30 October 2026
Sarah’s Socials | Post 13
Quick read:
Can a homeowners’ association disable a resident’s visitor-access app due to unpaid levies? In Koko v Mont Tremblant Estate Homeowners Association, the High Court dismissed an urgent application to restore the function. Surprisingly, on application for leave to appeal, the judge acknowledged conflicting authorities and reconsidered the strength of the precedents relied upon. Leave to appeal was granted directly to the Supreme Court of Appeal (SCA), leaving the legal question open for further determination.
What happened in Koko v Mont Tremblant Estate Homeowners Association?
The Mont Tremblant Estate (“the estate”) uses an app called “MyEstateLife”, which allows residents to generate access codes for third parties, including visitors, delivery personnel and school transport providers. The estate restricted a resident’s use of this functionality on the grounds of arrear levies, maintaining that the governing documents of the estate authorised the restriction.
In Koko v Mont Tremblant Estate Homeowners Association the Johannesburg High Court considered this dispute and dismissed the resident’s application for restoration of the app functionality under the mandament van spolie, finding that the residents personal biometric access remained unaffected and that the app’s visitor-authorisation function was a separate service.
What is mandament van spolie?
In South African, mandament van spolie is a legal remedy that protects someone against being unlawfully deprived of possession of something they were using or controlling. However, it is specifically about restoring possession after unlawful deprivation, not deciding who is legally entitled to something in the first place.
The resident argued that the restriction was imposed without prior notice or explanation and that the estate had failed to follow its own procedures.
Two facts mattered a great deal:
The resident’s own biometric access to the estate was never switched off, and he came and went several times after the restriction.
The owner/resident is a single parent, and the app was how he authorised the transport service that takes his children to and from school. With the app restricted, the children had to be met at the gate.
The timeline was short:
The owner/resident learned of the restriction on 13 May 2026 and demanded reinstatement within two hours.
The owner/resident issued his urgent application on 18 May 2026 and gave the estate one day to answer.
The judge heard it on 3 June 2026 and gave judgment on 21 June 2026.
Why the High Court dismissed the visitor app access application
The application was dismissed on two grounds:
On urgency: The judge found that the owner/resident had not explained why a matter so urgent that the estate had one day to answer was not launched sooner. The owner/resident had also not shown that he would be left without a proper remedy later, since his own access was intact.
On the merits, The judge said the mandament van spolie protects possession, not access as such. It stops people taking the law into their own hands, but only where someone has been dispossessed of something they actually possessed.
In Singh v Mount Edgecombe, the estate cut off the residents' own cards and biometric access over arrears, and the court ordered them to be restored.
In De Beer v Zimbali Estate Management Association, an estate agent's access disc was switched off, and the court held that it amounted to access and not possession.
Koko was placed closer to De Beer. The resident could still get himself in and out, and what was withdrawn was a tool for getting other people in. The judge called that a contractual or administrative facility rather than part of his possession of his home.
The judge found that:
the position might well have been different if the estate had disabled his own credentials and further that the decision did not mean that the estate’s conduct was lawful or justified in the circumstances.
If the restriction was arbitrary, punitive or against the estate's own rules, those complaints belong in other proceedings: a contractual claim, an interdict, the estate's internal procedures, or a complaint to the Community Schemes Ombud Service (CSOS).
The judge also remarked that the owner/resident could simply pay his arrears and have the restriction lifted. A fact that was revisited at a later stage. Punitive costs were refused because his complaint was not frivolous, and he was ordered to pay the estate's costs on the ordinary scale, including counsel's costs.
Why was leave to appeal granted in the Koko case?
Before an appeal can proceed, the judge has to be satisfied either that another court would reasonably come to a different view, or that there is some other compelling reason for the appeal to be heard, insofar as conflicting judgments are concerned.
The leave judgment is candid on multiple aspects
In Bill v Waterfall Estate Home Owners Association Non-Profit Company (“NPC”), the court held that an estate could not rely on its governing documents to justify restricting access as a means of compelling payment of disputed penalties. Contractual provisions must be interpreted consistently with the principle against self-help. The appropriate remedy for unpaid amounts is to pursue lawful debt-recovery procedures, rather than unilaterally interfering with access rights.
