Cornelia Johanna Morris v Trustees of Dolphin View Body Corporate and Property Management Group

The applicant, Cornelia Johanna Morris, is an owner of unit 3 in the Dolphin View sectional title scheme at 32 Diaz Road, Jeffrey's Bay. She stated that she bought sections in the scheme in March 2020 and became registered owner on 5 June 2020. After acquiring units, and while involved in the scheme, she experienced ongoing problems in the building, including mould, sewer overflows, foul smells, and cockroach infestation, and became concerned about the management of repairs, maintenance, finances, governance, and the conduct of the managing agent. She requested from the body corporate and its managing agent a wide range of documents dating back to 2013, including quotations, invoices, bank statements, meeting agendas and minutes, proxy forms, trust resolutions, corporate authority documents relating to Investability 214 Pty Ltd, and employment-related records concerning persons allegedly engaged by the managing agent. The applicant alleged that the requested information had been withheld. The matter was referred under section 38 read with section 39(7)(a) of the Community Schemes Ombud Service Act 9 of 2011 after conciliation failed. The respondents filed no submissions, and the matter proceeded unopposed on the papers.

• Whether the applicant had been wrongfully denied access to information or documents under section 39(7)(a) of the CSOS Act.
• What categories of records a body corporate member is entitled to inspect or obtain under the Prescribed Management Rules, particularly clause 26 concerning books of account and financial information.
• Whether the applicant, having become a member only in 2020, was entitled to records dating back to 2013.
• Whether certain requested records were protected from disclosure because they contained personal information under the Protection of Personal Information Act (POPIA).
• Whether documents relating to non-cited third parties, such as Investability 214 Pty Ltd, could be ordered to be disclosed in these proceedings.

The application was partially successful. The respondents were ordered to provide the applicant, within 90 days of receipt of the order, with: (i) all quotes related to repair and maintenance of the building from 2020 to date; (ii) all invoices related to repairs and maintenance; (iii) proof of payments reflected in bank statements; (iv) all agendas and minutes of meetings from 2020 to date; (v) minutes approving maintenance and repairs payment from 2022 to date; and (vi) trust resolution letters authorising one specific trust member to vote at AGMs and SGMs from 2020 to date. No order as to costs was made.

A member of a body corporate who shows that access to scheme records has been denied may obtain relief under section 39(7)(a) of the CSOS Act compelling disclosure of records that the body corporate is required to keep under the Prescribed Management Rules, especially records relating to the financial position and administration of the scheme. However, that entitlement is limited to records to which the member has a legal claim, and does not extend to periods before the person became a member, nor to personal information protected under POPIA or documents of non-parties absent a proper basis for disclosure.

The adjudicator observed more generally that relevance, credibility and probabilities must be considered in evaluating evidence, even though the matter proceeded on the papers and unopposed. The adjudicator also remarked that the respondents’ failure to oppose meant there were no reasons before the tribunal explaining the denial of access. These comments were ancillary to the main basis of the order.

The decision is significant in community schemes law because it confirms that members of a body corporate have enforceable rights under section 39(7)(a) of the CSOS Act and the Prescribed Management Rules to obtain financial and governance records necessary to assess the scheme’s affairs. It also illustrates two important limits on that right: first, an adjudicator may restrict access to the period during which the requester was a member of the body corporate; second, records containing personal information or belonging to non-parties may be withheld or excluded with reference to POPIA and procedural fairness. The case shows the practical role of CSOS adjudication in compelling disclosure where a body corporate or managing agent fails to respond.