CSOS1946/GP/23

ADJUDICATION ORDER IN TERMS OF SECTION 54

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

Ref: CSOS1946/GP/23

IN THE MATTER BETWEEN

CHERYL JOHN APPLICANT

and

MARK PAKKARI 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- (i) to carry out specified repairs, or have
specified repairs made.”

• Date Adjudication conducted:

2 OCTOBER 2023.

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• Name of the Adjudicator:
N. FOCA.

• Order:
In the circumstances, the following order is made:
(a) The relief sought by the Applicant against the Respondent in terms of section
39(6)(b)(i), is upheld.
(b) The Respondent is ordered to, within 14 (fourteen) days from the date of issuing
this order: (i) reseal his unit’s the bathtub and wall tiles and waterproof his
balcony as per the recommendations of the water leak detection’s report.
(c) No order as to costs.

INTRODUCTION

1. The Applicant is CHERYL JOHN, the registered owner of unit number 85 Serengeti
Sands, 1403 Eldoret Street, Sunninghill, Sandton, Gauteng Province.

2. The Respondent is MARK PAKKARI, the registered owner of unit number 91

Serengeti Sands, 1403 Eldoret Street, Sunninghill, Sandton, Gauteng Province.

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 (6) of the CSOS Act, is in respect
of works pertaining to private areas and common areas.

5. A letter requesting final submissions was sent to the parties confirming that due to the
current situation regarding the Covid-19 pandemic, the CSOS is taking the appropriate
precautions against the further spread of COVID-19 (Coronavirus) and is
adjudicating disputes on documents submitted, without the need to meet parties face
to face.

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6. 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”. Parties were requested to
make written submissions. The adjudication was conducted on the 2nd of October 2023
and an order is now determined.

PRELIMINARY ISSUES

7. No preliminary issues were raised.

RELEVANT STATUTORY PROVISIONS

8. 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”.

9. 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”.

10. 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”.

11. Section 47 provides-

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“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”.

12. 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”.

13. In terms of Section 50-

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

14. 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”.

15. 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 22nd of September 2023.

SUMMARY OF RELEVANT EVIDENCE

Applicant’s Submissions

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16. The Applicant submitted that on the 25th of September 2022, she noticed a wet spot
on her bathroom’s ceiling and immediately notified the Respondent, who owns a unit
above hers, who in turn advised that she must report same to the body corporate.
17. According to the Applicant, the Respondent took almost 5 months before he could
secure the services of a leak detector, who in turn was not able to find the problem.
18. The Applicant submitted that the delay in resolving the leakage problem resulted into
more damage on her unit’s ceiling and as a result the scheme’s managing agent
contracted a professional leak detection team who issued a report confirming the
Respondent’s unit’s to be the source of water ingress into her unit. (In this regard, a
copy of the leak detection services’ report was attached to the application.)
19. According to the Applicant, the Respondent had claimed that his plumber had repaired
the leak by applying silicone on his bathtub, however, the water continued to leak and
thereby caused damage to her unit.
20. The Applicant further submitted that all her attempts to have the Respondent resolving
the water leak emanating from his unit were unsuccessful.

Relief sought by the Applicant:

21. Wherefore the Applicant prays for an order directing the Respondent to repair the leak
so as to ensure a permanent resolution of the problem, as she is unable to repaint her
unit until the leak in the Respondent’s unit is fixed.

Respondent’s Submissions

22. The Respondent failed to file written submissions, despite the request for the same
which was issued by the CSOS Compliance Officer on the 12th of September 2023.

Relief sought by the Respondent.

23. No relief sought.

EVALUATION & FINDING

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.

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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. The Applicant seeks an order directing the Respondent to repair his unit’s bathtub leak
which is the source of water ingress into her unit.

27. 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.

28. Section 39 (6) (b) of the CSOS Act makes provision for the following competent order
to be handed down by an Adjudicator, “an order requiring the relevant person (i) to carry out
specific repairs, or have specified repairs made.”

29. In substantiating her claim, the Applicant submitted a copy of the water leak detection
expert’s report, dated the 17th of April 2023, which confirmed the source of the water
ingress to be the Respondent’s unit’s bathtub and balcony, and further recommended
the resealing of the bathtub and the wall tiles and as well as the waterproofing of the
balcony.

30. It is rather odd that despite the existence of the expert’s report with recommendations
on how the situation should be remedied, the Respondent failed to attend to the same,
to the detriment of the Applicant’s unit.

31. An owner’s duty to maintain is confined to a large extent to his or her section in terms of
section 13(1) of the Sectional Titles Schemes Management Act (STSMA).

32. I refer to section 13(1)(b) of the STSMA under the heading Duties of owner’s which
provides as follows, “forthwith carry out all 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 assessment that may be payable in respect of his or her
section”.

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33. Section 5(5) of the Sectional Titles Act 95 of 1986 (as amended), provides “ 5(5) For
the purposes of subsection (3)(d) the boundaries of a section shall be defined- (a) by reference
to the floors, walls and ceilings thereof, or as may be prescribed: Provided that any window,
door or other structure which divides a section from another section or common property, shall
be considered to form part of such floor, wall or ceiling; and (b) in respect of a part of a section
(such as a stoep, porch, balcony, atrium or projection) of which the boundaries cannot be
defined in terms of paragraph (a) but being appurtenant to a part of that section which can be
defined in terms of that paragraph, in the manner prescribed.”

34. Section 13(1)(c) of the aforesaid Act further provides as follows: “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”.

35. It is evident from the above provisions that the Respondent has the responsibility to
maintain and or repair his section.

36. Having considered the assessment report as submitted by the Applicant, I am satisfied
that the Applicant has proven on a balance of probabilities that she is entitled to the
relief sought against the Respondent as provided for in Section 39(6)(b)(i) of the
CSOS Act, accordingly, the relief sought by the Applicant is upheld.

37. The Applicants prayers for relief against the Respondent, is granted.

COSTS

38. There is no order as to costs.

ADJUDICATION ORDER

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

(a) The relief sought by the Applicant against the Respondent in terms of section
39(6)(b)(i) of the CSOS Act, is upheld.
(b) The Respondent is ordered to, within 14 (fourteen) days from the date of issuing
this order: (i) reseal his unit’s bathtub and wall tiles and waterproof his balcony
as per the recommendations of the water leak detection’s report.
(c) No order as to costs.

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RIGHT OF APPEAL

40. 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 10TH DAY OF OCTOBER 2023.

_________________
NO FOCA
ADJUDICATOR

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