1
ADJUDICATION ORDER IN TERMS OF SECTION 54
OF THE COMMUNITY SCHEMES OMBUD SERVICE ACT NO.9 OF 2011
Ref: CSOS 7363/GP/23
IN THE MATTER BETWEEN
TRUSTEES OF PARKRAND BODY CORPORATE Applicant
and
FARLANE ANTHEA Respondent
(Owner unit 99)
ADJUDICATION ORDER
EXECUTIVE SUMMARY
Relief applied for in terms of the Community Schemes Ombud Services Act (“the
CSOS Act”):
Section 39(1) In respect of financial issues— (e) an order for the payment or
repayment of a contribution or any other amount.
Date Adjudication conducted:
20 NOVEMBER 2023
Name of the Adjudicator:
KAMOGELO MAPUTLA
CSOS 7363/GP/23
Order:
(a) The Applicant’s relief against the Respondent under section 39(1)(e ) of the CSOS
Act succeeds.
(b) The Respondent is ordered to pay the Applicant the amount of R 25 287.13
(Twenty-Five Thousand, Two Hundred and Eighty-Seven Rand and
Thirteen Cents) within 5 months from the date of this order being issued.
(c) The first payment will be on 1 January 2024 to the tune of R 5 057. 40 (Five
Thousand, Fifty-Seven Rands, Forty Cents), followed by equal instalment
payments on the first of every subsequent month.
(d) Should the owner fail to make any payment accordingly, then the latter is ordered
to pay the full amount of R 25 287.13 (Twenty-Five Thousand, Two Hundred
and Eighty-Seven Rand and Thirteen Cents) within 30 days from the date of
the first default.
(e) No order as to costs.
INTRODUCTION
1. The Applicant is TRUSTEES OF PARKRAND BODY CORPORATE, as
contemplated in section 7 of the Sectional Titles Schemes Management Act 1
(“the STSMA”). Parkrand Body Corporate (“Parkrand”) is duly registered and
constituted as such in accordance with the provisions of section 36 of the
Sectional Titles Act2 (“the STA”), read in harmony with section 2(1) of the
STSMA. Parkrand is a community scheme as defined in the CSOS Act, a body
corporate as defined in terms of the STSMA, situated at Brink Street, Parkrand,
Boksburg, Gauteng Province. Where convenience permits, Parkrand will be
referred to as “the Body Corporate”.
2. The Respondent is MS. ANTHEA FARLANE, the registered owner as defined
in the section 1 of CSOS Act of unit 99, Parkrand Body Corporate, situated at
Brink Street, Parkrand, Boksburg, Gauteng Province.
3. This is an application for dispute resolution in terms of section 38 of the CSOS
Act. The application was made in the prescribed form and lodged with the
1
Act 8 of 2011.
2
Act 95 of 1986.
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CSOS 7363/GP/23
Community Schemes Ombud Service (CSOS) by way of email on 20
September 2023.
4. In terms of clause 5.9 of the CSOS dispute resolution practice directive dated
1 August 2018, dealing with applications states that: “Where the applicant is a
community scheme, a copy of a resolution by Executive Committee of the
scheme must be attached to the application authorising the lodgement of the
application”. [Own bolding and underlining]
5. On 31 August 2023, the Applicant duly complied with the above-mentioned
requirements by attaching the requisite resolution to the application.
6. The Applicant seeks relief in terms of section 39 of the CSOS Act, is in respect
of Section 39(1)(e) of the CSOS Act, in respect of financial issues.
7. Accordingly, a certificate of Non- resolution was issued in terms of Section 48(1)
of the CSOS Act. The Ombud referred the application together with any
submissions and responses thereto to an adjudicator on 19 October 2023.
8. 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. The adjudication was conducted on 20 November
2023 and an order is now determined.
9. The prescribed fee for adjudication was not paid owing to clause 3 of the
amended practice directive dated 2 December 2021.
PRELIMINARY ISSUES
10. No preliminary issues were raised.
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CSOS 7363/GP/23
RELEVANT STATUTORY PROVISIONS
11. 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”.
“common area” as “any part of land or building in a community scheme, which is
intended for common use by occupiers”
"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”.
“owner” as “a person who has a legally secured right to possession and occupation of
a private area, including but not limited to the owner of a sectional title unit, the holder
of shares in a share block company and the holder of an occupation right in a housing
scheme for retired persons.”
“practice directive” as “a practice directive issued in terms of section 36”.
12. Section 38 of the CSOS Act provides that-
“Any person may make an application if such person is a party to or affected materially by a
dispute”.
13. Section 45(1) of the CSOS Act provides that-
“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”.
14. Section 47 of the CSOS Act provides that-
“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”.
