Emmanuel Barnabas v Directors of Chartham Flats Body Corporate

The applicant, Emmanuel Barnabas, was the holder of a right to use and occupy unit 18 in Chartham Flats Share Block (Pty) Ltd in Glenwood, Durban. He complained for several months to the directors and managing agent that the walls inside unit 18 were cracked, paint was flaking, and a side window was corroded, rusted and broken, affecting the main bedroom, porch and lounge. According to an email from the managing agent, the damage was caused by water ingress and lack of maintenance to the building exterior. At the annual general meeting of 6 September 2022, the shareholders resolved that the building urgently required exterior sealing and painting because lack of maintenance was causing water ingress into some units, including unit 18. The shareholders unanimously approved a 6% levy increase and a special levy of R180 000 to fund the refurbishment and related works. The AGM minutes also recorded that Spectrum should provide a report on the damage to unit 18 because the water ingress from the exterior was a company responsibility and that the report would be acted upon. The applicant approached CSOS for relief seeking, first, repairs to the damage inside unit 18 and, second, an order declaring the special levy unreasonable so that he would not have to pay it. The respondent opposed the challenge to the levy, contending that the shareholders had approved it at the AGM, that the finances had been disclosed, and that the levy was necessary to fund overdue major maintenance.

• Whether the special levy imposed on shareholders was incorrectly determined or unreasonable under section 39(1)(c) of the Community Schemes Ombud Service Act 9 of 2011.
• Whether the respondent association/company was responsible for carrying out repairs and maintenance relating to water-ingress damage affecting unit 18 under section 39(6)(a) of the CSOS Act.
• Whether, on the terms of the use and occupation agreement and the AGM resolutions, the exterior-related source of the damage fell within the company’s maintenance responsibilities.

The application succeeded in part. The claim challenging the reasonableness of the special levy under section 39(1)(c) was refused. The claim for repair and maintenance relief under section 39(6)(a) was granted. The respondent was ordered to attend to repair of the consequential damages to unit 18 as per Spectrum’s report within 60 days of delivery of the order. No order as to costs was made.

A special levy approved by shareholders and shown on the evidence to be necessary to fund urgent, unforeseen, or inadequately budgeted maintenance of the scheme’s exterior is not unreasonable or incorrectly determined for purposes of section 39(1)(c) of the CSOS Act. Where damage within a unit is caused by water ingress originating from the exterior of the building, and the governing agreement and scheme resolutions place responsibility for exterior maintenance on the company/association, CSOS may order the association under section 39(6)(a) to carry out repairs to the consequential damage.

The adjudicator made general observations about the evaluation of evidence, including that only relevant evidence should be considered and that factual findings require an assessment of credibility and probabilities. The order also noted the statutory right of appeal under section 57 of the CSOS Act to the High Court on a question of law only. No substantial obiter beyond these procedural observations appears from the text.

The matter is significant for community schemes and share block governance because it confirms that a properly approved special levy for urgent and overdue exterior maintenance will not lightly be interfered with under section 39(1)(c) of the CSOS Act where the evidence shows it is necessary and reasonable. It also illustrates that CSOS adjudicators will enforce a scheme’s maintenance obligations where damage inside a unit is consequential upon failure to maintain common or company-responsibility exterior elements. The decision is a practical example of the interaction between a share block use agreement, AGM resolutions, and the remedial powers in section 39 of the CSOS Act.