13 November 2026
Sarah’s Socials | Post 13
At a glance: Can a homeowners' association switch off an owner's visitor-access app over unpaid levies? In Koko v Mont Tremblant Estate Homeowners Association, the Johannesburg High Court refused the owner's urgent application to restore it. On the application for leave to appeal the decision, the same Judge acknowledged that the courts are divided and sent the appeal directly to the Supreme Court of Appeal (SCA). To date the question remains undecided.
What happened in Mont Tremblant?
The Mont Tremblant Estate ("the estate") uses an app, which lets owners create access codes for their visitors, deliveries and school transport. The estate restricted the owner's use of the app because his levy account was in arrears, saying the estate’s governing documents allowed this.
Two facts mattered:
The owner's own biometric access was never switched off, and he came and went several times after the restriction.
He is a single parent, who relied on the app to grant a transport service access into the estate when taking his children to and from school. With the app restricted, the children had to be met at the gate.
The owner learned of the restriction on 13 May 2026 and demanded reinstatement within two hours. He launched an urgent application on 18 May 2026 and gave the estate one day to answer. The matter was heard on 3 June 2026 and judgment was given on 21 June 2026.
What is mandament van spolie?
Mandament van spolie is a long-standing legal remedy that restores possession to someone who has been unlawfully deprived of it. Its purpose is to stop people taking the law into their own hands. The court does not decide who is entitled to the thing. It simply puts things back as they were.
Why the High Court dismissed the application
The Judge found the matter was not urgent enough to justify giving the estate one day to respond. More importantly, the Judge held that the remedy protects possession, not access as such. The owner could still enter and exit the scheme. What was withdrawn was a tool for letting other people in, which the Judge described as a contractual or administrative facility rather than part of his possession of his home. In De Beer v Zimbali, an estate agent's access disc was deactivated, and the court held that this was mere access, not possession.
A fact was echoed in Koko as the Judge added that the position might have been different had the owner's own credentials been disabled, and that the decision did not mean the estate's conduct was necessarily lawful or justified. Complaints that the restriction was arbitrary or broke the estate's own rules belonged in other proceedings, such as the estate's internal procedures, a contractual claim, an interdict or a complaint to the Community Schemes Ombud Service (CSOS). The Judge also remarked that the owner could pay his arrears to have the restriction lifted. He was ordered to pay the estate's costs.
Why leave to appeal was granted
Leave to appeal is granted only where the appeal would have a reasonable prospect of success, or where there is some other compelling reason to hear it, such as conflicting judgments on the point.
The leave judgment is candid. The first judgment had relied on a summary of Bill v Waterfall Estate Home Owners Association. Having read the full judgment, the Judge accepted that Bill says considerably more. The court in the Bill held that access to an estate is, on the face of it, part of possessing the property inside it, that this extends to the access the owner's contractors had been given, and that it does not matter that the owner had another way in. The court also held that the association could not disable access as leverage to enforce its rules without going to court.
That challenges 2 pillars of the first judgment:
The reliance on the owner's intact biometric access.
The other is the view that the visitor facility was too remote from his possession.
The remark that he could simply pay his arrears also sits uneasily with Bill. The Judge further accepted that De Beer was a weaker foundation than first thought, since the estate agent in that case held no possessory interest in any property in the estate.
Even so, the Judge did not say the first decision was wrong, and still considers it correct. Binding SCA authority, particularly Eskom v Masinda, holds that rights that come purely from a contract are not protected by the spoliation remedy. But the Judge could not say the opposite view is not reasonably arguable, and is now more inclined to accept that a contractor given independent access is on the same footing as a school transport service.
The courts are divided. In Lenz v Blair Atholl, where the resident had agreed by contract that biometric access could be invalidated while levies were unpaid, the court found no unlawful deprivation of possession, and a KwaZulu-Natal Full Court took a similar view in McGregor v Selborne Park Body Corporate. Bill, Singh and Fisher v Body Corporate Misty Bay took the opposite approach. In Leggatt v Blair Atholl, another judge of the same court acknowledged that there is "no judicial consensus" on the issue.
Koko also goes a step further than any of those cases. In each of them, the resident's own credentials were disabled. Here it was a facility for letting others in, and as far as the Judge could establish, no reported decision has decided whether that kind of facility is part of an owner's possession of his home.
Why the SCA and not a Full Court?
The owner asked for his appeal to go to a Full Court of the Johannesburg division. The Judge sent it to the SCA instead, for four reasons.
The conflict runs across divisions, and only the SCA can resolve that.
The related question of switching off a resident's own access is already before the SCA in Leggatt.
The case concerns how far the SCA's own decision in Masinda reaches into digital access systems, and
The issue affects a very large number of people in gated communities, who need certainty whichever way it is decided.
The app has been restored. Will the appeal still go ahead?
On 28 June 2026, a week after judgment, the owner 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 if the decision would have no practical effect. The Judge nevertheless held that the matter should go up. Paying under protest is not giving up the right to appeal, and nothing stops the estate restricting the app again. Residents in this position will usually pay under protest long before an appeal is heard, so if that ended every case, the question would never be decided. The SCA will form its own view on this.
What Koko means for you
For trustees and directors, Koko is one judge's decision and it is going on appeal. The Judge expressly said that it does not mean the restriction was necessarily lawful, and the SCA may not accept the distinction between an owner's own access and a visitor facility. Know what your governing documents say, follow any notice or process they require, take advice before restricting any access facility for arrears, and keep a proper paper trail.
For managing agents, you are the ones pressing the buttons. Get a written instruction that identifies the rule or provision relied on.
For owners, the Judge treated payment under protest as not giving up the right to appeal. Do not assume you have no remedy, but do not assume you have a spoliation order either. That depends on what was switched off and on what your governing documents say.
Koko is an estate case. If you live in a sectional title scheme, the position will turn to your scheme's rules and the Sectional Titles Schemes Management Act 8 of 2011.
Cases referred to
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)
Bill v Waterfall Estate Home Owners Association NPC and Another (2019/21837) [2020] ZAGPJHC 81; [2020] 3 All SA 115 (GJ); 2020 (6) SA 145 (GJ) (5 March 2020)
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)
Eskom Holdings SOC Ltd v Masinda (1225/2018) [2019] ZASCA 98; 2019 (5) SA 386 (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
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.
