Cassim v The Palace Shareblock (Ltd) and First Group Management (Pty) Ltd

The applicant, Shereen Cassim, is a registered shareholder in The Palace Shareblock Ltd and the occupier of unit 1604, week 51, at The Palace Timeshare Resort in Durban. She had owned the timeshare interest for about 30 years and contended that when she purchased the unit she was told the timeshare endured for 99 years. She challenged the levies charged to her, alleging that they were incorrectly determined and seeking rectification and repayment of amounts she said exceeded R150,000. She also sought access to various documents, including her share certificate, the original memorandum/articles of association, a contract allegedly reflecting a 99-year duration, the insurance policy, levy accounts for the previous five years, and records showing what levies Flexi Club paid for its units. The respondents, being the share block company and its managing agent, opposed the application. They explained that levies were determined on a seasonal basis, with peak-season weeks such as weeks 51 and 52 attracting the same levy for comparable unit types, and stated that the MOI had already replaced the old articles of association and had been provided to the applicant. They further contended that the applicant had not properly pursued internal mechanisms for obtaining information before approaching CSOS.

• Whether the applicant proved that the levy contributions charged to her were incorrectly determined or unreasonable under section 39(1)(c) of the CSOS Act
• Whether the applicant was wrongfully denied access to documents or information under section 39(7)(a) of the CSOS Act
• Whether the applicant was entitled to obtain records relating to levies paid by Flexi Club despite lacking a beneficial interest in those records
• Whether the applicant had complied with the Companies Act procedures and CSOS Practice Directives requiring internal attempts to resolve the dispute before approaching CSOS
• Whether the applicant proved the existence of a 99-year lease or entitlement reflected in the historical documents she sought

The application was dismissed in terms of section 53(1) of the Community Schemes Ombud Service Act 9 of 2011. All substantive prayers for relief were dismissed, and no order as to costs was made.

An applicant seeking relief under section 39(1)(c) of the CSOS Act must prove on a balance of probabilities that the contribution levied was incorrectly determined or unreasonable; absent evidence establishing incorrectness or unreasonableness, no corrective order may be granted. Further, an applicant seeking access to documents under section 39(7)(a) must show that access was wrongfully denied and must ordinarily first use the internal and statutory procedures available under the Companies Act and the scheme's internal processes, as required by the CSOS Practice Directives. A shareholder is not automatically entitled through CSOS to third-party or other members' records, such as another entity's levy records, without a legal basis such as beneficial interest or proper consent.

The adjudicator observed that, notwithstanding section 32 of the Constitution and PAIA, an applicant should remain mindful of the Protection of Personal Information Act, which may restrict disclosure of personal information without the data subject's consent. The adjudicator also remarked that any historical monetary claim over a 30-year period would in any event be affected by prescription, although this was not the sole basis for dismissal.

The matter is significant in illustrating the limits of CSOS relief where an applicant fails to prove that levies are unreasonable or incorrectly determined and where internal statutory mechanisms for access to company records have not first been used. It also demonstrates the interaction between the CSOS Act, the Share Blocks Control Act, the Companies Act, PAIA, and POPIA in disputes involving share block schemes. The order underscores that CSOS is not a substitute for proper internal requests for records or for speculative allegations unsupported by evidence.