CSOS683/GP/23

ADJUDICATION ORDER IN TERMS OF SECTION 53

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

Ref: CSOS683/GP/23

IN THE MATTER BETWEEN

CHERYL REDDY APPLICANT

and

DIRECTORS OF MANYALETI ESTATE

HOMEOWNERS ASSOCIATION RESPONDENT

ADJUDICATION ORDER

EXECUTIVE SUMMARY

Relief applied for in terms of the CSOS Act:

Section 39 (7) In respect of general and other issues- “(a) an order declaring that the
applicant has been wrongfully denied access to information or documents, and requiring the
association to make such information or documents available within a specified time; or (b)
any other order proposed by the chief ombud.”

Date Adjudication conducted:

14 AUGUST 2023.

Name of the Adjudicator:

N FOCA.

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Order:
(a) The relief sought by the Applicant in terms of sections 39(7) of the CSOS Act, is
dismissed.
(b) The relief sought by the Applicant against the Respondent is misconceived and
accordingly, is dismissed, in terms of section 53 (1) (a) of the CSOS Act.
(c) No order is made as to costs.

INTRODUCTION

1. The Applicant is CHERYL REDDY, the registered owner of unit number 17 Manyaleti
Estate, Upoplar Avenue, Craigavon, Fourways, Gauteng Province.

2. The Respondent is the DIRECTORS OF MANYALETI ESTATE HOMEOWNERS

ASSOCIATION, which together are the persons who are elected as the executive
organ of a non-profit company duly registered at the Companies and Intellectual
Properties Commission, which is a community scheme, as defined in the Community
Schemes Ombud Service Act 9 of 2011 (the CSOS Act), and to which it would be
convenient to refer to as the “HOA”.

3. This is an application for 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) by way of email.

4. The application seeking relief in terms of section 39 of the CSOS Act, is in respect of
Section 39(7) in respect of general and other issues.

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. The adjudication was conducted on the
14th of August 2023 and an order is now determined.

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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 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. Accordingly, a direct referral to adjudication was done 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 the 10th of August 2023.

SUMMARY OF RELEVANT EVIDENCE

Applicant’s Submissions

15. The Applicant submitted that on the 7th of April 2023, guests attending a party held at
unit 33 had parked vehicles in places where same was not permitted as per the
scheme’s rules, and as such when they were instructed to move the cars, her
stationary car was hit and none of the visitors took responsibility for the same.

16. The Applicant further submitted that upon noticing the damages on her car, she
opened a case with the police and reported the matter to the scheme’s security guards
and requested to be granted access to the estate’s security surveillance system.

17. According to the Applicant, on the 14th of April 2023, she was provided with selective
footage which covered events of the day of the incident from 17h00 and that when she
requested to be provided for the footage for the whole day, she was advised that there
is an override.

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18. The Applicant submitted that the owner of unit 33 is one of the Directors and as such
she believes that is the reason, she is victimised by the Respondent by their refusal to
provide her with the footage covering the events for the whole day.

Relief sought by the Applicant.

19. Wherefore the Applicant seeks relief under the following terms.

(a) An apology for the manner in which she is being treated.

(b) An order directing due diligence in investigating the matter.

(c) Access to the camera footage.

(d) The Applicant further seeks an order for damages, if the relief sought in (a) to (c)
listed above, is not adhered to.

Respondent’s Submissions

20. The Respondent submitted that a USB was provided, however the footage requested
by the Applicant was more that 20Gigs and as such the footage was thereafter loaded
to a cloud base drive and she was advised to download the same, to which she
responded by expressing her unhappiness as she wanted the whole day’s footage.

21. The Respondent further submitted that the reason that only footage from late
afternoon was provided was due to the fact that the system is a small DVR drive and
as such it does not keep that much of footage and overrides the footage and records
again new events.

Relief sought by the Respondent.

22. None submitted.

EVALUATION & FINDING

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

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24. 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.

