Farrel Brian Kelman v Trustees of Highstrand Body Corporate SS 158/1989

The applicant, Farrel Brian Kelman, is the registered owner of unit 45 in the Highstrand sectional title scheme in Cape Town. He sought permission to extend his section by constructing a balcony similar to existing balconies in the scheme. He relied on the fact that 80 sections were originally built with balconies, that sections 50, 51 and 52 above his unit have developer-built balconies reflected on the sectional plans, and that the owner of adjacent section 44 had previously obtained approval at an annual general meeting on 19 November 2018 to construct a balcony by extending that section under section 24 of the Sectional Titles Act 95 of 1986. The applicant submitted applications to the body corporate for approval of his own balcony extension. At the annual general meeting on 29 March 2021, his proposal received only 58% support and failed. He submitted a further application, which was considered at the annual general meeting on 23 November 2022. That meeting was attended by 31 members representing 34.4902% of the total quotas; 20 voted in favour and 11 against. The proposal achieved 64% by number and 72.8946% by value, which was below the required 75% threshold for a special resolution, and it therefore failed again. The applicant contended that the opposition was unreasonable, especially because objectors did not provide formal reasons, although privacy concerns were mentioned informally. He then applied to the Community Schemes Ombud Service for relief under section 39(4)(d) of the CSOS Act to have the failed motion treated as not passed because the opposition was unreasonable and to give effect to the motion.

• Whether the applicant was entitled to relief under section 39(4)(d) of the Community Schemes Ombud Service Act declaring that opposition to the motion was unreasonable and giving effect to the failed resolution.
• Whether a dispute concerning approval for an extension of a section and the passing of the necessary special resolution should instead have been brought under section 6(9) of the Sectional Titles Schemes Management Act.
• Whether the application was misconceived and liable to dismissal in terms of section 53(1)(a) of the CSOS Act because the wrong statutory procedure had been invoked.

The application was dismissed in its entirety as misconceived in terms of section 53(1)(a) of the Community Schemes Ombud Service Act 9 of 2011. No order as to costs was made. The adjudicator noted that the applicant remains free to pursue the matter under section 6(9) of the Sectional Titles Schemes Management Act 8 of 2011.

Where an owner seeks approval for an extension of a section that requires a special resolution under sectional titles legislation, the appropriate remedy is to proceed under section 6(9) of the Sectional Titles Schemes Management Act, not under section 39(4)(d) of the Community Schemes Ombud Service Act. An application brought under the wrong statutory provision may be dismissed as misconceived under section 53(1)(a) of the CSOS Act without the merits being determined.

The adjudicator observed that the dismissal does not prevent the applicant from utilising the procedure set out in section 6(9) of the STSMA. The order also recorded the statutory right of appeal to the High Court on a question of law under section 57 of the CSOS Act. No further substantive obiter on the reasonableness of the opposition or the merits of the proposed balcony was provided.

The matter is significant for community schemes and sectional title practice because it clarifies that disputes about obtaining approval for the extension of a section, including the approval of the necessary special resolution, must be pursued through the correct statutory mechanism. The adjudication underscores that CSOS relief under section 39(4)(d) cannot be used as a substitute where the legislature has provided a specific remedy under section 6(9) of the STSMA. It highlights the importance of proper procedural characterisation of disputes before the CSOS.