CSOS4861GP23

ADJUDICATION ORDER IN TERMS OF SECTION 54

OF THE COMMUNITY SCHEMES OMBUD SERVICE ACT NO.9 OF 2011

Reference Number: CSOS 4861GP23

In the matter between:

ANTON VAN NIEKERK

(duly represented herein by Willem Jacobus Landman) APPLICANT

and

TRUSTEES OF WITFIELD RIDGE BODY CORPORATE RESPONDENT

ADJUDICATION ORDER

EXECUTIVE SUMMARY

 Relief applied for in terms of the CSOS Act:

1. This is an urgent spoliation application brought by the Applicant against the

Respondent in terms of:

Section 39 (7) (b) – any other order proposed by the Chief Ombud.

1. That the Respondent be urgently ordered and compelled to:

1.1. Unblock the prepaid electricity supply meters to the sections
owned by the Applicant at the Respondent scheme, in order that
the occupants of the sections can purchase electricity to the

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sections, being unit numbers 109, 135, 141, 144, 150, 153, 154
and 160.

 Date Adjudication conducted:

10 August 2023.

 Name of the Adjudicator:

Karen Bleijs.

 Order:
The Applicant’s First Prayer is granted, whilst its Second Prayer is dismissed for the
reasons as set out hereunder.

INTRODUCTION

1. The Applicant is ANTON VAN NIEKERK, duly represented herein by Willem

Jacobus Landman of Barzani 53 (Pty)Ltd in terms of a written mandate (“the
Applicant”), the registered owner of unit numbers 109, 135, 141, 144, 150, 153, 154
and 160 at the Respondent scheme, which is situated at Biddulph Street, Whitfield
Extension 45, Boksburg, Johannesburg.

2. The Respondent is WITFIELD RIDGE BODY CORPORATE (“the Respondent”), which

is a body corporate as contemplated in section 2 of the Sectional Titles Schemes
Management Act No. 8 of 2011 (“the STSMA”) and a community scheme as defined
in the Community Schemes Ombud Service Act 9 of 2011 (“the CSOS Act”).

3. This is an application for dispute resolution in terms of Section 38 of the Community

Schemes Ombud Service Act No.9 of 2011. The application was made in the
prescribed form and lodged with the Gauteng Provincial Ombud Office via Email.

4. The application included a statement of case, which set out the relief sought by the
Applicant.

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5. This application is before me as one of urgency, a result of a referral sent by the

Gauteng Provincial Ombud in terms of section 48 of the Act.

6. The Respondent was sent a letter via its Managing Agent, De Lucia Properties, on
the 7th of August 2023 by the Gauteng Provincial Ombud, referring to the High Court
decision in the case of Queensgate Body Corporate v Claesen (A3076/98) [1998]
ZAGPHC 1(26 November 1999 placing on record that the act of disconnecting a
person’s electricity, act of disconnecting an owner’s electricity.

7. In this instance the Respondent did, in fact, block the Respondent and the occupants of
his units from purchasing prepaid electricity from the prepaid electricity supply meters
without a Court Order authorising it to do so.

8. The Respondent was given until close of business on the 8 th of August 2023 in which
to reconnect/reinstate the electricity supply to the Applicant’s units/reinstate the
Respondent/its tenants ability to purchase prepaid electricity for the prepaid electricity
supply meters and activate the amount of prepaid electricity purchased on the meter,
failing which the application would be escalated to adjudication on an urgent basis.

9. No reply was received from the Respondent, and the Applicant and the occupant of its
sections remained unable to activate electricity on the prepaid electricity supply meters
for the units in question, and consequently unable to access or use electricity within
the various sections.

10. On Thursday the 10th of August 2023, the CSOS had still not received an answer
from the Respondents, and the prepaid meters to the sections remained blocked,
consequently, the matter was referred to me to adjudicate.

11. This matter is adjudicated in terms of the CSOS Act and Practice Directive on Dispute
Resolution, 2019 (as amended) and more specifically the amended Practice Directive
dated 23 June 2020 which provides under paragraph 8.2: “Adjudications will be conducted

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on the papers filed by the parties and any further written submissions, documents and information as
requested by the appointed Adjudicator”.

12. The matter was adjudicated by me on the 10th of August 2023.

13. An order is now determined.

PRELIMINARY ISSUES

14. No preliminary issues were raised.

RELEVANT STATUTORY PROVISIONS

15. Section 1 of the CSOS Act defines-

 "Community scheme" as “any scheme or arrangement in terms of which there is shared

use of and responsibility for parts of land and buildings, including but not limited to a sectional
titles development scheme, a share block company, a home or property owner's association,
however constituted, established to administer a property development, a housing scheme for
retired persons, and a housing cooperative and "scheme" has the same meaning”.

 "dispute" as “a dispute in regard to the administration of a community scheme between

persons who have a material interest in that scheme, of which one of the parties is the
association, occupier or owner, acting individually or jointly”.

