In a recent case, 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) was a statutory appeal in terms of the Community Schemes Ombud Services Act 9 of 2011 (the 'CSOS Act').

The adjudicator dismissed the application in limine because the relief sought fell outside of his statutory jurisdiction.

Background

The appellants were the trustees of the Harprag Trust, which owned unit 6 in the scheme, i.e. an individual section demarcated as such on the sectional plan, together with an undivided pro-rata share in the common property. The Trust is a member of the scheme's corporate body and was previously represented thereon by the first appellant as a trustee.

On 18 July 2019, a fire broke out in the section, which resulted in its destruction. The Trust submitted a claim for the repairs of the damage sustained to the scheme's insurers, but it was repudiated.

The insurers had settled a previous claim submitted by the Trust pursuant to a fire that had occurred in the section 2 years earlier, in July 2017. However, in September 2017, the insurers advised the body corporate that pending the filing of valid electrical and fire equipment certificates of compliance by all the owners of units in the scheme, insurance cover for damage caused by the fire would be suspended.

As a general rule of thumb, in a sectional title context, the body corporate is responsible for maintaining the common property whilst the areas of exclusive use are the owner's responsibility. Furthermore, it never intended that the Ombud could adjudicate upon such a claim in terms of the CSOS Act. The Act aims to resolve disputes regarding the administration of a community scheme between persons who have a material interest therein.

Moreover, according to the court, 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 section 39 of the Act, they either concern regulatory/governance issues pertaining to the administration of a sectional title scheme, or behavioural problems related to the conduct of members of the scheme inter se (which commonly would cover so-called nuisance or neighbour disputes).

It was not intended that the Ombud would have the power to adjudicate on delictual claims for damages. Claims involving considerations about wrongfulness (which depend on prevailing societal norms and public policy) and fault and the quantification and determination of the quantum of any damages. Matters of this nature are best left for judicial officers and Courts.

Conclusion

As a result, the appeal was dismissed. An adjudicator under CSOS Act does not have the jurisdiction to deal with delictual matters.

Written by Nicolene Schoeman-Louw, Managing Director, Schoeman Law