Payment provisions

In many cases where a sectional title unit holder cannot sell his unit when the body corporate won't issue a clearance certificate because he owes money, the unit holder will pay under protest, get the clearance certificate, and then claim the payment back (the 'protest payment' route). Section s 15B(3)(a)(i)(aa) of the Sectional Titles Act 95 of 1986 provides another way and allows for the unit holder to provide for payment (the 'payment provision' route) rather than actually pay and reclaim.

Can the body corporate refuse? No, because where the payment provision is objectively reasonable and the unit holder's dispute is bona fide, the law obliges the body corporate to be satisfied.
'A discretion must be exercised according to the rules of reason and justice, not according to private opinion. It must not be arbitrary, vague and fanciful but legal and regular…'

It is also worth bearing in mind that, apart from being illogical, clumsy, costly and time-consuming, protest payments could result in unnecessary litigation. In the event of litigation an advantage of the payment provision route is that the onus will rest on the body corporate to show that it is entitled to the disputed amount, rather than the unit holder who pays under protest. The article concludes that, for the above and other reasons, payment provision is therefore an equally valid and otherwise better route than protest payment.

Full article in De Rebus