ADJUDICATION ORDER IN TERMS OF SECTION 54

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

Ref: CSOS 3656/FS/22

IN THE MATTER BETWEEN

THE TRUSTESS OF ELMA PARK BODY CORPORATE Applicant

and

ERF 195 ELMA PARK Respondent

ADJUDICATION ORDER

EXECUTIVE SUMMARY
• Relief applied for in terms of the CSOS Act:

Section 39(6)(a): In respect of work pertaining to private areas and common

areas-
An order requiring the association to have repairs and
maintenance carried out.

• Date adjudication was conducted:

9 January 2023

• Name of the Adjudicator:

William A J Nicholson
 CSOS 3656/FS/22

• Order:
o In terms of Section 54 (1)(a) the order is refused.

INTRODUCTION

1. The Applicant is Sonja Pranger-Grantham an adult female in the employ of Eagle Blue
Management Agents, the duly appointed representees of the Trustees of the Elma
Park Body Corporate with its place of business at Elma Park, corner of Boeing and
First Avenue, Edenvale, Gauteng.

2. The Respondent is Erf 195 Elma Park, corner of Boeing and First Avenue, Edenvale,
Gauteng.

3. The community scheme is the Elma Park Body Corporate, a body corporate
contemplated in the Sectional Titles Schemes Management Act 8 of 2011 (“STSMA”).
The scheme is residential.

4. This is an application for a dispute resolution in terms of section 38 of the Community

Schemes Ombud Service Act 9 of 2011 (“the CSOS Act”’). The application was made
in the prescribed form and lodged with the Community Schemes Ombud Service
(“CSOS”) on or about 7 September 2022.

5. The Applicant is seeking relief in terms of:

s39(6)(a): In respect of work pertaining to private areas and common areas-
An order requiring the association to have repairs and maintenance carried
out.

PRELIMINARY ISSUES

6. No preliminary issues were raised.

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RELEVANT STATUTORY PROVISIONS

7. 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”.

8. 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”.

9. Section 45(1) provides-

“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”.

10. 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”.

11. 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”.

12. In terms of Section 50-

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

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13. 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”.

14. The Certificate of Non-resolution and referral to Adjudication in terms of Section 48 of

the CSOS Act was issued on 17 October 2022.

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

16. The matter was referred to:

16.1 CSOS on the 7 September 2022;

16.2 conciliation on 17 October 2022

16.3 adjudication on 9 January 2023; and

16.4 an order is now determined.

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SUMMARY OF RELEVANT EVIDENCE

Applicant’s Submissions

17. Applicant alleges that sections 1 and 2 of Elma Park is in a state of disrepair in light
of damages such as water corrosion in consequence of lack of waterproofing, broken
windows, pests and structural concerns.

18. Applicant alleges that notwithstanding the repairs been the responsibility of
Respondent, the broken windows have been repaired at the expense of body
corporate, while other repairs have been done through donations

19. Presently, the Body Corporate does not have any funds to repair the two sections.

Relief sought by the Applicant

20. Applicant seeks an order that section 1 and section 2 of Elma Park are repaired to a
reasonable state of repair, and the sections must be maintained on a regular basis
going forward.

Respondent’s Submissions

21. A response was received from Goodes and Co Attorneys on behalf of Respondent.
The letter advises that Erf 195 Elma Park Limited is in liquidation and liquidators have
been appointed by the Master of the High Court.

22. The response further advises that there is other pending litigation between the parties
and there is currently an application by Respondent to commence business rescue
proceedings.

23. The response further states that this application should be rejected in terms of Section
42(d) of the CSOS Act as it may best be dealt with in a Court of law or other Tribunal
of competent jurisdiction.

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24. The Respondent further avers that the Respondent has been cited incorrectly
because Respondent has been cited as Erf 195 Elma Park c/o Honey Attorneys,
notwithstanding .

25. With regard to the water corrosion and water leaks, the response states that it is the
duty of the body corporate to ensure that the roof is free of leaks and not the
Respondent. The same goes for the structural integrity of the building.

26. The response also points out that in the second to last paragraph, attached to the
letter from Applicant, a disclaimer is inserted that states:

“We wish to place on record that this application was drafted without prejudice. The views
expressed herein relate to the application at hand and do not express the opinions of the Elma
Park Body Corporate, its representatives, trustees, employees or agents.”

