Engels v Gouws

Pieter Willem Engels, the registered owner of unit 42 in the Hillcrest Homeowners' Association (a community scheme), applied to the Community Schemes Ombud Service (CSOS) for an order under section 39(2)(a) of the CSOS Act to address alleged behavioural issues by his neighbour, Hennie Gouws, owner of unit 39. Engels alleged that on 28 September 2022 Gouws swore at and behaved violently towards him and his wife, and on 1 October 2022 Gouws threw a brick that damaged Engels' aluminium window frame, allegedly stemming from a dispute over Gouws' stray cat. Gouws counter‑claimed that a criminal assault case (Cas 293/1/2023) had been lodged against Engels for the September incident, admitted the brick‑throwing (but directed it at Engels' cat), and expressed concern about a CCTV camera installed by Engels. The application, lodged on 7 July 2023, sought a protection/restraining order against Gouws. The matter was referred to an adjudicator, Adv. A.S. du Toit, who investigated the dispute on 8 January 2024.

• Whether the CSOS adjudicator has jurisdiction under section 39 of the CSOS Act to grant a protection or restraining order for alleged behavioural misconduct
• Whether the respondent's conduct amounts to a nuisance within the meaning of the CSOS Act and the common‑law test of nuisance
• Whether the application is frivolous, vexatious, misconceived or without substance under section 53(1)(a) of the CSOS Act
• Whether costs should be awarded against the applicant

The application is dismissed; each party bears its own costs.

A CSOS adjudicator may only grant relief expressly provided for in section 39 of the CSOS Act; harassment or protection orders are beyond its jurisdiction, and conduct must satisfy the objective nuisance test to be deemed a nuisance. An application that does not meet these criteria is dismissed as without substance under section 53(1)(a).

The adjudicator discussed the common‑law principles of nuisance, citing cases such as Dorland v Smits, PGB Boerdery Beleggings, Two Oceans Aquarium Trust v Kantey & Templer, and De Charmoy v Day Star Hatchery to illustrate the objective assessment of reasonableness, but these observations were not essential to the final order.

The case clarifies the limited jurisdiction of the CSOS adjudicator, confirming that orders such as protection or restraining orders are outside the scope of section 39 of the CSOS Act and must be pursued in the courts. It also reinforces the application of the common‑law nuisance test within community‑scheme disputes, providing guidance on what constitutes a nuisance in this statutory context.