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WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience:  L.LB (UOVS)
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An owner of a property in our complex has not paid his levies.(R15000

Customer Question

An owner of a property in our complex has not paid his levies.(R15000 outstanding) He does not live in the complex. His additions to the house also do not comply to municipal laws. Can our HOA pass a resolution stating that any resident/ owner in contravention of any national, municipal or our own HOA laws will/ can have their wheels clamped ?
Submitted: 2 years ago.
Category: South Africa Law
Expert:  WCLawyer replied 2 years ago.
Good morning. You can, potentially, make any rule that does not contravene the Constitution or any other act. So, potentially, such a rule may be valid, provided that the rule is made in accordance with the constitution/memorandum of incorporation of the HOA. In other words, where the constitution/MOI makes provision for rules to be amended or added or removed, the process to have those rules added must be followed to the letter. Additionally, a rule that is arbitrary and does not allow for the person who is going to be affected by the implementation of it to respond, will be against the rules of administration of justice and would be invalid. So, in other words, if your rule is structured in such a way that the decision to clamp the wheels can be done by the board of directors/trustees based on their decision that the rule has been breached, that would be invalid. There must be a mechanism whereby the offender is awarded an opportunity to state his case.Furthermore, if the sanction (the clamping of the wheels) is 'overkill' (that is, there is a less intrusive way to enforce the rule), the rule will also be invalid. And I think that, if you are going to fall short of administrative justice principles, that this is where you are going to fall short. In my opinion, you will do better by implementing a fine system and if one of the owners do not pay, to sue him for payment through the courts.I know that this is probably not the answer that you have hoped for, however, I hope that you can still get some value out of it. I try my best to provide you with a legally sound and accurate answer and however much it pains me, it is not always good news. Trust me when I say that I wish I could provide you with a more optimistic answer. If you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service,kindly rate it positively
Customer: replied 2 years ago.
(I understand that the HOA legal docs/ articles need to be very specific) ... in the following Van Rooyen v Hillandale Homeowners Association (1603/2014) [2014] ZAFSHC 226 (11 December 2014) and In two recent cases decided in the Supreme Court of Appeal (SCA), namely, Willow Waters Homeowners Association (Pty) Limited v KOKA NO and others [2015] JOL 32760 (SCA) and Cowin NO v Kyalami Estate Homeowners Association (499/2013) [2014] ZASCA 221, • - "HOAs now enjoy the same level of protection afforded to municipalities and body corporates in respect of outstanding debts and may withhold clearance certificates until such time that the arrear levies have been paid" (end quote)
So based on the above recent court rulings .....municipalities do not go to the courts to find relief. .....They just cancel/cut off services and HOAs are able to withhold services ...if its in the constitution or amended resolutionsAm I on the right track ? (THANKS!)
Expert:  WCLawyer replied 2 years ago.
I think you are over simplifying it. Let me explain. Before a property can be sold, the Municipality or Body Corporate or HOA needs to issue a certificate that state that all the levies/rates and taxes have been paid. So, obviously, they cannot issue such a certificate unless levies have factually been paid. They cannot be forced to issue clearance certificates (there are certain exemptions, but this is not relevant here) in order for the transfer to be processed unless the arrears are paid.This, however, still does not give the Municipality a guarantee that the money will be paid. If they want to enforce payment through, for instance, a writ of execution, emoluments attachment orders or garnishee orders, they still need to go to court in order to obtain a judgment. Similarly, there are case law that prohibits a Municipality from just cutting off services without notice. There is a process that the Municipality needs to follow before they can cut off the electricity or the water or whatever. It entails that notice be given to the person who is in arrears and allowing him to declare a dispute. If there is a dispute, then the Municipality is not allowed to cut off the electricity until the dispute has been dealt with. That dispute is normally dealt with at court, through the Municipality issuing summons and the rate payer defending that summons.So, essentially, the issue surrounding clearance certificates and the issue surrounding the collection of outstanding levies is two different issues.