Gary Lees v Trustees of The Village Body Corporate

The applicant, Gary Lees, is the registered owner of Unit 13 in The Village Body Corporate, a sectional title/community scheme in the Western Cape. He reported leaking roof panels to the body corporate through the managing agent in June 2022. Because the roof was still under guarantee, he requested that the body corporate address the problem. After delays, the body corporate appointed Swartland Staal to undertake repairs on 24 and 25 August 2022. According to the applicant, the repair team was shown the specific leaking areas but also carried out work on other areas of the roof at their own discretion. After a rainstorm on 29 August 2022, the original leaks persisted and additional leaks appeared in areas worked on by the contractor. The applicant warned that more bad weather was imminent, but no repair team returned before a further storm, causing additional damage to his property. He notified his insurer immediately, and an assessor concluded that the damage was caused by defective workmanship. A second assessor engaged via the body corporate's broker reached the same conclusion. The body corporate's insurer split the claim into two incidents, paid the first, and repudiated the second on the basis that the damage arose from defective workmanship, which was not covered by the policy. The applicant then sought reimbursement from the body corporate for the uninsured balance of the loss, supported by a contractor's invoice for R60 811,20. The respondent body corporate did not file final written submissions.

• Whether the body corporate, as the entity responsible for maintenance and management of common property, was liable for damage caused to an owner's section by defective workmanship of a contractor it appointed to repair the common-property roof.
• Whether section 39(6)(a) and (b) of the Community Schemes Ombud Service Act 9 of 2011 empowered the adjudicator to order reimbursement to the applicant for repairs carried out or to be carried out in respect of his property.
• Whether, on the evidence and on a balance of probabilities, the applicant proved that the roof leaks and resulting damage were caused by defective workmanship attributable to the respondent's appointed contractor.

The application succeeded. The respondent, Trustees of The Village Body Corporate, was ordered to pay the applicant R60 811,20 as the balance of the claim for damages resulting from defective work, by no later than 30 September 2023. No order as to costs was made.

Where a body corporate is statutorily responsible for maintaining common property and appoints a contractor to perform repairs to that common property, and the contractor's defective workmanship causes damage to an owner's section, the body corporate may be ordered under section 39(6)(a) and (b) of the CSOS Act to reimburse the owner for the repair costs, provided the owner proves the causal link and loss on a balance of probabilities. The body corporate's duties under section 3(1)(l) of the STSMA to maintain common property in a good and serviceable state support such liability in the CSOS context.

The adjudicator made general observations about evidentiary standards, including that relevant evidence must be assessed with reference to credibility, reliability and probabilities, and that proof is established on a balance of probabilities. The adjudicator also referred to Wimbledon Lodge (Pty) Ltd v Gore NO and Others 2003 2 All SA 179 (SCA) in commenting broadly that a body corporate is essentially an aggregation of owners whose interests are interconnected. There are also some non-material inconsistencies in the order and reasons, including references to 'his' and 'her' in relation to the applicant and slight paragraph-number discrepancies, but these do not affect the substance of the ruling.

The decision is significant within the CSOS/community schemes context because it affirms that a body corporate may be held financially accountable where defective workmanship by its appointed contractor, while attending to common property, causes loss to an owner's section. It also illustrates the remedial reach of section 39(6) of the CSOS Act, including reimbursement orders, and reinforces the statutory duties imposed on bodies corporate under the STSMA to maintain and manage common property properly.