Charles A Neser v Department of Human Settlements

Charles A Neser, described as the managing agent of Presidenthof Body Corporate, lodged an application with the Community Schemes Ombud Service (CSOS) under section 38 of the Community Schemes Ombud Service Act 9 of 2011 seeking financial relief under section 39(1)(e). He sought an order directing the Department of Human Settlements, the owner of unit 3 in Presidenthof Body Corporate, to pay alleged arrear levies of R3 890.41. The application was supported by various documents, including minutes of trustees' meetings dated 25 November 2021, but it did not include a body corporate resolution authorising the lodging of the dispute with CSOS. The respondent was served with a section 43 notice on 27 September 2022 but filed no response, and the matter proceeded directly to adjudication after a certificate/non-resolution process. The adjudicator considered the matter on the papers.

• Whether the managing agent had standing or was a person materially affected by the dispute for purposes of section 38 of the CSOS Act.
• Whether a CSOS application brought on behalf of a body corporate is competent without a trustees' or executive committee resolution authorising the lodgement of the application.
• Whether the application complied with the CSOS Act and the CSOS Practice Directive on Dispute Resolution, 2019.
• Whether, despite the respondent's failure to oppose, the adjudicator could grant financial relief where the application was procedurally defective.

The application was dismissed. No order as to costs was made.

A CSOS application brought on behalf of a community scheme must comply with the CSOS Act and Practice Directives by including proper authorisation, including a resolution of the scheme's executive body where required. A managing agent acting merely in a representative capacity, without such written authority and without showing that he or she is materially affected in terms of section 38, lacks the necessary basis to maintain the application. Non-compliance renders the application defective and liable to dismissal even if unopposed.

The adjudicator made general observations about the evaluation of evidence, including that relevant evidence must be assessed on a balance of probabilities with regard to credibility and probabilities. The order also noted the statutory right of appeal to the High Court under section 57 of the CSOS Act on a question of law only. No substantial further obiter comments were developed beyond these procedural observations.

The decision underscores that CSOS adjudication is a statutory process requiring strict compliance with standing and authorisation requirements. It illustrates that a managing agent cannot simply institute proceedings for recovery of levies in the absence of a proper body corporate resolution and proof of authority. It also confirms that an undefended application may still fail if the applicant does not satisfy the jurisdictional and procedural requirements imposed by the CSOS Act and Practice Directives.