Directors of Antalya Homeowners Association v Moloto Merafe

The applicant was the Directors of Antalya Homeowners Association, a homeowners association and community scheme registered under South African company law. The respondent, Ms Merafe Moloto, was the registered owner of Unit 2 in the scheme. The association brought an application to the Community Schemes Ombud Service (CSOS) under sections 38 and 39(2)(a) of the Community Schemes Ombud Service Act 9 of 2011, alleging that the respondent persistently caused nuisance within the scheme. According to the applicant, complaints were received from at least 2 January 2023 regarding rowdy behaviour, noise disturbances, verbal abuse, threats, foul language, disorderly parties, loud music at all hours, and shouting emanating from Unit 2. The applicant stated that neighbouring owners, some directors, security guards and other members had first-hand experience of these disturbances. The applicant also indicated that internal remedies had been exhausted without success. The respondent filed no submissions and placed no version before the adjudicator.

• Whether the applicant homeowners association was duly authorised to bring the CSOS application.
• Whether the dispute fell within the jurisdiction of the CSOS under sections 38 and 39(2)(a) of the CSOS Act.
• Whether, on the undisputed papers, the respondent's conduct constituted a nuisance or behavioural issue justifying relief under section 39(2)(a) of the CSOS Act.
• Whether the absence of separate conduct rules in the association prevented the grant of relief for nuisance.
• What order, if any, should be made, including costs.

The application succeeded. The respondent was ordered to refrain from causing nuisance within 5 days from the date of the order. No order as to costs was made.

Where a community scheme applicant is duly authorised, has exhausted internal remedies, and places undisputed evidence before CSOS that an owner is causing persistent noise and behavioural disturbances interfering with others' use and enjoyment of property, an adjudicator may grant relief under section 39(2)(a) of the CSOS Act by declaring the conduct to be a nuisance and directing the owner to refrain from it. The absence of separate conduct rules does not necessarily bar relief where the facts establish unjustified interference amounting to nuisance.

The adjudicator commented that it was unfortunate that the association had not adopted specific conduct rules dealing with nuisance and unneighbourly behaviour despite clearly knowing the type of conduct it wished to regulate. The discussion of the dictionary meaning of nuisance, the distinction between nuisance and trespass, and the broader remarks on factual versus legal questions were explanatory observations not strictly necessary to the final order.

The decision is significant as a CSOS adjudication confirming that nuisance-type conduct in a community scheme may be restrained under section 39(2)(a) of the CSOS Act even where the respondent does not participate and even where the scheme lacks detailed standalone conduct rules. It also reinforces the role of CSOS as the primary dispute-resolution forum for community scheme disputes and reflects the application of common-law nuisance concepts within the statutory CSOS framework.