Cornelia Jardine v Kraaibosch Village Home Owners Association

The applicant, Cornelia Jardine, is the registered owner of erf 26598 in Kraaibosch Village, a retirement village and community scheme administered by the respondent Home Owners Association (HOA). In March 2023 she was informed that a trustee had approved her neighbour Mr T.L. Kriel’s plan to erect a boundary wall on the common boundary, approximately 1.39 metres from her house and patio. Jardine contended that the wall did not comply with the scheme’s design and architectural guidelines and that the approval process was improper because it was initially granted by only one trustee. After she objected, the trustees held a meeting on 14 March 2023 and, by a majority of 3 to 2, confirmed the approval. The neighbour also obtained municipal approval and proceeded to erect the wall. Jardine approached the Community Schemes Ombud Service under s 38 of the CSOS Act seeking, first, an order declaring a policy allowing one person to approve plans to be inconsistent with the constitution, and second, an order reversing the decision permitting the wall.

• Whether there was a policy of the HOA permitting a single trustee to approve building plans, and if so whether that policy conflicted with the HOA constitution.
• Whether the trustees’ resolution of 14 March 2023 approving the boundary wall was lawful, reasonable, and procedurally fair under the HOA constitution and applicable legal principles.
• Whether the approval unreasonably interfered with the applicant’s rights for purposes of s 39(4)(e) of the CSOS Act.
• Whether the adjudicator could order removal of the wall or reverse the effect of municipal approval where the neighbour was not joined as a party and the municipality’s approval stood.

The application succeeded in part. The claim to declare a policy allowing one person to approve plans inconsistent with the constitution was refused. The trustees’ decision approving the construction of the wall was declared void and set aside. To the extent that the applicant sought effective reversal/removal of the wall, that relief was refused. No order as to costs was made.

A homeowners association’s approval of building works within a community scheme must be taken by the properly authorised body in accordance with the scheme’s constitution and after a genuine, procedurally fair consideration of the relevant facts and the impact on affected neighbours. Where trustees merely rubber-stamp an earlier approval, fail to hear an affected owner, and fail properly to apply their minds to compliance with the scheme’s guidelines, the resulting resolution may be declared void under s 39(4)(e) of the CSOS Act as unreasonably interfering with that owner’s rights. An isolated act by one trustee does not, without more, establish a binding policy of single-trustee approval.

The adjudicator observed that if a policy existed allowing a single trustee to approve plans, it would be contrary to the HOA constitution. The adjudicator also remarked that South African common law does not protect a right to an existing view, and that any diminution of the applicant’s street view was minimal. Further, the adjudicator commented that if the applicant wished to obtain removal of the wall, she would need to bring a fresh application joining both the neighbour and the HOA, and would also need the municipal approval to be withdrawn or reviewed and set aside by a court.

The decision is significant for South African community schemes jurisprudence because it confirms that HOA and trustee decisions concerning building alterations are subject to scrutiny for procedural fairness, rationality and compliance with the scheme’s constitution and design guidelines. It illustrates the CSOS adjudicator’s power under s 39(4)(e) to declare a resolution void where it unreasonably interferes with an owner’s rights, while also highlighting limits on CSOS jurisdiction: an adjudicator cannot set aside municipal building-plan approval and generally cannot grant relief affecting a non-joined neighbouring owner. The case also reinforces that there is no freestanding common-law right to preserve an existing view.