Ramsunder Bharat v Gauteng Managing Agent

The applicant, Mr Bharat Ramsunder, is the owner of Unit 14 in Swallow Nest Body Corporate, a sectional title scheme in Gauteng. He alleged that the ceiling in his garage collapsed, creating a safety hazard and preventing him from parking his vehicle there. He approached the Community Schemes Ombud Service (CSOS) under section 38 of the Community Schemes Ombud Service Act 9 of 2011, seeking relief under section 39(6)(b), namely an order that the body corporate and trustees pay for the full repairs to the ceiling. However, in his application he cited only the Gauteng Managing Agent as respondent. No submissions were filed by the respondent.

• Whether the applicant had cited the correct respondent(s) for the relief sought under section 39(6)(b) of the CSOS Act.
• Whether an adjudicator could grant relief against trustees/body corporate where they had not been joined or given notice of the proceedings.
• Whether the application was misconceived and therefore liable to dismissal under section 53(1)(a) of the CSOS Act.
• Whether the papers contained sufficient material to determine liability for the repairs, including the distinction between common property and exclusive use areas.

The application was dismissed for the reasons set out in paragraph 32 of the order. No order as to costs was made. The adjudicator indicated that the applicant is free to relaunch the application after citing the correct parties.

In CSOS proceedings, an adjudicator cannot grant substantive relief against trustees or a body corporate where those parties have not been cited or afforded an opportunity to be heard. An application that seeks relief against the wrong respondent and fails properly to join the legally responsible parties is misconceived and may be dismissed under section 53(1)(a) of the CSOS Act. The applicant bears the onus of presenting sufficient facts and documents to establish entitlement to the relief claimed, including the legal basis for repair liability within a sectional title scheme.

The adjudicator observed that the applicant appeared to have approached the correct forum, citing case law that CSOS is the primary forum for such disputes. The adjudicator also remarked that the applicant would need to distinguish carefully between common property and exclusive use under the STSMA and section 5(4) and 5(5) of the Sectional Titles Act. The statement that the applicant is at liberty to relaunch the application after citing the correct parties was also non-dispositive guidance rather than part of the binding reasoning.

The matter underscores the procedural importance in CSOS proceedings of citing the correct parties and ensuring that relief is sought against persons or bodies who have legal responsibility and who have been given notice and an opportunity to be heard. It also illustrates that, even in informal CSOS adjudication, applicants bear the onus of providing sufficient evidence and properly framing the dispute, including identifying whether the area in question is common property or exclusive use area. The order reflects the application of audi alteram partem and confirms CSOS as the primary forum for sectional title/community scheme disputes.