Anand Thilakchand v The Trustees of Casa Viola Body Corporate

The applicant, Anand Thilakchand, is an owner of a unit in Casa Viola Body Corporate in Blouberggrant, Cape Town. He complained that the respondent trustees proceeded with a painting project at the complex without a special general meeting and without an approved budget for that project. He relied on AGM minutes of 13 June 2019, which he said indicated that the project would be addressed in 2020, yet the trustees went ahead despite owner objections. He sought orders that the trustees be held accountable for maladministration, that the managing agent also be held accountable for releasing funds on an unapproved project, and that he be awarded R5 000 for time spent and for the additional contribution he allegedly had to make because the respondent chose the highest quote. The respondent contended that the 10-year maintenance plan had been approved at the 2019 AGM, that sufficient funds existed, that four quotations were obtained on a full specification, that owners were notified, and that due process had been followed. The matter came before the CSOS adjudicator after conciliation failed and a certificate of non-resolution had been issued.

• Whether the relief sought by the applicant fell within the categories of relief an adjudicator is empowered to grant under section 39 of the Community Schemes Ombud Service Act 9 of 2011.
• Whether the adjudicator could determine allegations of 'maladministration' and hold the trustees and managing agent accountable in the manner requested by the applicant.
• Whether the application, insofar as it effectively sought to challenge a 2019/2020 resolution or decision, was brought outside the 60-day period in section 41 of the CSOS Act.
• Whether, absent an application for condonation under section 41(2), the adjudicator had jurisdiction to entertain the challenge.
• Whether the adjudicator had power to award the applicant compensation/costs of R5 000 for time spent and alleged extra contributions.

The application was dismissed. The adjudicator ordered that the reliefs sought by the applicant are refused, with no order as to costs.

A CSOS adjudicator may grant only relief that falls within the express categories in section 39 of the CSOS Act. Relief seeking to hold trustees or a managing agent 'accountable for maladministration' in a fault-based or quasi-delictual sense falls outside that statutory mandate and is for a court of competent jurisdiction. Further, an application to declare a decision or resolution void must be brought within 60 days under section 41, unless condonation is sought and granted; absent condonation, the adjudicator lacks authority to entertain the challenge. CSOS also cannot award the applicant personal compensation or costs contrary to the Practice Directive requiring parties generally to bear their own costs.

The adjudicator observed that maladministration implies serious mismanagement of funds and possible dishonesty, and for that reason such relief would require proof of fault in a court of law. The adjudicator also noted, more generally, that issues raised in submissions about water meters and levy increases could not be considered because they were not part of the original application and no amendment had been authorised under section 45. These observations were ancillary to the dispositive findings on jurisdiction and lateness.

The decision is significant for community schemes disputes because it underscores the limited statutory jurisdiction of CSOS adjudicators. It confirms that CSOS may grant only relief expressly authorised by section 39 of the CSOS Act; it is not a forum for general findings of maladministration, damages, or fault-based liability better suited to a court. The ruling also highlights the importance of complying with the 60-day time limit in section 41 for challenges to decisions or resolutions, and the need to seek condonation where the application is late.