15. Section 48 (1) of the CSOS Act provides that-
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“If the conciliation contemplated in section 47 fails, the Ombud must refer the application together
with any submissions and responses thereto to an adjudicator”.
16. In terms of Section 50 of the CSOS Act provides that-
“The adjudicator must investigate an application to decide whether it would be appropriate to
make an order.”
17. Section 51 of the CSOS Act provides 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”.
18. Section 54(4) of the CSOS Act provides that-
“The order must set the time- when the order takes effect; or within which the order must be
complied with.”
SUMMARY OF RELEVANT EVIDENCE
Applicant’s Submissions
19. The Applicant avers that as at 11 November 2023, the Respondent had arears
to the tune of R 25 287.13 (Twenty-Five Thousand, Two Hundred and
Eighty-Seven Rand and Thirteen Cents).
Relief sought by the Applicant:
20. The Applicant seeks an order against the Respondent that:
a) the outstanding balance must be paid.
b) Costs.
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Respondent’s Submissions
21. Section 43 notice in terms of clause 14 of the CSOS practice directive was
issued with no response.
Relief sought by the Respondent.
22. None submitted.
EVALUATION & FINDING
23. In the absence of further documents, and in the interest of time and progress
the adjudicator adjudicates on this application on the undisputed facts.
24. In evaluating the evidence and information submitted, the probabilities of the
case together with the reliability and credibility of the witnesses must be
considered.
25. 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 weighed up and determined
whether the Applicant’s version is probable. It involves findings of facts based
on an assessment of credibility and probabilities.
26. It is trite that the objective of the CSOS Act is to provide a mechanism for the
informal, expeditious and cost-effective resolution of a dispute between owners
of units in a community scheme and its administrator via the Ombud, who is
given wide powers to resolve such disputes by way of qualified conciliators and
adjudicators respectively.
27. Notwithstanding the fact that Applicant has approached CSOS for intervention
which is the correct process to follow provided, one is minded of case law which
asserts confidence in this position. The Court in Wingate Body Corporate v
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Pamba & Another3, the Court eloquently stated that: “[13] In the Heathrow
matter, the Court set out the position thus: ‘by establishing the CSOS whose
personnel is required to consist of suitably qualified adjudicators, the legislature
had intended that the CSOS be the primary forum for the adjudication and
resolution of disputes in matters such as the present’. The court went on to
state that: ‘a court is not only entitled to decline to entertain such matters as a
forum of first instance, but may in fact be obliged to do so, save in exceptional
circumstances. Such matters will not be matters which are properly before the
High Court, and on the strength of the principle in Standard Credit(and a
number of courts thereafter, including the Constitutional Court in Agriwire), it is
accordingly entitled to decline to hear them, even if no abuse of process is
involved.”
28. The reader is referred to the CSOS circular on amendment of rules 1of 2021
dated 6 May 2021. Annexure A22 reads thus: “The managing agent must make
all audited financials available to the member, especially if the trustees have
signed them off.”
29. Annexure A26 reads thus: “Levies – There can be no rules preventing
members from exercising their voting rights for non-payment of levies. Rules
preventing the member/tenant/occupier access to the property for non-payment
of levies will not be passed.”
30. Annexure A 27 reads thus: “Costs – Any rule attempting to recover the cost of
travel and CSOS dispute resolution process from a member will not be passed.
The dispute resolution directive specifically says that all costs for dispute will
be determined at conciliation or by an adjudicator.”
31. From the facts, the Applicant has complied with its duty to exhaust all internal
remedies to no avail from the Respondent. The Adjudicator is satisfied that
there has been compliance with clause 9.2 of the CSOS dispute resolution
practice directive dated 1 August 2018, dealing with exhausting internal
dispute resolution.
3
[2022] ZAGPPHC 46 (21 January 2022) @ para 13.
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CSOS 7363/GP/23
32. As regards the Applicant’s relief under section 39(1)(e) of the CSOS Act, the
following observations are made.
33. The Conduct Rule 23 provides that: “Any owner shall be liable and pay all legal
costs, including costs as between attorney and client, collection, commission
expenses and charges incurred by the Body Corporate Trustees in obtaining
recovery of arrear amounts due and owing by such owner of the Body
Corporate.”
34. Regard must be had to the Supreme Court of Appeal decision of Mount
Edgecombe Country Club Estate Management Association Two (RF) NPC v
Singh and Others4, when dealing with contractual rapport in community
schemes, the court held that: “When the respondents chose to purchase
property within the estate and became members of the Association, they
agreed to be bound by its rules. The relationship between the Association
and the respondents is thus contractual in nature. The conduct rules, and
the restrictions imposed by them, are private ones, entered into
voluntarily when an owner elects to buy property within the estate”. [Own
bolding]
35. Regulation 21(3)(c) of the STSM Regulations provides that: “(3) The body
corporate may, on the authority of a written trustee resolution- (c) charge
interest on any overdue amount payable by an member to the body corporate;
provided that the interest rate must not exceed the maximum rate of interest
payable per annum under the National Credit Act (2005) Act No 34 of 2005),
compounded monthly in arrears.” The Applicant has the requisite authorisation
through an compliant resolution.
