Gert van Rooyen (the applicant) leased a property within an estate. The owner of the property was a member of the Hillandale Homeowners Association (the respondent). The respondent purchased water and electricity in bulk and resold the services to the members of the respondent.
The rules of the estate stated that 'no electricity shall be provided or sold to any occupier or owner of any erf in respect of which levy payments are outstanding for a period of 60 days or longer, until such time as all outstanding levy payments are paid in full'.
The applicant had unpaid penalty levies on its account, which remained unpaid. Because of this, the respondent refused and/or limited the ability of the applicant to purchase pre-paid electricity units. The applicant therefore instituted an application for spoliation to restore the electricity services.
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 that 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 the statutes and rules of the respondent would bind whoever was the owner of the property at that time.
The court upheld the freedom of contract, that parties are left to make their own agreements, and whatever the agreements are, the law will enforce them provided they contain nothing illegal or immoral or against public policy.
The court held that in this case, the applicant had the choice of not renting the property if he was of the view that the applicable rules were inconsistent with his rights. The respondent's conduct was lawful, as it acted within the rules and the agreement it entered into with the property owner. The conduct of the respondent was therefore lawful and the spoliation application was dismissed.
The mandament van spolie can be used to restore supply of services to a property if the services are restricted unlawfully. The restriction will not be unlawful where an owner (or tenant) has agreed to be bound to the rules of a Home Owners Association, as a condition of the title, and the rules of the Home Owners Association provide a mechanism for the restriction of services.
