SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 1073/17
In the matter between:

NORBERT KETZER

APPELLANT

and

GARDENS LODGE BODY CORPORATE

RESPONDENT

Neutral citation: Ketzer v Gardens Lodge Body Corporate (1073/17) [2019]
15 ZASCA (20 March 2019)

Coram:
Navsa AP, Tshiqi and Swain JJA and Carelse and Matojane AJJA
Heard:
20 February 2019

Delivered:
20 March 2019

Summary: Rule 14(1) of the magistrates’ court rules – interest rightly disputed –
calculation of capital amount claimed – inextricably linked to interest claimed –
summary judgment refused.

________
ORDER

___

On appeal from: Western Cape Division of the High Court, Cape Town (Nuku AJ
and Fortuin J concurring, sitting as the Court of first instance):
1 The appeal is upheld and no order is made as to costs.
2 The order of the court below is set aside and substituted as follows:
‘1. The appeal is upheld and no order is made as to costs.
2. The order of the Magistrates’ Court is set aside and substituted as follows:
“a. The application for summary judgment is refused.
b. The defendant is granted leave to defend.
c. No order is made as to costs.”’

_______________________
JUDGMENT

____
Carelse AJA (Navsa, Tshiqi and Swain JJA and Matojane AJ):

[1] The issue in this case is whether the Magistrates’ Court, Cape Town, should
have granted summary judgment in favour of the respondent, the Gardens Lodge
Body Corporate (the Body Corporate), incorporated in terms of s 36 of the Sectional
Titles Act 95 of 1986, against the appellant, Mr Norbert Ketzer, in an amount of
R233 383.52, with interest at the rate of 34,8 per cent per annum compounded
monthly plus costs on a scale as between attorney and client as well as collection
commission. The claim was based on ‘outstanding levies and/or interest and/or
costs’, in relation to four units within the sectional title scheme administered by the
Body Corporate. At the outset, it is necessary to record that Mr Ketzer represented
himself throughout the proceedings culminating in the appeal and was responsible
for the drafting of his pleadings.

[2] Mr Ketzer opposed an application for summary judgment by the Body
Corporate. The answering affidavit is somewhat obscure, but, at the heart of it, is a
complaint that the claim, formulated as set out in the preceding paragraph, included a

claim for interest at the exorbitant rate of 38,4 per cent, impermissible charges for
‘legal monitoring’ and collection charges. Mr Ketzer complained that the interest
charged was not premised on the rules of the Body Corporate, nor was it agreed.
Four schedules were attached to the Body Corporate’s particulars of claim from
which it appears that in successive months, the amount claimed in respect of
outstanding levies included interest and the other charges. Simply put, interest was
capitalised and the capital amount shown as the opening balance in each successive
month included both the interest and the other charges. The total amount of
R233 380.52 claimed, thus comprised these constituent parts.

[3] The opposing affidavit by Mr Ketzer, that is in respect of the capital amount
that might have been due and payable, put up no viable defence in relation to levies
outstanding. The Magistrate, in adjudicating the application for summary judgment,
had regard to Mr Ketzer’s contentions in relation to a lack of authority on the part of
the Body Corporate to claim the amounts in question, the substance of which, for
present purposes, it is not necessary to have regard to. He did, however, raise
questions about the rate of interest that the Body Corporate was entitled to charge on
overdue amounts. More about that later. The Magistrate took the view that the claim
for outstanding levies for the period September 2012 until July 2014, in respect of the
four units, was ‘a very simple, straightforward claim’. The Magistrate was satisfied
that Mr Ketzer had failed to show that he had a bona fide defence. Consequently, an
order was made in the terms set out at the commencement of this judgment.

