Cecilie C. C. Smith-Christensen v Trustees of Shannondale (Bellairs & Solomons) Body Corporate and Steer and Company Managing Agent

The applicant, Cecilie Christine Charlotte Smith-Christensen, is the registered owner of Unit 202 in the Shannondale sectional title scheme in Cape Town. She brought an application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) against the trustees of the Shannondale Body Corporate and its managing agent, Steer and Company. Her complaint concerned alleged inconsistencies in the sectional title plans and levy scheme, particularly regarding exclusive use areas, the calculation of levies, and an unresolved maintenance issue relating to the balcony railing of Unit 202. She also sought relief concerning historical levy recalculations, governance concerns regarding the board of trustees, and an order that legal costs be borne personally by trustees. The matter first proceeded on written submissions. Although the written record initially reflected that the respondents had little further to add, the parties later requested an oral hearing, which was held on 6 October 2023 and then adjourned sine die to enable settlement discussions. On 23 November 2023, the applicant informed the adjudicator by email that, following constructive engagement with the board of trustees and the managing agent, she trusted the matter would be resolved and no longer wished to proceed with the application.

• Whether the applicant was entitled under section 39(1)(c) of the CSOS Act to an order declaring that the contributions/levies were incorrectly determined or unreasonable and requiring adjustment of the levy scheme.
• Whether the applicant was entitled under section 39(6)(a) of the CSOS Act to an order requiring repairs and maintenance concerning the balcony railing of Unit 202.
• Whether the adjudicator should grant the various forms of relief sought after the applicant indicated that she no longer wished to proceed with the claim.
• Whether any costs order should be made.

The relief sought by the applicant was refused, and no order as to costs was made.

Where an applicant in CSOS adjudication communicates that they no longer wish to proceed with the application, the adjudicator may refuse the relief sought and need not determine the substantive merits of the dispute. In the absence of reasons justifying a costs award, no order as to costs may be made.

The adjudicator’s discussion of the general principles regarding relevance of evidence, proof on a balance of probabilities, and credibility was not necessary to the ultimate disposition because the matter was decided on the applicant’s decision not to proceed. The recitation of the statutory provisions of the CSOS Act similarly served as background and did not produce a substantive ruling on the rights and obligations of the parties.

This matter illustrates the procedural operation of the CSOS dispute-resolution system under the CSOS Act, especially where a dispute is referred to adjudication but the applicant later elects not to pursue the claim after settlement discussions or constructive engagement. Its importance is procedural rather than jurisprudential: the adjudicator did not pronounce on the merits of levy determination, exclusive use areas, maintenance obligations, or body corporate governance. The case shows that where an applicant abandons or declines to proceed with the claim, the adjudicator may refuse the relief and dispose of the matter without making substantive findings.