16. Section 38 of the CSOS Act provides-

“Any person may make an application if such person is a party to or affected materially by a
dispute”.

17. Section 45(1) provides-

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“The Ombud has a discretion to grant or deny permission to amend the application or to grant
permission subject to specified conditions at any time before the Ombud refers the application
to an adjudicator”.

18. Section 47 provides-

“On acceptance of an application and after receipt of any submissions from affected persons
or responses from the applicant, if the Ombud considers that there is a reasonable prospect of
a negotiated settlement of the disputes set out in the application, the Ombud must refer the
matter to conciliation”.

19. Section 48 (1) provides-

“If the conciliation contemplated in section 47 fails, the Ombud must refer the application
together with any submissions and responses thereto to an adjudicator”.

20. In terms of Section 50-

“The adjudicator must investigate an application to decide whether it would be appropriate to
make an order.”

21. Section 51 provides for the investigative powers of the Adjudicator:

“(1) When considering the application, the adjudicator may-
(a) require the applicant, managing agent or relevant person-
(i) to give to the adjudicator further information or documentation;
(ii) to give information in the form of an affidavit or statement; or
(iii) subject to reasonable notice being given of the time and place, to come to the office of the
adjudicator for an interview;
(b) invite persons, whom the adjudicator considers able to assist in the resolution of issues raised
in the application, to make written submissions to the adjudicator within a specified time; and
(c) enter and inspect-
(i) an association asset, record or other document;
(ii) any private area; and
(iii) any common area, including a common area subject to an exclusive use arrangement”.

22. The CSOS Practice Directive No 2 of 2018, Part 5 clause 21.2. published on the 1st of
August 2018, and signed by the Chief Ombud, permits the Ombud to refer a matter
directly to adjudication if he or she considers the dispute inappropriate for conciliation.

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23. The Practice Directive sets out some of the factors which the Ombud may consider in
deciding whether a matter is not appropriate for conciliation, and should be referred
directly to adjudication, and includes but is not limited to any aspect of urgency
associated with an issue or issues in dispute and includes the termination of electricity
supply to a section, which includes any form of restriction of access to electricity supply.

SUMMARY OF RELEVANT EVIDENCE

Applicant’s Submissions

24. The Applicant confirmed and placed on record the following:

24.1. The Respondent decided to take the law into its own hands and either it or its
appointed Managing Agent, De Lucia Properties, instructed Ideal Prepaid, the
Prepaid Meter Reading Company for the Respondent scheme, to block the
electricity supply meters to the units owned by the Applicant, being unit
numbers 109, 135, 141, 144, 150, 153, 154 AND 160.
24.2. The tenants occupying the aforesaid units are unable to load the prepaid
electricity supply meters and consequently cannot cook or use electricity at all.

Relief sought by the Applicant:

25. The Applicant seeks the following relief:

Section 39 (7) (b) – any other order proposed by the Chief Ombud.

That the Respondent be ordered and compelled to:

25.1. Unblock the prepaid electricity supply meters to the sections

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owned by the Applicant at the Respondent scheme, in order that the occupants
of the sections can purchase electricity to the sections that they occupy, being
unit numbers 109, 135, 141, 144, 150, 153, 154 and 160.

Respondent’s Submissions

26. The Respondent made no submissions despite having been given the opportunity to
do do.

Relief requested by the Respondent

27. None.

EVALUATION & FINDING

28. I have considered the Applicant’s submission in the matter, in the absence of any
submission by the Respondent. I presume that the reason for the Respondent blocking
the Applicant’s prepaid electricity supply meter to section numbers 109, 135, 141,
144, 150, 153, 154 and 160 is due to the fact that the Applicant is in arrears in respect
of his levies on the units, however this fact was not mentioned in its Statement of
Claim, and the Respondent elected not to make any submissions, which is regrettable
since not all the facts and circumstances of the matter are before me.

29. The general rule is that only evidence, which is relevant, should be considered.

30. Relevance is determined with reference to the issues in dispute.

31. The degree or extent of proof required is what is known in law as a “preponderance of
probabilities”, which means that once all the evidence has been tendered, it must be
weighed up and determined whether the Applicant’s version is probable.

32. It involves findings of facts based on an assessment of credibility and probabilities.

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33. The fact that the Respondent has elected not to submit any answer whatsoever to the
Applicant’s Statement of Claim leaves me with no alternative but to accept the
Applicant’s version as it stands as correct.

34. As stated above, the Respondent was sent a letter on the 7 th of August 2023 by the
Gauteng Provincial Ombud, referring to the High Court decision in the case of
Queensgate Body Corporate v Claassen (A3076_98) [1998] ZAGPHC 1, and
placing on record that the act of disconnecting a person’s electricity without a court
order is unlawful.