[4] In adjudicating an appeal by Mr Ketzer, the Western Cape Division of the High
Court, Cape Town, (Nuku AJ with Fortuin J concurring) disregarded the contents of a
document obtained by Mr Ketzer from the Registrar of Deeds which appears to be a
unanimous resolution of the trustees of the Body Corporate, circumscribing the rate
of interest and the charges that may be imposed on unit holders. That resolution,
limited the recovery of interest on overdue amounts to the prime rate of the Body
Corporate’s bank plus two per cent. The high court rejected Mr Ketzer’s reliance on
the resolution, classifying it as inadmissible hearsay evidence. The high court also
rejected Mr Ketzer’s alleged counter-claim as well as his attempt to have to resort to
arbitration which he alleged was provided for in the rules of the Body Corporate. The
high court went on to state that none of the defences raised by him had any merit

and dismissed the appeal with costs.

[5] Before us, counsel on behalf of the Body Corporate was constrained to
concede that the rejection of the resolution could not be justified.1 In heads of
argument on behalf of the Body Corporate, the following is stated:
‘If this Court is of the view that Ketzer’s opposing affidavit, benevolently considered, raises a
dispute with regard to the applicable interest rate, i.e. a rate exceeding prime plus 2%, which
could possibly be resolved by way of arbitration, it is respectfully submitted that:
(1)
Ketzer does not dispute his liability for levies in respect of his section, garage and/or
parking bays;
(2)
Ketzer does not dispute his liability for the payment of electricity charges raised;
(3)
Ketzer concedes that he is liable for payment of interest calculated at the prime rate
plus 2%.’
It was submitted on behalf of the Body Corporate that, in the event of this court being
inclined to hold that the interest rate is in dispute, it ought, in terms of Rule 14(6)(b) of
the Magistrates’ Court Rules, to find that the Magistrates’ Court should have given
judgment in relation to that part of the claim which was not disputed.

[6] Before us, the Body Corporate presented for consideration, a recalculation
based on the prime bank rate plus two per cent which, it was submitted, amounted to
a total of R184 103.07 being due rather than the R233 380.52 that was initially
claimed.

[7] The offer to recalculate is, regrettably, too late. Mr Ketzer cannot, at this late
stage, contest the recalculation. It is not clear to us, nor should it have been to the
Magistrate or to the high court, that the interest and the other charges could be
disentangled from the capital amounts. It is clear, however, that the interest claimed
was disputed on bona fide grounds. The rate is patently exorbitant and disputed. If
regard is had to the unanimous resolution presented to the court below, the
compelling conclusion is that Mr Ketzer justifiably disputed the rate of interest.

[8] Having regard to the manner in which the Body Corporate formulated its case
by including, within its capital claim, the justifiably disputed interest rate and

1 See D R Harms Civil Procedure in the Superior Courts SI 54 at B-222.

ostensibly questionable charges, this is not an instance in which a court would be
justified in giving summary judgment for part of the amount claimed.2 How, one might
rightly ask, in these circumstances, could a court determine an amount which it could
confidently say was owing.

[9] It follows that the appeal should succeed. Mr Ketzer, who appeared personally
before us, was urged to find a means of arriving at a mutually satisfactory method of
calculating what was indeed owing in relation to arrear levies and to make payment
of the amount so agreed. He undertook to make every effort to do so. Since he
appeared personally, no costs in the conventional sense were incurred by him.

[10] The following order is made.
1. The appeal is upheld and no order is made as to costs.
2. The order of the court below is set aside and substituted as follows:
‘1. The appeal is upheld and no order is made as to costs.
2. The order of the Magistrates’ Court is set aside and substituted as follows:
“a. The application for summary judgment is refused.
b. The defendant is granted leave to defend.
c. No order is made as to costs.”’

___________________

Z Carelse
Acting Judge of Appeal

2 See in this regard D E van Loggerenberg Erasmus Superior court Practice SI 6 Vol 2 at D1-
418.

Appearances

For the Appellants:

Norbert Ketzer

For the Respondent:

H von Lieres
Instructed by:

Von Lieres, Cooper, Barlow & Hangone
c/o Rossouws Attorneys, Bloemfontein