In the case Body Corporate The Straight v Katisi (Case number 2023/031774 – unreported), Windell J in the High Court of South Africa (Gauteng Local Division, Johannesburg) handed down a judgment in January 2025, which offers some relief to beleaguered body corporates.
Windell J held that where an owner of a sectional title unit fails to pay the body corporate the amount levied by the body corporate in respect of electricity consumed by the owner, and where such amount due in respect of electricity is undisputed, the body corporate is entitled to cut off the supply of electricity to the relevant unit until such time as the amount outstanding by the owner in respect of electricity is paid to the body corporate.
A Tension Between Competing Issues
The judge distinguished this case from Lion Ridge Body Corporate v Alexander 2022 JDR 3057 (GJ) and Joseph v City of Johannesburg 2010 (4) SA 55 CC, and held that for the reason that a body corporate is obliged to pay the electricity supplier (in this case, Eskom) whether or not it has received from its Members payments in respect of electricity consumed in their respective units, there exists a “tension between competing issues” : on the one hand, the Constitutional rights of the owner as set out in the provisions of section 26 and 10 of the Constitution, respectively, and on the other hand, the obligation of the body corporate to pay its debts and to keep the lights on for all Members of the sectional title scheme.
He pointed out that body corporates are non-profit companies and are prohibited from deriving income from any resource other than levies imposed lawfully by the Trustees on the Members. Windell J held that it could not be the intention of the Constitution to protect an admitted delinquent payer to the detriment of the body corporate, and at the expense of all other owners.
Proper Notice Is Required
The Court went on to hold that prior to the disconnection of electricity, the body corporate must exercise procedural fairness in that proper notice must be given to end users, which might from time to time, one supposes, include tenants.
In this case, the body corporate concerned, in its notice of motion, included the request for an order allowing disconnection. Windell J noted this with an element of approval but did not state specifically that a Court application for such an order is required prior to the disconnection of electricity by a body corporate.
Notwithstanding, the ratio of the judgment is compelling and I would argue that it establishes a precedent that where an amount is owing to a body corporate, at least in respect of electricity, and such debt is conceded by the delinquent owner, and due notice has been given by the body corporate of the intention of the body corporate to cut off the electricity supplied to the relevant unit, that the body corporate is now lawfully entitled to take such action.
The Court did not discuss the issue of non-payment for other services rendered through the body corporate to members of a sectional title scheme.
Body corporates should perhaps use this judgment cautiously, at least for the next while as it is not improbable that a higher Court in due course shall be placed in a position to view similar circumstances. At the very least, a body corporate wishing to take advantage of the judgment should consult with its attorney and make sure that the circumstances match those of the judgment.