Cheryl John v Mark Pakkari

The applicant, Cheryl John, is the registered owner of Unit 85 in Serengeti Sands, Sunninghill, Sandton. The respondent, Mark Pakkari, is the registered owner of Unit 91, situated above the applicant's unit. On 25 September 2022 the applicant noticed a wet spot on her bathroom ceiling and informed the respondent. The applicant alleged that the respondent delayed addressing the problem for several months. A leak detector initially engaged by the respondent did not identify the source. Thereafter, the scheme's managing agent appointed a professional leak detection team, whose report dated 17 April 2023 concluded that the source of the water ingress into the applicant's unit was the respondent's bathtub and balcony. The report recommended resealing the bathtub and wall tiles and waterproofing the balcony. The applicant stated that although the respondent claimed a plumber had applied silicone to the bathtub, the leak continued and caused ongoing damage to her unit. The respondent did not file written submissions in the adjudication.

• Whether the applicant had proved on a balance of probabilities that water ingress into her unit originated from the respondent's section.
• Whether the adjudicator was empowered under section 39(6)(b)(i) of the Community Schemes Ombud Service Act 9 of 2011 to order the respondent to carry out specified repairs.
• Whether, under the Sectional Titles Schemes Management Act and the Sectional Titles Act, the respondent as owner bore responsibility to repair and maintain the bathtub, wall tiles and balcony forming part of his section.

The application was upheld. The respondent was ordered, within 14 days of the issuing of the order, to reseal his unit's bathtub and wall tiles and to waterproof his balcony in accordance with the recommendations in the water leak detection report. No order as to costs was made.

Where credible evidence, including an expert leak detection report, establishes on a balance of probabilities that water ingress into one section originates from another owner's section, the adjudicator may grant relief under section 39(6)(b)(i) of the CSOS Act directing that owner to carry out specified repairs. In terms of section 13(1) of the Sectional Titles Schemes Management Act, read with section 5(5) of the Sectional Titles Act, an owner bears the duty to maintain and repair his or her section, including appurtenant features such as a balcony forming part of the section.

The adjudicator made general remarks about evidentiary principles, including that only relevant evidence should be considered and that disputes must be decided on credibility and probabilities. The adjudicator also noted the procedural context that, due to COVID-19 precautions and the applicable practice directive, adjudications could be conducted on the papers without face-to-face hearings. The concluding notice regarding the right of appeal to the High Court on a question of law was procedural and not part of the ratio.

This adjudication illustrates the CSOS's remedial power under section 39(6)(b)(i) to compel an owner in a sectional title scheme to repair defects within his or her section where those defects cause harm to another owner. It also reinforces the principle that, under sectional title legislation, an owner is responsible for maintaining and repairing his or her own section and may be compelled through CSOS proceedings to remedy leaks affecting another unit. The matter is a practical example of documentary adjudication within community scheme disputes.