36. Regulation 21(3)(h) of the STSM Regulations (Annuexure1) provides that: “The
body corporate may, on the authority of a written trustee resolution-(h)
approach the Community Scheme Ombud Service for relief.”
37. In light of the foregoing, the Applicant has made out a proper case for the relief
under discussion has been established.
4
(32/2018) [2019] ZASCA 30 (28 MARCH 2019) at para 19.
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38. As regards prayer 20(b) i.e. cost and legal fees this relief must fail for reasons
to follow.
38.1 In Stenersen and Tulleken Administration CC v Linton Park Body
Corporate and Another5, when dealing with the onus of proof from the
Applicant, the Court expressed itself in the following terms: “[14] In terms
of the Practice Directive, the applicant bears the onus of ensuring that
all the relevant information necessary, to “make their case” is set out in
the Application for Dispute Resolution Form, which includes the
attachment of any documents pertinent to the claim. In other words, the
applicant must set out the grounds to meet the legislative requirements
of the relief sought.” The Applicant’s case is clear on this score and has
received this order free of charge.
38.2 The CSOS Act establishes the Community Schemes Ombud Service,
whose purpose is to develop and provide an expeditious and informal
cost-effective dispute resolution mechanism in respect of ‘community
schemes.6
38.3 Before the promulgation of the CSOS Act, there was no regulatory body
to deal with complaints and disputes from community schemes, in the
absence of the tedious and expensive exercise of approaching the
courts.
38.4 South African courts have historically treated costs as a matter of largely
unfettered discretion.7 Notwithstanding this ‘free hand’, a coherent set of
principles on cost orders has emerged from the case law.
5
(A3034/2018) [2019] ZAGPJHC 387; 2020 (1) SA 651 (GJ) (24 October 2019).
6
See section 2 of the CSOS Act and the long title.
7
See A Cilliers The Law of Costs (2006) at § 14.04, citing Neugebauer & Co Ltd v Hermann 1923 AD 564,
575; Penny v Walker 1936 AD 241, 260; Protea Assurance Co Ltd v Matinise 1978 (1) SA 963, 976 (a); Kilian
v Geregsbode, Uitenhage 1980 (1) SA 808, 815-816 (a).
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38.5 The reason a party chooses to litigate is, on the Court’s current
approach, a relevant factor in deciding on a costs award. However, this
rationale requires more reflection than might be commonly expected.
38.6 One of the primary factors that will always affect a court’s award of costs
is the way that the litigants have conducted the litigation. For this reason,
there is no need for costs in this matter.
38.7 Clause 23 is oppressive, archaic and incongruent with the legal
framework of the CSOS Act as alluded to in paragraph 38.2 earlier,
including the practice directive as alluded to in paragraph 30 above. This
is an indication that the Body Corporate Rules have not underwent
recent CSOS scrutiny in terms of section 10(2)(b) of the STSMA.
38.8 Thus, the prayer is misconceived and attracts a dismissal in terms of
section 53(1)(a)8 of the CSOS Act.
COSTS
39. There is no order as to costs.
ADJUDICATION ORDER
40. In the circumstances, the following order is made:
a) The Applicant’s relief against the Respondent under section 39(1)(e) of the
CSOS Act succeeds.
b) The Respondent is ordered to pay the Applicant the amount of R 25 287.13
(Twenty-Five Thousand, Two Hundred and Eighty-Seven Rand and
Thirteen Cents) within 5 months from the date of this order being issued.
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Order dismissing application
53. (1) The adjudicator may make an order dismissing the application if, after
investigation —
(a) the adjudicator considers that the application is frivolous, vexatious, misconceived or without substance; or
(b) the applicant fails to comply with a requirement in terms of section 51.
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c) The first payment will be on 1 January 2024 to the tune of R 5 057. 40 (Five
Thousand, Fifty-Seven Rands, Forty Cents), followed by equal instalment
payments on the first of every subsequent month.
d) Should the owner fail to make any payment accordingly, then the latter is
ordered to pay the full amount of R 25 287.13 (Twenty-Five Thousand, Two
Hundred and Eighty-Seven Rand and Thirteen Cents) within 30 days from
the date of the first default.
e) No order as to costs.
RIGHT OF APPEAL
41. 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 ON THIS 20TH DAY OF NOVEMBER 2023.
_______________
KAMOGELO MAPUTLA
ADJUDICATOR
(Not signed due to electronic transmission)
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