25. In prayers (a) and (b), the Applicant seeks an order directing the Respondent to issue
her with an apology for the manner she has been treated and that there be due
diligence in investigating her compliant.

26. To enable the writer to make a finding relating to the relief sought by the Applicant
against the Respondent, it is prudent to establish whether there is a lawful or
alternatively a reasonable basis on which the relief prayed for by the Applicant may be
granted.

27. The relief sought by the Applicant, is not relief that is competent for an Adjudicator to
grant in terms of Section 39 of the CSOs Act.

28. Section 38(3)(a) of the CSOS Act specifically states that the application to CSOS for
dispute resolution must include statements that set out the relief sought by the
Applicant, and in addition, the relief sought must be within the scope of one or
more of the prayers for the relief contemplated in section 39 of the Act.

29. Should any of the relief fall outside of the scope of the prayers of the relief as set out
in section 39 of the Act as aforesaid, then the Adjudicator is not empowered to grant
an order in terms of the Act.

30. The Western Cape High Court in the case of Trustees for the Time Being of the
Avenues Body Corporate vs Shmaryahu and Another (A31/2018) [2018]
ZAWCHC 54 2018 (4) SA 566 (WCC) (10 May 2018) add paragraph [17], held that
“the character of the various types of substantive relief that an Adjudicator is empowered to
grant in terms of the Act appears from the provisions of Section 39”.

31. The court further held at paragraph [18] that “It provides for the possibility of a number of
different types of orders being made in respect of seven expressly specified categories of
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issues; viz (i) financial issues, (ii) behavioural issues, (iii) scheme governance issues, (iv)
issues in respect of meetings, (v) in respect of management services, (vi) in respect of works
pertaining to private and common areas and (vii) in respect of general and other issues. It is
evident from the character of each of the categories of issues that they pertain primarily to
matters germane to the community schemes, and only incidentally to related personal or
individual interests or rights”.

32. The Gauteng High Court in the case of Melusi Emanual Ncala vs Park Avenue Body
Corporate, (A3029/2019) [2019] (9 May 2022) at paragraph [208], the learned judge
opined “In my view the orders explicitly referenced in section 39(7) do not, however, support
an understanding that the Service is empowered to make any orders of a general nature which
are not explicitly referenced in the rest of section 39.”

33. In the same paragraph the court further held, “Section 39(7)(b) is also, strictly speaking,
not a general order or power. It states that, apart from any other orders explicitly reference in
section 39, the Service may only make any others proposed by the Chief Ombud. In other
words, in so far as the Chief Ombud is apparently empowered to propose a further, this order
would also have to be explicitly set out.”

34. From the submissions made by the Applicant it is evident that the relief sought by the
Applicant, does not fall within any of the categories as set out in Section 39 of the
CSOS Act.

35. The Court in Evergreen Investment (Pty) Ltd v Messerschmidt 2019 (3) SA 481
(GP) quoting from the Road Accident Appeal Tribunal v Gouws 2018 (3) SA 413
(SCA) held that: “Repositories of power can only exercise such power as had been conferred
upon them by law”.

36. The Adjudicator is not empowered in terms of the applicable legislative framework to
make an order as per the relief sought by the Applicant.

37. CSOS is a creature of statute, and the Adjudicator is bound to make orders that are
competent and enforceable in terms of the Act.

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38. The Applicant’s complaint against the Respondent in respect of her prayers in (a) and
(b), is misconceived and accordingly, is dismissed in terms of section 53(1) (a) of the
CSOS Act.

39. Turning my attention to the Applicant’s prayer in (c), wherein she seeks an order
directing the Respondent to provide her access to the camera footage.

40. Section 39 (7) (a) of the CSOS Act makes provision for the following competent order
to be handed down by an Adjudicator, “an order declaring that the applicant has been
wrongfully denied access to information or documents, and requiring the association to make
such information or documents available within a specified time.”