The reported judgment supports that broader reading. In Bill v Waterfall Estate Home Owners Association NPC, the court held that access to an estate is an incident of possession of the property and that this protection extends to contractors accessing the estate in connection with the owner’s property. It also rejected the argument that alternative access was sufficient to defeat the claim, finding that the withdrawal of a particular access right could constitute dispossession. Crucially, the association could not rely on its governing documents to suspend access as leverage to enforce compliance without recourse to a court. Such provisions were unenforceable to the extent that they authorised self-help.
That hurts two parts of the first judgment. It had leaned on the fact that the resident's own biometric access was intact, and on treating the visitor facility as too remote from his possession.
The suggestion that the resident could simply pay his arrears also sits uneasily with Bill. The central issue is not whether the resident owes money, but whether the homeowners’ association may use the withdrawal of access-related functionality to compel payment without first pursuing lawful remedies. Allowing the restriction to stand because the resident could pay the debt risks overlooking the very principle Bill emphasised: an association may not take the law into its own hands, even where it has a legitimate claim against a resident.
The judge also accepted that De Beer is a less secure foundation than first treated. The applicant in that case was an estate agent employed by a property business, and she held no possessory interest in any property in the estate.
Even so, the judge did not say the first decision was wrong. The leave judgment still believes the answer was correct, and points to SCA decisions that support it (Masinda, Scholtz and Xsinet), which hold that rights that come purely from a contract do not get the protection of the mandament van spolie. The judge could not say that the opposite view is not reasonably arguable, and said that an independently authorised contractor now looks to be on the same footing as a school transport service.
Conflicting court judgments on restricting estate access over arrears
The leave judgment lists the split:
On one side it places Bill, Singh and Fisher (the latter of which is a Pretoria case about a body corporate that suspended an owner's access tag over arrears).
On the other it places Lenz (a 2016 Johannesburg decision about an estate where the resident had contractually agreed that biometric access would be invalid while levies were unpaid)
and McGregor (a 2021 KwaZulu-Natal full court decision, which the leave judgment describes as taking a similar view).
It also records that another judge of the same division had conceded, in the Leggatt case, that there is "no judicial consensus" on the point.
That is an important distinction. The case law suggests that prior contractual consent to an access restriction may affect the outcome, but it does not necessarily make the restriction lawful.
In Bill v Waterfall Estate Home Owners Association NPC, the court held that the relevant provisions of the memorandum of incorporation could not authorise the association to deprive the owner and his contractors of access as a means of enforcing compliance without recourse to a court. It distinguished Lenz v Blair Atholl Homeowners Association NPC, where the owner had expressly agreed to a provision permitting access cards to be deactivated while amounts remained unpaid.
The important qualification is that Bill did not treat consent as conclusive: it considered whether the contractual provision was enforceable in light of the constitutional principle against self-help and the relevant contractual fairness principles.
One more thing sets Koko apart. The leave judgment says that in Bill, Singh, Lenz and Leggatt it was the resident's own credentials that were disabled, and that in Koko they were not. In Koko, what was withdrawn was an app facility that lets the resident authorise other people to enter.
The leave judgment says that, as far as the judge could establish, no reported decision has decided whether that kind of facility is part of a resident's possession of his home.
A word on McGregor, because it sits close to Koko; the owner lets out units through his body corporate's visitor portal. The body corporate switched off his access card and his use of the portal over levy arrears. His own card access was restored before the hearing.
The majority held that the portal was not an incident of possession, that his rights were contractual, and that the owner/resident had had notice of the trustees' resolution for months. One judge dissented. The owner/resident held that the owner's right to use the portal flowed from ownership, and that nothing in the rules allowed access to be cut off as a blanket measure.
McGregor is the closest decision we have to Koko on the facts, owing to the fact that it concerned a visitor access facility and not the owner's own card.
Why the Koko case ended up at the SCA
The resident asked for his appeal to go to a Full Court of the Johannesburg division. The judge decided that was not enough, and gave four reasons:
The disagreement is not only inside the division. It runs between divisions too, and only the SCA can settle that.
The related question of whether switching off a resident's own biometric access is spoliation when another way into the estate exists is already before the SCA through the Leggatt case, and the Koko question is a direct extension of it.
The case is about how far an existing SCA decision (Masinda) reaches when the access system is digital.