Relief sought by the Respondent

27. Respondent does not seek any relief.

EVALUATION & FINDING

28. It is instructive to mention that attached to the application is a authorising the

managing agent to represent the body corporate at this adjudication.

29. Section 8 of STSMA reads:

“(1) Each trustee of a body corporate must stand in fiduciary relationship to the body
Corporate.
(2) Without derogating from the generality of the expression “fiduciary relationship”, the
provision of sub-section (1) implies that a trustee that-
(a) must in relation to the body corporate act honestly and in good faith, and in
particular –
(i) exercise his or her powers in terms of the Act in the interest and for
the benefit of the body corporate; and
(ii) not act without exceeding those powers; and
(b) …”

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30. Prescribed Conduct Rule 30 reads:

“The body corporate must take all reasonable steps to ensure that a member or any other
occupier of a section or exclusive us area does not –
(g) construct or place any structure or building improvement on an exclusive use area
which in practice constitutes a section or an extension of the boundaries or floor area
of a section without complying with the requirements of the Act and the Sectional
Titles Act; provided that the body corporate may by ordinary resolution –
(i) Give consent for such a structure or building improvement, if they are satisfied
that it does not require compliance with such requirements;
(ii) Prescribe any reasonable condition in regard to the use or appearance of the
structure or building improvement;
(iii) Withdraw any consent if the member or other occupier of a section breaches
any such condition.”

31. In Body Corporate Le Chene D'or v Carim 2019 JDR 0304 (GJ) it was held:

“[32] In fact, the Applicant has a duty to take all reasonable steps to ensure that an
owner of a section does not use a section so as to cause a nuisance, in breach
of his duties as envisaged in Section 13(1)(e) of the Management Act; nor make
alterations to a section or an exclusive use area that are likely to impair the
stability of the building or interfere with the use and enjoyment of other sections,
of the common property, or an exclusive use area, nor do anything to a section
that has a material negative affect on the value or utility of any other section or
exclusive use area.”

32. Section 13 of the STSMA reads:

“Duties of Owners
(1) An owner must –
(a) …
(b) forthwith carry out work that may be ordered by any competent authority in
respect of his or her section other than such work as may be required for the
benefit of the building generally, and pay all charges expenses and
assessments that may be payable in respect of his or her section.
(c) repair and maintain his or her section in a state of good repair and, in respect
of an exclusive use area, keep it in a clean and neat condition.”

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33. Prescribed Management Rule 22 reads:

“Maintenance, Repair and Replacement Plan

(1) A body corporate or trustees must prepare a written maintenance, repair and
replacement plan for the common property, setting out –
(a) the major capital item expected to require maintenance, repair and
replacement within the next 10 years;
(b) the present condition or state of repair of those items;
(c) the time when those items or components of those items will need to be
maintained, repaired or replaced;
(d) the estimated costs of the maintenance, repair and replacement of those items
or components;
(e) the expected life of those items or components once maintained, repaired or
replaced; and
(f) any other information the body corporate considers relevant.
(2) …
(3) A maintenance, repair and replacement plan takes effect on its approval by the
members in general meetings; provided that on approval of such a plan, members
may lay down conditions for the payment of money from the reserve fund.
(4) …”

34. Section 3 of the STSMA reads:

“Functions of Body Corporate

(1) A body corporate must perform the functions entrusted to it by or under this Act or
the rules, and such functions include –
(a) …
(l) to maintain all common property and to keep it in a state of good and
serviceable repair.”

35. Body Corporate of the Solidatus Scheme No SS23/90 v de Waal and Others (1997)
3 ALL SA 91 T, the court found that the intention of the legislature was to place the
burden for the upkeep of EUAs where the benefit lay, in other words on the owner of
the section to which those exclusive use rights were attached. The court found that
it would be unfair to expect the other occupants in the scheme to contribute to the
costs of repairs and maintenance of an EUA, in respect of which they could neither
access nor derive any benefit from.

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36. Accompanying the Dispute Application are several photographs of the damage to the
sections. It is apparent from the photographs that the sections are in a state of
disrepair, and it appears that there is extensive damage as a result of the water leaks,
and there is also structural damage to the roof, possibly from the water leaks.

37. Taking the aforementioned legislation into account and the response by Respondent,
I am not convinced that the damage is solely the fault of respondent because it is
apparent from the photographs that the roof is damaged which may have caused the
other damages including the structural damage.