41. It is to be noted that the scheme’s rules do not provide a process for members to
access the association’s records.

42. In issuing this order, readers are referred to section 26 of the Companies Act, under
the heading ‘Access to company records’ which provides, “26. (1) A person who holds
or has a beneficial interest in any securities issued by a company— (a) has a right to inspect
and copy the information contained in the records of the company— (i) mentioned in section
24(3)(a), (b), (c)(i) and (ii), (d) and (e); or (ii) contemplated in section 24(4)(a) or (b); (b) has a
right to any other information to the extent granted by the Memorandum of Incorporation, as
contemplated in subsection (2); and (c) may exercise the rights set out in paragraph (a) or
(b)— (i) by direct request made to the company in the prescribed manner, either in person or
through an attorney or other personal representative designated in writing; or (ii) in accordance
with the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000).

43. The above provision must read in conjunction with section 26(2) of the same Act, which
provides, “In addition to the information rights set out in subsection (1)(a), the Memorandum
of Incorporation of a company may establish additional information rights of any person, with
respect to any information pertaining to the company, but no such right may negate or diminish
any mandatory protection of any record, as set out in Part 3 of the Promotion of Access to
Information Act, 2000 (Act No. 2 of 2000).

44. It is evident from the above provisions that members of the company such as the
Applicant are entitled to records kept by the association, however having noted the
submissions as filed by the Respondent confirming that the video footage as sought
by the Applicant is not available as the system overrides the recordings when saving

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same files, it goes without saying that the Respondent does not have the whole day’s
recordings as requested by the Applicant.

45. It must be further noted that by own admission, the Applicant has acknowledged
receipt of the footage, albeit the same not covering the whole day, hence her
unhappiness as confirmed by the Respondent.

46. It is common cause that the Respondent cannot provide records which are non-
existent.

47. It follows that the Applicant has not succeeded in making a case for the order to be
granted.

48. Accordingly, the relief sought by the Applicant in terms of sections 39(7)(a) of the
CSOS Act, is dismissed.

49. As an ancillary order, the Applicant seeks damages if her relief is not granted.

50. It is my considered view that the same falls outside the scope of section 39 of the
CSOS Act.

51. Readers are referred to the Western Cape High Court’s decision of 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), which 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.”
(my own emphasis.)

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52. Should any of the relief fall outside of the scope of the prayers of the relief as set out
in section 39 of the Act as aforesaid, then the Adjudicator is not empowered to grant
an order in terms of the Act.

53. The court further held at paragraph (29) that, “In addition, to allow the Trust to proceed in
terms of s 39(6)(b)(ii) would allow it to claim delictual damages without showing any fault on
the part of the body corporate, in circumstances where it was the one at fault, and where it
was responsible for being unable to claim any compensation by way of an indemnification in
terms of the scheme’s insurance policy. Had this been a delictual claim which required
determination in a Court it would have been defeated on these grounds i.e., on the basis that
it had not been shown that the body corporate had been at fault and that its conduct, as
opposed to that of the Trust, had caused the loss which had been suffered. This too could
never have been intended by the law-maker, and to allow a claim in such circumstances
would subvert the basis and principles of delictual claims for damages.” (my
emphasis.)

54. It is the Adjudicators finding that the abovementioned High court decision supports the
view that the relief sought by the Applicant in respect of the second part of her prayers,
is not relief that would be competent for an Adjudicator to grant in terms of Section 39
of the CSOs Act.

55. The relief sought by the Applicant is misconceived and accordingly, is dismissed in
terms of section 53(1)(a) of the CSOS Act.

COSTS

56. No order as to costs.

ADJUDICATION ORDER

57. In the circumstances, the following order is made:

(a) The relief sought by the Applicant against the Respondent is misconceived and
accordingly, is dismissed, in terms of section 53 (1) (a) of the CSOS Act.
(b) No order is made as to costs.

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RIGHT OF APPEAL

58. 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 15TH DAY OF AUGUST 2023.

_____________
N FOCA
ADJUDICATOR

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