Barczuk v Trustees of Fernways Body Corporate

The applicant, Renee Barczuk, is the registered owner of unit 9 in Fernways Body Corporate. She alleged that the scheme suffered from major drainage defects which caused structural deterioration of a boundary wall forming part of the common property, flooding of her garage, and damp in her unit. She said she had repeatedly complained to the trustees, and that an inspector who attended on 9 May 2023 determined that the wall was structurally unsound and needed to be broken down and moved to allow adequate drainage. According to her, after the body corporate failed or refused to act, she removed some loose bricks from the wall with the permission of the managing agent and a trustee during an inspection. She was thereafter fined for allegedly defacing common property, and also fined for aggressive behaviour toward an owner/trustee. She contended that the fines were malicious and procedurally unfair, and sought orders rescinding the fines, sanctioning the body corporate for malicious conduct, and directing the respondent to remedy the drainage, wall and damp problems. The respondent did not file a response.

• Whether the applicant proved, on a balance of probabilities, that the fines imposed by the body corporate were malicious, irregular, unreasonable or imposed through improper procedure.
• Whether an adjudicator under section 39 of the Community Schemes Ombud Service Act 9 of 2011 has jurisdiction to order that a body corporate be fined for alleged malicious conduct.
• Whether the applicant's request relating to drainage defects, common-property walls and damp fell within the repair powers under section 39(6)(b) of the CSOS Act or amounted in substance to an impermissible delictual damages claim.
• Whether the application lacked substance or was misconceived for purposes of section 53(1)(a) of the CSOS Act.

The application was dismissed. Specifically, the relief sought by the applicant against the respondent was dismissed; the application was held to lack substance and to be misconceived in terms of section 53(1)(a) of the CSOS Act; and there was 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 punish a body corporate for alleged malicious conduct is not competent under the Act. Further, where a claim concerning defects, drainage, walls or damp is in substance a delictual claim for damages or compensation requiring determinations of wrongfulness, fault and causation, it falls outside CSOS adjudicative jurisdiction and must be pursued in court. An applicant remains obliged to prove on a balance of probabilities that fines or conduct complained of were unlawful or unreasonable.

The adjudicator observed, with reference to precedent, that the powers conferred by section 39 primarily concern regulatory, governance and behavioural matters internal to community schemes, and only incidentally affect personal rights. The order also noted the statutory right of appeal to the High Court under section 57 of the CSOS Act, but only on a question of law. Because the reasons are not extensively developed beyond jurisdiction and proof, there is limited distinct obiter in the order.

The decision is significant for confirming the limited, statute-bound jurisdiction of CSOS adjudicators. It underscores that adjudicators may grant only the forms of relief expressly listed in section 39 of the CSOS Act, and cannot impose punitive sanctions outside that framework or determine delictual damages claims disguised as repair or maintenance disputes. The matter also illustrates that even where a respondent files no answering papers, an applicant still bears the burden of proving entitlement to relief on the evidence.