Anthony Pandaram v Trustees of SS Birches Body Corporate

Anthony Pandaram, the owner of Unit 401 in SS Birches, a residential sectional title scheme, applied to the Community Schemes Ombud Service (CSOS) under section 38 of the Community Schemes Ombud Service Act 9 of 2011. He alleged that many members of the body corporate were in arrears with their levy contributions and sought access to the body corporate's levy arrears report for February to August 2022 in order to understand the extent of the defaults and what steps the trustees and managing agents were taking to address them. He stated that a previous similar CSOS application had been dismissed on a technicality, but the information had still not been provided. The trustees, through the managing agent, opposed the application, contending generally that various statutes, including privacy and access to information legislation, prevented disclosure because members had a right to privacy. No specific statutory provisions were identified by the respondent to support that contention.

• Whether a unit owner/member of a body corporate is entitled to inspect and copy the body corporate's financial records, including a levy arrears report, under the STSMA and prescribed management rules.
• Whether privacy-related legislation such as POPIA, PAIA and PAJA prevents a body corporate from disclosing levy arrears information to an owner/member of the scheme.
• Whether the applicant had been wrongfully denied access to documents for purposes of section 39(7)(a) of the CSOS Act.

The application succeeded. In terms of section 54(1)(a) read with section 39(7)(a) of the CSOS Act, the respondent was ordered, within 30 days of the granting of the order, to provide the applicant, at his own expense, access to the levy arrears report of the body corporate for February 2022, March 2022, April 2022, May 2022, June 2022, July 2022 and August 2022. No order as to costs was made.

Under Prescribed Management Rule 26 of the STSMA, a body corporate must keep proper financial records and, on application by a member, make its books of account and records available for inspection and copying. A levy arrears report forms part of such financial records, and absent a specific legal prohibition, a body corporate may not refuse a member access to it by making generalized references to privacy-related legislation. Accordingly, refusal of such access constitutes a wrongful denial remediable under section 39(7)(a) of the CSOS Act.

The adjudicator observed that once the applicant gains access to the information, he must use it bona fide and in line with privacy legislation. This comment was cautionary and not essential to the decision granting access. There is also an internal inconsistency in the order where one part references section 39(7)(b) while the body of the reasons and final order refer to section 39(7)(a); the adjudicator's substantive reasoning clearly proceeded on wrongful denial of access to documents.

The adjudication affirms, in the community schemes context, that members of a sectional title body corporate have a real and enforceable right to inspect the scheme's accounting records, including levy arrears information, under the STSMA prescribed management rules. It is significant because it rejects vague reliance on privacy legislation as a basis for withholding financial records from members and reinforces transparency and accountability in the administration of sectional title schemes.