38. It is trite that roofs in Body Corporates such as these, are common property and
subject to maintenance at the expense of the Applicant. However, Applicant simply
seeks an order against Respondent for the entire costs of the repairs without
apportioning any of the damage to the Body Corporate, who had a duty in law to
maintain the roof which forms part of the common property. In the circumstances, this
application cannot succeed.

39. If I am wrong on that score, Applicant has not cited Respondent correctly. In Body
Corporate of Duroc Centre v Singh 2019 (6) SA 45 (KZP) a matter where the appeal
was upheld due to lack of locus standi, it was held:

[13] Conradie J in Watt v Sea Plant Product Bpk and others [1998] 4 All SA (C) at 113h -
114d distinguishes between locus standi and authority succinctly. The court held:
‘Locus standi in iudicio is an access mechanism controlled by the court itself. The standing of
a person does not depend on authority to act. It depends on whether the litigant is regarded
by the court as having a sufficiently close interest in the litigation. In Jacobs en ’n Ander v
Waks en andere 1992 (1) SA 521 (A) at 533J-534A Botha JA described the requirement for
locus standi as “ ’n voldoende belang … by die onderwerp van die geding om die hof te laat
oordeel dat sy eis in behandeling geneem behoort te word”. In Jacob’s case the question was
what interest the applicants had in the invalidation of a resolution of a local authority. The court
commented-
“Aldus beskou, spreek die férte sterk ten gunste daarvan dat die Hof toe- ganklik
behoort te wees vir hierdie applikante, en gevolglik moet die bevinding wees dat hule
wel locus standi het om die nietigverklaring van die besluit aan te vra”(536C-D).

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The question then, to be posed in casu is whether at the time summons was issued the
trustees’ interest in the trust was too remote. The answer to this question depends upon the
nature of a trustee’s appointment. Where a trustee has been appointed – in a trust deed or
otherwise – the appointment is not void pending authorization by the Master in terms of section
6(1) of the Act (cf. Metequity Limited and another v NWN Properties Limited and others [1997]
4 All SA 607 (T) at 611a-d). Although a trustee’s power to act in that capacity is suspended by
section 6(1) of the Act, he or she would, in my view, have a sufficiently well defined and close
interest in the administration of the trust to have locus standi in iudicio. Any conclusion that
the second and third defendants were by section 6(1) of the Act deprived of locus standi in
iudicio (which would mean not only that they could not be sued but also that they could not
approach the court to protect the interests of the trust) would not give effect to the intention of
the legislature. Whilst recognising the desire of the legislature to regulate the rights and duties
of trustees in the Act, one should, I think, be slow to conclude that it would have desired to
accomplish this by controlling their access to, or accountability in, a court of law.’

40. The Liquidators ought have been cited. Accordingly, a judgement against
Respondent will not be executable.

41. Prag N.O and Another v Trustees for the time being of the Mitchell's Plain
Industrial Enterprises Sectional Title Scheme Body Corporate and Others
(A260/2020) [2021] ZAWCHC 132 (16 July 2021), held at paragraph (28) that:

“If one considers the terms of the CSOS Act as a whole, and the kinds of matters in respect
of which an adjudicator can make orders in terms of s39 of the Act, they either concern
regulatory/governance issues, pertaining to the administration of a sectional title scheme, or
behavioural issues, pertaining to the conduct of members of the scheme inter se (which
commonly would cover so-called nuisance or neighbour disputes). It was clearly not intended
that the Ombud would have the power to adjudicate on delictual claims for damages, which
involve weighty considerations pertaining to wrongfulness (which depend on prevailing
societal norms and public policy) and fault, and the quantification and determination of the
quantum of any damages which may have been sustained pursuant thereto, which are matters
which are best left for judicial officers and Courts.”

42. Again, if I am wrong, I am of the view that despite the facts been relatively straight
forward, the matter is complicated by various legislation such as the Companies Act,
which governs business rescue and Insolvency and the Insolvency Act. Even if an

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order is granted in favour of Applicant, the judgement will be unenforceable because,

respondent is insolvent.

43. I agree with Prag N.O and Another that matters such as these should be litigated
before a different forum, as contemplated in Section 42(d) of the CSOS Act.

44. In the premises, the application cannot succeed.

COSTS

45. No order as to costs.

ADJUDICATION ORDER

46. In the premises, in terms of Section 54 (1)(a) the order is refused.

RIGHT OF APPEAL

47. 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 DURBAN on this the 9th day of JANUARY 2022.

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