35. As stated above, blocking a person or multiple people’s ability to purchase prepaid
electricity from their prepaid electricity supply meters is tantamount to terminating
electricity supply or depriving them from accessing electricity, which is unlawful,
notwithstanding the fact that the unit-owner may be owing levies to the Body Corporate

36. Additionally, the Respondent was advised that unless the electricity supply to the
Applicant’s sections was reinstated by the end of the business day on the 7th of August
2023, the matter would be escalated to adjudication.

37. The Respondent’s Trustees failed, alternatively refused to furnish the CSOS with an
answer to the Applicant’s Statement of Claim addressing the matter.

38. it is well-established in South African Law that terminating the electricity (or water)
supply to a unit-owner’s section in a sectional title scheme as a result of the non-
payment of levies (or any similar reason) is unlawful and cannot and must not be done.

39. The Ombud’s Office has an obligation in terms of the CSOS Act to uphold the Law of
the Republic of South Africa, and its failure to do so would not only constitute a criminal
offence, but also be unconstitutional.

40. The learned Judge in the matter of Claudia Niehaus v High Meadow Grove Body
Corporate1 stated:

1
ZAGPHC 2018 40667/2018 (P20) (13 NOVEMBER 2018)

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“In any number of cases it has been held that to deprive a person of electricity supply,
is an example of the deprivation of quasi-possession, which is remediable by the
mandament van spolie. A full bench decision in this Division, in Queensgate Body
Corporate v Claesen (A3076/98) [1998] ZAGPHC 1(26 November 1999) is one such
case. There Blieden, J with whom Serobe, AJ agreed, dismissed with costs an appeal
from a Magistrates’ Court which granted a spoliation order against a body corporate.”

41. The Court in the above matter stated further that: “where the incorporeal right, such as a right
to the supply of electricity, is as a matter of fact, an incident of the possession of immovable property,
then the mandament van spolie will protect interference with such possession, as if it were interference
with possession of the immovable property itself”.

42. In the case under discussion an ‘interference with the supply of electricity” of all the
units in question has undoubtedly taken place.

43. Pursuant to the above I find that the Applicant is entitled to the relief sought.

44. In the absence of a very compelling and justifiable reason for the Respondent having
blocked the Applicant and tenants from purchasing or using electricity from the pre-
paid meters, which the Respondent has elected not to share with the CSOS, it is my
considered opinion that the Applicant has been unlawfully deprived of the supply of
electricity to the sections that he owns, and which are currently occupied by his
tenants.

45. Consequently, the Applicant has satisfied the burden of proof on a preponderance of
probabilities in this matter and is entitled to the relief sought.

COSTS

46. There is no order as to costs.

ADJUDICATION ORDER

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47. Accordingly, the following order is made:

As regards the Applicant’s First Prayer:

The Respondent is ordered and compelled in terms of section 39(7)(b) of the

Community Schemes Ombud Service Act, No. 9 of 2011, and the relevant Practice
Directive relating thereto, to:

47.1. Ensure that the electricity supply to section numbers 109, 135, 141, 144, 150,
153, 154 AND 160 at the Respondent scheme, which sections are owned by the
Applicant and are situated within the Respondent scheme situated at Biddulph
Street, Whitfield Extension 45, Boksburg, Johannesburg are reconnected
forthwith (but by later than 4 p.m.) on Monday the 14th of August 2023, this order
includes reinstating the unimpeded access to, and reinstatement of the prepaid
electricity supply meter (i.e. the unblocking of the prepaid electricity supply
meter) to all of the aforesaid sections at the Respondent scheme in order that
electricity can be purchased and used.

47.2. Nothing other than electricity may be loaded on the electricity supply meters by
the Respondent, the Managing Agent of the Respondent, or their agents.

Further to the above:

47.3. The Respondent shall bear any, and all costs related to the reconnection of the
electricity supply to the Applicant’s sections as referred to above, and the
Applicant shall not be required to pay any costs associated with the
reinstatement of the prepaid electricity supply meters.

47.4. The Respondent, and its duly appointed agent on its behalf, are ordered to
henceforth refrain from terminating the electricity supply or placing any block or
hold, or instructing the Prepaid Meter Company or any other person from placing
any block or hold on the prepaid electricity supply meter to sections 109, 135,

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141, 144, 150, 153, 154 and 160 at the Respondent scheme, unless and until
they are in possession of a Court Order authorizing them to do so.

RIGHT OF APPEAL

48. Section 57 of the CSOS Act, provides for the right of appeal-
“(1) An applicant, the association or any affected person who is dissatisfied by an adjudicator's
order may appeal to the High Court, but only on a question of law.
(2) An appeal against an order must be lodged within 30 days after the date of delivery of the order
of the adjudicator.
(3) A person who appeals against an order, may also apply to the High Court to stay the
operation of the order appealed against to secure the effectiveness of the appeal.”

DATED AT CENTURION ON THE 10th OF AUGUST 2023

_____________________
KAREN BLEIJS
ADJUDICATOR

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