Ncala v Park Avenue Body Corporate and Others

Mr Melusi Ncala, a visually impaired owner of a ground-floor unit in a sectional title scheme, made alterations to a common washing area adjacent to his unit, including installing a washing machine, piping, plastic roof sheeting and a security gate, to accommodate his disability and ensure safety. The Park Avenue Body Corporate objected, alleging the alterations contravened the conduct rules governing common property. After failed mediation and conciliation, the Community Schemes Ombud Service adjudicator ordered Mr Ncala to remove the washing machine and restore the area, while allowing the gate subject to a levy. Mr Ncala appealed under s 57 of the Community Schemes Ombud Service Act 9 of 2011, but lodged his appeal 67 days late and sought condonation. The High Court held it lacked jurisdiction to condone non-compliance with the statutory 30-day period and dismissed the appeal. Mr Ncala appealed to the Supreme Court of Appeal.

The appeal was upheld. The High Court’s order was set aside. The late filing of the appeal was condoned. The adjudicator’s award was replaced with an order declaring that Mr Ncala reasonably required exclusive use rights over part of the common wall, directing the Body Corporate to permit installation of a washing machine and protective covering at his cost, subject to maintenance obligations, payment of a levy equivalent to other owners with exclusive use, and removal and restoration upon cessation of occupation or membership.

The judgment clarifies the interpretation of s 57(2) of the CSOS Act and confirms that High Courts may condone the late filing of appeals despite the absence of an express condonation provision. It is significant for community schemes governance, access to courts, and the reasonable accommodation of persons with disabilities within sectional title schemes.