Devanand Kalidin v P Govender

The applicant, Devanand Kalidin, is the owner of unit 4 in the 246 Effingham Road sectional title scheme in Redhill, Durban, KwaZulu-Natal. The respondent, P Govender, is the owner of unit 1 in the same scheme. The dispute concerned parking on the common property. The applicant stated that units 2, 3 and 4 had no additional parking apart from their garages and sought an order that an additional parking bay be demarcated in front of each garage on the common area. The respondent contended that the applicant and another owner were already parking on the common area in contravention of the scheme rules, causing obstruction to other owners, and alleged that they each had two exclusive use parking spaces allocated to them. The application was brought under sections 39(2)(a), 39(3)(a) and 39(4)(a) of the Community Schemes Ombud Service Act 9 of 2011. The body corporate itself was not cited as a party.

• Whether the CSOS adjudicator had power under section 39 of the CSOS Act to order the creation or demarcation of additional parking bays on common property.
• Whether the applicant's complaint disclosed a dispute warranting relief under sections 39(2)(a), 39(3)(a) or 39(4)(a) of the CSOS Act.
• Whether parking on the common property without written trustee consent was permissible under the applicable sectional title management framework.
• Whether the application was misconceived or without substance and thus liable to dismissal under section 53(1)(a) of the CSOS Act.

The application was dismissed in terms of section 53(1)(a) of the Community Schemes Ombud Service Act 9 of 2011 as being without substance. Each party was ordered to bear its own costs.

A CSOS adjudicator may grant only those remedies authorised by section 39 of the CSOS Act and cannot substitute the governance decisions of a body corporate or trustees regarding the creation or allocation of parking or exclusive use areas on common property. Where an application effectively seeks relief outside the adjudicator's statutory competence, and does not establish a substantiated basis for relief under section 39, it may be dismissed as misconceived or without substance under section 53(1)(a).

The adjudicator remarked that the most cost-effective solution would be the creation of rule-based exclusive use areas under sections 10(7) and 10(8) of the Sectional Titles Schemes Management Act. The adjudicator also referred generally to judicial guidance on reasonableness and capriciousness in scheme governance decisions, citing Bato Star Fishing and Bushwillow Park Homeowners v Fernandes, although those considerations were not determinative of the outcome. The adjudicator additionally noted uncertainty as to why the body corporate had not been cited as a party.

This decision is significant in community schemes jurisprudence because it affirms the limits of CSOS adjudicators' statutory powers. It underscores that CSOS cannot create new parking rights or redesign common property arrangements where those matters fall within the governance and democratic decision-making structures of the body corporate under the sectional title legislative framework. The case also highlights the importance of citing the body corporate where relief implicates trustee or scheme governance powers, and it reinforces that parking on common property requires trustee consent under the prescribed management rules.