ADJUDICATION ORDER IN TERMS OF SECTION 54

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

Ref: CSOS5288/KZN/22

IN THE MATTER BETWEEN

AHMED SADECK MANSOOR obo AI ZAKHURA APPLICANT
And
MONT BLANC BODY CORPORATE RESPONDENT

ADJUDICATION ORDER

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

Section 39 (6) In respect of works pertaining to private areas and common areas—
(b) an order requiring the relevant person—(ii) to pay the applicant an amount fixed by
the adjudicator as reimbursement for repairs carried out or to be carried out in respect of
the property by the applicant.

• Date Adjudication conducted: 09 JANUARY 2023.

• Name of the Adjudicator: Thandeka Qwabe.

• Order: REFUSED.
• No order as to costs.
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INTRODUCTION

1. The Applicant is Ahmed Sadeck Mansoor o.b.o AI Zakhura who is an owner of flat 282 at
Mont Blanc Body Corporate, situated at 51 OR Tambo Parade, South Beach, Durban,
KwaZulu- Natal.

2. The Respondent is Mont Blanc Body Corporate a legal person in terms of the provisions of
the Sectional Titles Schemes Management Act No. 8 of 2011(“STSMA”) whose address is
51 OR Tambo Parade, South Beach, Durban, KwaZulu-Natal.

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 CSOS Act). The application was made in the
prescribed form and lodged with the Community Schemes Ombud Service (the CSOS).

4. The application seeking relief in terms of section 39 of the CSOS Act, is in respect of-

Section 39 (6) In respect of works pertaining to private areas and common areas—
(b) an order requiring the relevant person—(ii) to pay the applicant an amount fixed by the
adjudicator as reimbursement for repairs carried out or to be carried out in respect of the
property by the applicant.

5. 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 on 10 October 2022. The adjudication was conducted on 09 January 2023 and
an order is now determined.

PRELIMINARY ISSUES
6. No preliminary issues were raised.

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

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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.”

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.

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(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 respondent or affected person failed to provide a response to the CSOS notice in terms
of section 43. Accordingly, the dispute is therefore referred directly to Adjudication in terms
of section 48 of the CSOS Act read with Clause 21.5.7 of the Practice Directive on Dispute
Resolution. The Ombud referred the application together with any submissions and
responses thereto to an Adjudicator on 08 October 2022.

SUMMARY OF RELEVANT EVIDENCE

15. Applicants Submissions

15.1 The Applicant submits that in 2017 an insurance claim for resultant damage, in flat 272 was
submitted. It is stated that all procedures were followed. The damage was caused by a
leaking water pipe which was embedded in the wall of his bathroom. The owner was
informed that the built-in cupboards were completely damaged.

15.2 The Applicant states that it was apparent that the body corporate did not have an insurance
cover for three months, but the owners did not have knowledge that the building had no
insurance.

15.3 The Applicant submits that owners are billed monthly for insurance cover on the levy
account.

15.4 The Applicant submits that the trustees misrepresented themselves and should be held
personally liable for this claim.

Relief Sought by Applicant

16.1 The Applicant wants the full amount of R 17 500 paid for the replacement of the cupboards
and carpet.

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Respondent’s Submissions

17.1 The Respondent was served with a Notice 43 in terms of the CSOS Act on 28 September
2022 to provide the Respondent an opportunity to respond to the allegations.

17.2 The Respondent did not respond, and the matter was referred directly to Adjudication on
08 October 2022 due to no response by the Respondent.

17.3 The parties were afforded an opportunity to make final written submissions on 10 October
2022. The Respondent did not make any submissions.

Relief sought by the Respondent.

18. None.

EVALUATION & FINDING

19. In evaluating the evidence and information submitted, the probabilities of the case together
with the reliability and credibility of the witnesses must be considered.

20. The general rule is that only evidence, which is relevant, should be considered. Relevance
is determined with reference to the issues in dispute. The degree or extent of proof required
is a balance of probabilities. This means that once all the evidence has been tendered, it
must be weighted up and determined whether the applicant’s version is probable. It involves
findings of facts based on an assessment of credibility and probabilities.

21. The Body Corporate has a responsibility to insure the building and the land of the body
corporate. Section 3 (1) of the STSMA states:
“A body corporate must perform the functions entrusted to it by or under this Act or the rules,
and such functions include a) to establish and maintain an administrative fund which is
reasonably sufficient to cover the estimated annual operating costs (iii) for the payment of
any insurance premiums relating to the building or land…”

22. It further requires the body corporate under section 3(1) of the STSMA to:
“…(h) to insure the building or buildings and keep it or them insured to the replacement
value thereof against fire and such other risks as may be prescribed.

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(i) to insure against such other risks as the owners may by special resolution
determine.
(k) to pay the premiums on any insurance policy effected by it.”

23. Regulation 23 (1 ) of the STSMA under Management Rules provides:

“The insurance policies of the body corporate in terms of sections 3(1)(h) and (i) of the Act —
(a) must provide cover against —(i) risks referred to in regulation 3;(ii) risks that members
resolve must be covered by insurance.”

24. Owners are entitled to take out insurance in respect of damages that might arise in their
section. Section 14 of the STSMA states:
“(1) Notwithstanding the existence of a valid insurance policy effected by the body corporate pursuant
to the provisions of section 3(1)(h), an owner may obtain an insurance policy in respect of any damage
to his or her section arising from risks not covered by the policy effected by the body corporate.”

25. In saying that one has to bear in mind that the owner is responsible for repairing their section
in line with section 13 of the STSMA which states:
“ (1) An owner must— (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.”

26. It would appear in my view that the insurance that the body corporate is compelled to have
which could cover the section are those relating to the pipe that according to evidence was
leaking. In my view this is covered as it forms part of the building which is insurance that is
stated by section 3(1)(h) of the STSMA “…(h) to insure the building …”

27. The Applicant wants to be reimbursed an amount of R 17 500 paid for the replacement of the
cupboards and carpet in their section and wants the Respondent to be held personally
responsible for this claim. The Applicant’s evidence is that the Respondent did not have
insurance cover for three months hence the claim for the reimbursement. The claim is not
only one that is for the interest of an individual and not the scheme but a delictual claim for
damages. The case of Prag NO v Mitchells Plain BC 2021 A260-2020(WC) held :
“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 s 39 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

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(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.”

28. Further the court held in Ellis v Trustees of Palm Grove Body Corporate and Others
(2293/2020P) [2021] ZAKZPHC 97 (7 December 2021):
“[15] Mr Sewpal submitted that the third respondent erred on a point of law by conflating the
provisions of s 8(4) of the Sectional Titles Schemes Management Act (the Act) and those of
the CSOS Act. In his contention, she had no jurisdiction to order the relief that she granted. I
agree with this submission as the duties and fiduciary relationships of trustees are dealt with
under the Act. If one looks at the facts leading to the decision and the award, they were
predicated on the appellant’s role as the chairperson of the body corporate and that would
be when the issues of fiduciary duties come into play and not a dispute in the community
scheme per se. That issue is covered by the Act and not the CSOS Act, hence, such a dispute
fell outside the ambit of the CSOS Act and the third respondent.”

29. The applicant has not substantiated the claim and the relief sought is accordingly refused.

ADJUDICATION ORDER
30. In the circumstances, the following order is made:
30.1 This application is refused.

30.2 No order as to costs.

RIGHT OF APPEAL

31. 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 13 JANUARY 2023.

T.P QWABE

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ADJUDICATOR

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