In this article, we summarize 5 adjudication orders of the CSOS and while doing so refer to certain legislation and lessons to learn in respect of such orders:
1. TRUSTEES INSTRUCTING ATTORNEYS/FIDUCIARY POSITION OF TRUSTEES
Sukhoo vs Strydom and Mandy, CSOS000385/GP/19:
Sukhoo, the applicant owner, sought an order against Strydom and Mandy in their
personal capacities, to pay back legal fees of some R45 000.00, expended by them,
while acting as trustees. The owner claimed that the legal fees were spent on personal
matters that did not involve the body corporate and that the authority of the owners
should have been obtained before payment of these legal fees was made.
The trustees explained that the legal costs were in respect of 2 civil matters and a
defamation case, which had been handled by the body corporates attorneys, arising
out of the assault of an employee of the body corporate. The trustees had obtained
legal advice confirming that the legal fees could be incurred, as the employee was
acting on behalf of the body corporate and on instructions of the trustees and as the
trustees were cited in the civil matter by the perpetrator of the assault. The trustees
also explained that, no directions or restrictions had been placed on the trustees in
terms on S7(1) of the STSMA.
The adjudicator confirmed that the trustees were entitled to appoint an employee in
terms of PMR 9(d). Further that the employee was acting in the course of his
employment when the assault occurred and that the trustees were acting in their official
capacities when dealing with the matter and not in their personal capacities. Therefore,
in terms of S8(3) of the STSMA, the trustees had not breached their fiduciary
relationship and were not personally liable for the legal costs incurred. The adjudicator
dismissed the owner’s application.
Lesson to learn:
• The trustees must resolve to appoint attorneys – PMR9(b);
• Attorneys and employees must be appointed in terms of a written contract –
PMR9(d);
• The trustees must always act in accordance with – S8 STSMA (fiduciary
position of trustees) and S7(1) STSMA (restrictions and directions placed on
trustees);
• Legal fees expended, should be reported on at the AGM, in the trustees report
on activities and decisions – PMR 17(6)(j)(i).
2. CSOS RESTRICTING ELECTRICITY/SPOLIATION/PRE-PAID METERS
Eagle Breeze BC vs Khaas and Motsei, CSOS0001810/GP/19:
The applicant BC sought payment of arrear contributions of some R40 000.00 from the
owners and an order that the BC could restrict the electricity supply to the owner’s
section by installing a 15-amp circuit breaker alternatively an order that a prepaid
electricity supply meter be installed by the owners.
The owners seemed to agree to the installation of the prepaid electricity meter. The
BC stated it was willing to have a prepaid electricity meter installed at the owner’s
section, at the owner’s expense.
The adjudicator stated she was not permitted to reduce the electricity supply to the
owner’s section by installing a small circuit breaker, as this would amount to spoliation.
The adjudicator ordered the owners to make payment of the amount outstanding in
instalments, ruled that no interest would accrue on the outstanding amount, that the
usual future monthly levies and ancillary payments must still be paid by the owners
and that, the BC must install a prepaid electricity supply at the owner’s section, at the
BC’s cost, which cost could be debited to the owner’s levy account, to be paid by the
owners in the normal course.
Lesson to learn:
• The adjudicator’s ruling that an order by her, to restrict/reduce the electrical
supply, would amount to a spoliation, despite the fact that it would be carried
out, based on her CSO
S order (equivalent to an order of court);
• The ruling that a prepaid electricity meter be installed at the section, despite
this not being relief which the CSOS can grant in terms of S38 of the CSOSA.
• No reference was made by the adjudicator to PMR 29(4) which refers to
installation on the common property (as opposed to on the section, as in this
case) of pre-paid meters and which requires a special resolution of owners.
3. URGENT HEARING/SPOLIATION/BIOMETRIC ACCESS
Ramushu vs Midlands HOA, CSOS000333/GP/20:
The applicant owner approached CSOS to have the HOA restore to her full biometric
access. The owner since her biometric access was suspended, had to enter like a
visitor, by signing in with the security guard. CSOS heard this part of the application
urgently.
The HOA’s defence was that in terms of section 41 of the CSOSA, the owner had to
bring the application within 60 days of the decision being taken to remove the biometric
access of the owner, and that this was not done timeously.
The adjudicator stated that unrestricted access to the scheme and to the owner’s home
is part and parcel of the owners right of ownership and that only a court could restrict
such access. The adjudicator while taking note of the lapse of the 60-day period ruled
that the owner’s application could not be dismissed on these grounds, as spoliation
cannot be justified in any circumstances. The adjudicator ordered reinstatement of full
and unhindered biometric access, by the HOA to the owner.
Lesson to learn:
• Schemes cannot, without a court order, restrict access of owners, by removing
them from the biometrics, and making them sign in as visitors.
4. PETS/CONDUCT RULES NOT ALLOWING CERTAIN PETS/SETTING ASIDE A CONDUCT RULE
Van Niekerk vs Ireland Gardens BC, CSOS 736/GP/17:
The applicant owner approached CSOS wanting to keep a kitten on the bases that the
existing conduct rule, not allowing cats (dogs were allowed) was unconstitutional and
not binding. The owner wanted the rule amended on the bases that the rule
discriminates against cats and the owner’s constitutional rights as a person. The
applicant wanted both cats and dogs to be treated equally and reasonably. Reference
was made to the legislation that a conduct rule must be reasonable and apply equally
to all owners of units.
The body corporate stated that over time many complaints were received about cats,
such as eating food in other people’s sections and climbing on a bed of a child who
was allergic to cat hair, which led to the complex amending its conduct rules by a
special resolution of owners and prohibiting cats.
The adjudicator ruled that the problem with the rule not allowing cats was that it
constituted a ban on keeping certain animals which affected the use of and enjoyment
of sections by owners who love such banded animals and therefore rendered the rule
unreasonable and not of equal application. The adjudicator ruled the rule not allowing
cats unreasonable and set aside the rule.
Lesson to learn:
• Regulation 6 of the management regulations was referred to, which states that
rules must be considered to be and interpreted as laws made by and for the
BC;
• S10 (3) STSMA ‘rules must apply equally to all owners’ was interpreted to mean
that cat loving owners, should be allowed cats, like dog loving owners, who are
allowed dogs.
5. NEGATIVE AESTHETIC APPEARANCE OF THE COMPLEX (ALTHOUGH OLD
PMR 68 (iv), HARMONIOUS APPEARANCE IS NO LONGER APPLICABLE)
Venter vs The Trustees of Cerf BC, CSOS00420/KZN/17:
The applicant owner wished to install an air-conditioning unit on the patio of her unit.
The Trustees had approved the installation of the air-conditioner, not on the patio but
rather at the back of the scheme. The patio of the owner was part of the owner’s section
and only the narrow side of the air-conditioner was visible to third parties.
The adjudicator ruled that the positioning of the air-conditioning unit on the owner’s
patio would have no negative aesthetic appearance to the scheme and would not
inconvenience any other occupant. The adjudicator ruled that the refusal by the
trustees to allow the owner permission to put the air-conditioning unit on the floor of the owner’s patio was unreasonable and unfair and allowed the applicant to install the air-conditioning unit on the patio.
Lesson to learn:
• PMR 30 (e), an owner may not do anything to a section that has a material
negative effect on the value of any other section.
