Judge goes off on body corporate lawyers for bringing R18k claim before high court

Consumer advocates have long complained of the high courts being used to collect relatively trivial amounts of money. Here’s more evidence of it. A judge in the Johannesburg High Court went off on lawyers for the Centenario Body Corporate for bringing a claim of under R18 000 before the court, despite evidence the homeowner had made payments in terms of an acknowledgment of debt (AOD).

The homeowner later claimed the payments were being used for other things than debt repayment, and that several illegitimate charges were being made to his account, chief among these being payments to the body corporate’s lawyers. There also appeared to be illegitimate water charges made to the account. There is a body of case law dealing with the limits of body corporates to lawfully charge homeowners.

In this case, the homeowner signed an AOD. “The relatively small amount claimed in the context of high court costs of process is cause for concern. Prima facie, I accept that the claiming of an amount of little more than R17 000 in the high court is uneconomical when reference is had to costs,” ruled Judge Denise Fisher.

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The body corporate’s lawyers appear to be in control of the debt collection process, which arguably meant it had abdicated its statutory function to manage the complex in a fair and proper manner. The attorneys in the case are Schüler Heerschop Pienaar who, the judge noted, regularly set down matters for summary judgment in the court. A summary judgment is where there is no genuine dispute of facts and one party claims it is entitled to a win without having to go to trial.

It was unclear to the court who gave directions to recover debts by way of litigation – the body corporate or the lawyers. The approach adopted by the body corporate appears to be to enlist the assistance of the attorneys in drafting AODs, with the attorneys then adding their own charges and then approaching the high court to collect on these charges.

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