This affects a very large number of people in gated communities, and certainty is needed nationally, whichever way it goes.
The visitor app was restored: Will the appeal still proceed?
On 28 June 2026, a week after judgment, the resident paid the amount demanded, under protest, and the app was restored. The money is held in an interest-bearing account while he disputes whether legal fees were properly included in his levy account.
An appeal can be dismissed when it would have no practical effect. The judge nevertheless held that the matter should go up, for these reasons. Payment under protest is not giving up the right to appeal.
The estate is not stopped from restricting the app again if new arrears arise. Residents whose access has been restricted will often pay the disputed amount under protest long before their appeal is heard, so if that always ended the case, the question dividing the courts would never get decided. The SCA will decide for itself whether it still wants to hear the matter.
The SCA overriding decision
As the leave judgment frames it, the central question is whether an app-based facility that lets a resident authorise others to enter the estate is part of the resident's possession of his home, or a contractual or administrative service the association can switch off.
Wider questions are raised:
Does it matter that the resident's own access still works?
Does the SCA's Masinda decision, about rights that come purely from contract, apply to digital access systems in estates?
Can an association switch off access to force payment, or must it first go to court?
The estate may also argue that the resident never asked for third-party access in his original court papers and made that case in reply.
The judge said the first decision did not rest on that point and that the appeal court is better placed to deal with it, so it remains open.
What the Koko case means for trustees, managing agents and owners
Trustees and directors: Koko is a single-judge decision that is going on appeal, and the judge expressly stated that her conclusion does not mean the restriction was lawful. Although disabling a visitor-access facility differs from blocking the resident’s own access, the Supreme Court of Appeal may reject that distinction, particularly in light of Bill and the principle against self-help.
know what your governing documents say and whether they require notice or a process first. Take advice before restricting any access facility for arrears, and keep a proper paper trail.
Managing agents: you are the ones pressing the buttons. Get a written instruction from the trustees that identifies the rule or provision relied on. A bare "switch them off, they are in arrears" is the situation the courts keep coming back to.
Owners: if an access facility is switched off, paying under protest while you dispute the account is a recognised route, and the judge treated it as preserving your position. Do not assume you have no remedy. Do not assume you have a spoliation order either, because that depends on what was switched off and on what your governing documents say.
Whether you live in an homeowners association or non-profit company or a sectional title scheme also matters. Koko is an estate case. McGregor dealt with a body corporate in a sectional title estate and was a split decision. If you are in a sectional title scheme, the position turns on your rules and the Sectional Titles Schemes Management Act 8 of 2011.
List of articles cited:
Koko v Mont Tremblant Estate Homeowners Association (2026/111982) [2026] ZAGPJHC 695 (21 June 2026)
Koko v Mont Tremblant Estate Homeowners Association (Application for Leave to Appeal) (2026/111982) [2026] ZAGPJHC 1037 (8 September 2026)
Singh v Mount Edgecombe Country Club Estate Management Association 2016 (5) SA 134 (KZD)
De Beer v Zimbali Estate Management Association (Pty) Ltd 2007 (3) SA 254 (N)
Bill v Waterfall Estate Home Owners Association NPC and Another 2019 (6) BCLR 711 (CC)
Eskom Holdings SOC Limited v Masinda (1225/2018) [2019] ZASCA 98
FirstRand Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others 2008 (2) SA 503
(SCA)
Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA).
Fisher v Body Corporate Misty Bay 2012 (4) SA 215 (GNP)
Lenz v Blair Atholl Homeowners Association NPC GJ 2016/36336, unreported judgment dated 11
April 2016 (Nicholls J, as she then was)
McGregor v Selborne Park Body Corporate and Others (AR224/2020) [2021] ZAKZPHC 87 (8
October 2021)
Leggatt and Another v Blair Atholl Home Owners Association NPC (130295/2023) [2024] ZAGPJHC
1753 (22 February 2024)
If you would like more information on the above, please reach out to us at info@tvdmconsultants.com or call 061 536 3138.
About the author
Sarah Sydenham is a community schemes consultant at TVDM Consultants.
Sarah Sydenham, an admitted attorney, is a Community Schemes Consultants at TVDM Consultants. Sarah has a well-rounded legal background and a passion for community schemes.
Learn more about Sarah Sydenham.
