distinguishes between physically locking residents out of their homes and restricting access to digital visitor-management features. Responding to the decision in Koko v Mont Tremblant Estate Homeowners Association (2026/111982), the Director of Community Schemes and Compliance at Van Deventer Dowlath & Marx Incorporated said the judgment clarifies when spoliation applies. However, she emphasised that "HOAs should not misread this" and stressed that digital restrictions must still comply with an association's constitution, memorandum of incorporation (MOI), conduct rules, and the requirements of procedural fairness. "The judgment confirms that possession is a physical concept," Wasserman said. "If a resident can still enter and occupy their home, the law does not see the suspension of an estate app as spoliation. But HOAs should not misunderstand this. Digital restrictions must still comply with the HOA's constitution, rules, and requirements for fair process." This judgment comes as estates across South Africa are increasingly replacing physical access cards with biometrics, QR codes, and app-based visitor-management systems. Levy dispute results in urgent application The case began when the Mont Tremblant Estate Homeowners Association in Fourways, north of Johannesburg, disabled a resident's access app profile during a dispute over levies. This suspension meant the resident could no longer generate visitor codes for school transport, deliveries, contractors, or guests. However, his biometric credentials still worked, so he could enter, exit, and occupy his home without restriction. He took the matter to the High Court in Johannesburg urgently, arguing that disabling the app amounted to unlawful spoliation because it deprived him of possession. The Court disagreed, drawing a clear line between personal access to a home and digital visitor-management features. Court distinguishes earlier judgments Wasserman explained that the court compared this case with the well-known Singh v Mount Edgecombe Country Club Estate judgment, where residents were physically prevented from entering their homes after their access cards were revoked and their biometric credentials were disabled. "In Koko, that did not happen," she said. "The resident's personal access was never taken away; only his ability to authorise third-party visitors was affected." Instead, the court found this case more closely aligned with De Beer v Zimbali Estate Management Association (Pty) Ltd 2007 (3) SA 254 (N), where it was held that an estate access disc is simply a regulated means of entry, not a form of possession protected by the mandament van spolie. "The court concluded that Koko was much closer to De Beer than to Singh," Wasserman said. "A visitor-code facility that lets you admit third parties is an administrative service added to the property. It is not the practical way you occupy your own home, so it does not attract spoliation." The court therefore held that a homeowner's personal access to their property is part of possession protected by spoliation, while visitor-management functionality is seen as an administrative service, not an incident of possession. Judgment is not a licence for punitive action Wasserman pointed out that the court did not decide whether the HOA acted lawfully. It only found that spoliation was the wrong remedy for this situation. "Importantly, the court did not say the HOA acted lawfully. It only found that spoliation was not the right remedy," she said. "If an HOA acts outside its constitution, its conduct rules, its MOI, or fails to follow fair procedures, homeowners might have grounds to challenge that decision." She warned that the biggest risk after this judgment is that some HOAs may wrongly believe they are allowed to use digital access restrictions as a way to collect debts or as a disciplinary measure. "Some HOAs might think this judgment allows them to punish owners by cutting off app access. It does not. Access control cannot be used as a debt collection tool or as a shortcut for discipline." Urgent application dismissed According to Wasserman, the resident became aware of the restriction on 13 May but only brought the application on 18 May, giving the HOA just one day to respond. The court found that the urgency was self-created, dismissed the application, and ordered the resident to pay the costs, including the counsel's fees on Scale B. "The remedy was wrong, and the urgency was manufactured," Wasserman said. "But none of this gives HOAs a licence to use access control as a punitive tool. On this judgment, that question was expressly left open." Choosing the right forum Wasserman said the judgment is also an important reminder that homeowners need to carefully consider whether disputes should go to the courts or to the Community Schemes Ombud Service (CSOS). She referred to the Supreme Court of Appeal's decision in Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owner's Association ZASCA 155, which confirmed that the CSOS Act does not take away the High Court's jurisdiction and that homeowners may choose either forum. However, she cautioned that choosing the urgent court roll carries real risks. "CSOS is an accessible, cost-effective statutory forum set up to resolve routine governance and levy disputes," she said. "A person who rushes to the urgent roll over an administrative app restriction faces a tough hurdle, risks having the case dismissed for lack of urgency, and, as Parch warned and Koko showed, may end up paying the costs for choosing the wrong forum. Formal litigation, especially on an urgent basis, should always be the last resort." Technology cannot override governance Wasserman said the judgment is significant because it is one of the first to apply the legal distinction between possession and digital administration to app-based visitor-management systems. "Technology is changing how estates operate," she said. "This is one of the first judgments to apply the access-versus-possession line specifically to app-based visitor management. It shows trustees, directors, and managing agents where the legal line is, while reminding them that digital tools do not override governance." She advised residents whose access rights are affected to document any restriction immediately, check if their own access to the property has been affected, ask the HOA for written reasons, see whether proper procedures were followed, and get legal advice if needed. "Residents should not assume that digital restrictions are automatically lawful," she said. "This judgment simply clarifies which remedy applies but does not excuse HOAs from following governance rules." Conviction.co.za Get your news on the go. Click here to follow the Conviction WhatsApp channel.in Fo

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