Ashwini Singh, LL.M.
Ashwini Singh is a multidisciplinary author and academic whose writing has been featured in The Star, The Witness, and the Cape Argus. Enriched by 15 years as an expat in the UAE, she is an alumna of the American Community School of Abu Dhabi who honed her expertise by earning qualifications in Medical Law (LL.M.), Forensic Investigation & Criminal Justice (PG Dip.), Communication Science (B.A.), and English teaching (TESOL). Ashwini is currently an affiliate of the ACFE® South Africa and an associate of the Professional Editors’ Guild. Alongside her occupational pursuits, she actively engages in volunteering, trains in Goju-Ryu karate, and is an avid photographer.
With the proliferation of sectional title schemes in South Africa in the last two decades, the promulgation of the Sectional Titles Schemes Management Act 8 of 2011 and the Community Schemes Ombud Service Act 9 of 2011 attests to the necessity to regularise the management of these schemes. However, the management of a sectional title cannot be performed without the cognisance and application of statutory obligations.
Sectional title management and conduct rules
Unsurprisingly, sectional title schemes have become an attractive choice for letting, resulting in an exponential increase in owners opting to earn rental income from tenants.
As the name denotes, a sectional titles scheme comprises multiple sections owned by different owners. If a section is allocated an Exclusive Use Area (EUA), then the section and its EUA both form a unit. Whereas, the land in a sectional title scheme that is not allocated to a specific section is the common property.
All section owners in a scheme are considered the scheme’s body corporate. A body corporate is obligated to perform functions under the Sectional Titles Schemes Management Act 8 of 2011 (STSM Act) and its regulations. Additionally, a scheme can have its own management and conduct rules that bind the scheme’s owners and occupiers. However, the implementation of a scheme’s management and conduct rules is subject to existing statutes and the common law.
The Community Schemes Ombud Service
When a scheme’s body corporate fails to exercise its duties lawfully, affected parties (such as aggrieved owners and occupiers) are entitled to lodge an application for dispute resolution with the Community Schemes Ombud Service (CSOS).
The CSOS possesses the authority to adjudicate and order a body corporate to be compliant in terms of Section 39 of the CSOS Act 9 of 2011. Depending on the nature of the relief granted, an adjudication order from the CSOS can be enforced in either the Magistrate’s Court or the High Court, affirming the binding nature of these orders.
One type of rule that has been condemned in recent adjudication orders is those relating to fines, more so the unlawful implementation of fines on owners and occupiers in a scheme.
Baribi v Victory Court Body Corporate
In the 2023 CSOS case of Baribi v Victory Court Body Corporate (CSOS 6541WC23), the Applicant (Baribi) sought an adjudication order against the Respondent (Victory Court Body Corporate) on the basis of a wrongfully issued fine.
In this matter, the Applicant submitted that the Respondent accused the tenant’s dog of defecating in the scheme’s common property without evidence. The Applicant further submitted that the Respondent failed to follow a fair legal process and simply issued a fine based on the Respondent’s assumption.
The Respondent filed an answering written submission defending the fine that was issued on the grounds that the Applicant had allegedly committed other prior contraventions of the rules. The Respondent had therefore assumed the defecation allegations levelled at the Applicant to be a further breach of the scheme’s rules.
The CSOS Adjudicator, having tendered evidence from both parties, arrived at the conclusion that it was unreasonable of the Respondent to issue a fine against the Applicant without evidence proving the allegation on which the fine was based. As a result, the Adjudicator ordered the Respondent to remove the Respondent’s fine from the Applicant’s levy statement.
In Paragraph 55 of the adjudication order, the Adjudicator writes, “…The fact that the Respondent has other allegations does not justify fining the Applicant in this allegation. Each allegation must be dealt with on its own merits and with evidence.”
Summarily, this CSOS adjudication outcome advocates the importance of body corporates relying on the basic legal requirement of evidence in proving any claim of transgression of a scheme’s management or conduct rules prior to instituting any action against the alleged contravention.
Swanepoel v Trustees of Labella Complex Body Corporate & Residentia Trust
Similarly, in the 2023 CSOS case of Swanepoel v Trustees of Labella Complex Body Corporate & Residentia Trust (CSOS 1723/WC/23), the Applicant (Swanepoel) submitted that he was instructed to remove a filing cabinet from his balcony due to the Respondent (Trustees of Labella Complex Body Corporate & Residentia Trust) alleging that the cabinet was aesthetically displeasing and considered to not be outdoor furniture.
The Applicant stated that he moved his cabinet to another position on his balcony behind a wooden trellis, where his cabinet would not be visible. Despite moving his cabinet, the Applicant received a letter from the Respondent alleging that he breached one of the scheme’s conduct rules. The Respondent then instituted a fine against the Applicant by debiting the Applicant’s levy account.
In the Respondent’s written submission, the Respondent asserted that they acted within their powers entrusted to them under the STSM Act by issuing a letter to the Applicant because they believed the Applicant had not complied with the removal of his cabinet from his balcony.
In the adjudication order, the Adjudicator reviewed the reasonableness of the actions of the Respondent and concluded that the matter relied on the interpretation of the conduct rule (which was in favour of the Applicant) and the fact that debiting the Applicant’s levy account is in contravention of Prescribed Management Rule 25(5) of the STSM Regulations 2016.
Consequently, the Adjudicator ordered the Respondent to remove the fine issued against the Applicant, which highlights the importance of a body corporate reasonably interpreting and applying its rules as well as complying with the underlying provisions of the STSM Act and its regulations.
Body corporates must follow a fair legal process
Conclusively, the two recent adjudication orders released by the CSOS demonstrate that in the enforcement of a scheme’s management and conduct rules, a body corporate must adhere to a process that is fair and abides by the law.
Invariably, owners will exercise the right to challenge adverse decisions taken by body corporates via judicial bodies such as the CSOS. As a consequence, the soundness of a body corporate’s decision will be examined by an adjudicator with the foremost consideration being placed upon whether or not a body corporate’s actions were legally compliant.,