- A Centurion couple put up a palisade fence and gate across common property, even though the body corporate refused to approve their proposal.
- The High Court in Pretoria ruled that concerns about their children’s safety did not justify enclosing shared property without proper authorisation.
- The couple must take down the structures within 30 days and are banned from intimidating residents, visitors or workers who need access to the area.
A Centurion couple who fenced off shared property to create a larger yard for their children must remove the structure after the High Court in Pretoria found they had no legal right to claim the space for their exclusive use.
The couple put up a palisade fence and gate across visitors’ parking bays, even though the body corporate refused to approve their plan. This led to legal action to reclaim the common property.
Acting Judge Benson ruled that the couple’s concerns about their children’s safety did not justify taking over property that belonged to all the owners, especially since the body corporate offered an alternative that would secure their unit without taking over the shared area.
Couple proceeded despite owners’ refusal
The dispute began at the Inge-Le sectional title scheme in Clubview, Centurion, where Thabang Mamaru and Takatso Faith Ntlou own a unit that opens onto a paved area used by vehicles. The couple wanted to close off the space between their unit and the neighbouring unit so their two young children could play safely outside and so they could keep a dog in the yard.
Mamaru first asked the trustees in February 2023 for permission to put up a temporary fence. The trustees were willing to let the couple secure their unit, but suggested building a wall or gate from the corner of the unit to the boundary wall, without including the common property.
Mamaru turned down that option because he wanted to enclose the bigger area, including two visitors’ parking bays. He said the seller and estate agent told him the space was meant for his unit’s exclusive use. He also pointed to carports and other structures built on common property elsewhere in the scheme.
The dispute was sent to the Community Schemes Ombud Service, but an adjudicator dismissed the application in May 2024, saying she did not have the power under the law to grant the relief they wanted.
After that, the owners considered two proposals at a special general meeting in July 2024, but neither one got the 75 percent support needed. A later round-robin vote also failed to approve either option.
Even without approval, Mamaru warned in November 2024 that he would go ahead with the enclosure anyway. On 7 December 2024, the couple put up a steel palisade fence and gate spanning the area between their unit and the boundary wall. The structure enclosed the visitors’ parking bays and stormwater drainage run-off, which had been built at the owners’ expense.
The body corporate then went to the High Court, asking for an order to make the couple remove the structures, ban their exclusive use of the common property and stop them from intimidating anyone who needed access to the area.
High Court rejects jurisdiction challenge
The couple opposed the application, arguing that the High Court should not hear the dispute because it fell within the jurisdiction of the Community Schemes Ombud Service. They also questioned the trustees’ authority and whether the body corporate could ask for an order against intimidation.
Judge Benson dismissed these objections, relying on a Supreme Court of Appeal ruling in Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owners’ Association. That decision confirmed that the CSOS Act does not prevent the High Court from hearing community scheme disputes or require people to go to CSOS before going to court.
The judge pointed out that the body corporate had already referred the dispute to CSOS, which declined to grant an order. The couple also made it clear they planned to go ahead no matter what the scheme’s approval process decided.
The court found that the trustees had the power to take the case to court to protect the common property. A resolution signed by all five trustees later confirmed the legal action after the couple challenged the authority of the body corporate’s attorneys.
Children’s safety did not justify taking over common property
On the main issues, the judge found that the body corporate met the requirements for a final interdict: a clear right, an injury that had happened or was likely to happen, and no other satisfactory remedy.
The registered sectional plan showed the disputed area as common property, and there was no exclusive-use right registered for the couple’s unit. The judge said exclusive-use rights could only be created through the proper legal procedures, not through an informal arrangement with a seller or estate agent.
The couple’s argument about other structures in the complex also failed. The judge found that even if another owner had done something irregular, it did not give this couple the right to take over common property without the necessary approval.
Judge Benson said the parents’ concerns about their children’s safety were understandable. However, the trustees offered an alternative that would let the family secure their unit without closing off the shared area.
“The children’s interests do not license or justify taking over property that belongs to all the owners in the scheme,” the judge said.
The court also rejected the idea that the gate did not interfere with other residents’ rights just because it was left unlocked. Its position across the common property meant that other owners and visitors had to pass through what had become the couple’s yard to use the area, including the visitors’ parking bays.
Threats justified protection for residents and workers
The judge also found enough evidence to justify protection against intimidation. In messages to residents and correspondence with the trustees, Mamaru challenged them to take legal action and warned that anyone who removed his fence would have to answer to him.
The body corporate’s caretaker and three general workers said Mamaru had threatened to find out where they lived and destroy their homes if they removed the fence. The caretaker later confirmed this under oath.
The judge found that Mamaru’s response did not raise a real dispute about whether he made the threats. The threats had not been withdrawn, and his ongoing insistence on keeping the enclosure made it likely that the behaviour would continue.
The court ordered Mamaru and Ntlou to remove the fence, gate and any other structures from the common property within 30 days and restore the area to how it was before. If they did not comply, the body corporate could remove the structures and recover the reasonable costs from them.
The couple were also forbidden from using the common property exclusively or putting up more structures without authorisation. The order also bans them from intimidating or threatening owners, occupiers, visitors, employees or contractors who need access to the area or are following lawful instructions about it.
They were also ordered to pay the body corporate’s legal costs together, including counsel’s fees where applicable, to be taxed on Scale B.
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