Trustees of Newlands Retirement Village Body Corporate v T. De Jager and L. Swiegelaar

The applicant, the Trustees of Newlands Retirement Village Body Corporate, undertook a project to legalise and update the scheme's building plans and site development plan so that alterations and additions made over time would comply with the applicable sectional title legal framework. A site audit by a registered land surveyor identified units, including the respondents' unit (House 265, Section 50), whose building plans had not been updated despite alterations such as additions or changes affecting private areas and potentially common property. The body corporate notified affected owners through an AGM pack and subsequent letters dated 28 March 2023 and 2 May 2023, granting extensions for them either to submit amended plans or indicate their intentions. The respondents, registered owners T. De Jager and L. Swiegelaar, did not respond and filed no submissions in the CSOS proceedings. The body corporate accordingly sought relief under s 39(6)(g) of the CSOS Act to compel compliance with obligations relating to a defined part of common property and to enable regularisation of the plans.

• Whether the CSOS adjudicator should grant relief under s 39(6)(g) of the Community Schemes Ombud Service Act 9 of 2011 compelling the respondents to accept and perform obligations relating to a defined part of common property.
• Whether owners in a sectional title/community scheme who have altered their units without updated approved plans can be compelled to regularise those plans in order to ensure the scheme's legal compliance.
• Whether, in the absence of any answering submissions by the respondents, the applicant's undisputed evidence justified the grant of the order sought.

The application succeeded. The adjudicator granted the relief sought under s 39(6)(g) of the CSOS Act and ordered the respondents to update the building plans in compliance with the legal requirements within 14 days of receipt of the adjudication order. No order as to costs was made.

Where a body corporate establishes, on undisputed evidence, that owners within a sectional title/community scheme have failed to update or regularise building plans required for the scheme's legal compliance, and have ignored notices and opportunities to comply, a CSOS adjudicator may grant relief under s 39(6)(g) compelling those owners to accept and perform obligations relating to the affected parts of the scheme. Owners are bound by the rules and compliance obligations of the scheme upon acquiring property in it.

The adjudicator's general remarks about the relevance of evidence, the assessment of probabilities and credibility, and the quotation from Mount Edgecombe regarding the contractual nature of community-scheme rules are supportive observations explaining the framework of decision-making. The judgment also mentions the applicant's wish that, failing owner compliance, the body corporate be enabled to update plans on the owners' behalf and load the costs to their levy accounts, but no express order granting that specific consequential relief was made.

The matter illustrates the CSOS's role in enforcing compliance within sectional title and other community schemes, particularly where owners fail to regularise alterations affecting scheme governance and compliance. It confirms that a body corporate may invoke s 39(6)(g) of the CSOS Act to compel owners to fulfil obligations connected to common property and scheme compliance. The decision also reflects the South African approach that scheme rules and obligations are binding on owners who voluntarily acquire property within such schemes.