Growth Invest 133 (Pty) Ltd v AM Mnakathi and Lala Palm Body Corporate

The applicant, Growth Invest 133 (Pty) Ltd, is the owner of a unit in the Lala Palm sectional title scheme. It alleged that its unit sustained damage from water ingress, including damage to the ceiling, walls, and kitchen cupboards, and contended that the leak apparently emanated from the unit directly above, owned by the first respondent, AM Mnakathi. The applicant notified the body corporate on 3 May 2023, but the trustees indicated that the matter should be dealt with between the owners and that the body corporate would not intervene. The applicant attempted to resolve the matter with the first respondent, including on 19 May 2023, without success. It also stated that a similar leak had occurred in 2022 and had then been repaired at its own cost. The applicant brought an application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 seeking relief under section 39(6)(b)(i) and (ii), namely an order compelling repairs or reimbursement for repairs. The first respondent did not respond to the section 43 notice or later requests for written submissions. No expert evidence was submitted to establish the exact origin and cause of the leak.

• Whether the applicant had established, on a balance of probabilities, that the water leak originated from the first respondent's section rather than the common property.
• Whether relief under section 39(6)(b)(i) or (ii) of the CSOS Act could be granted without expert evidence identifying the source and cause of the leak.
• Whether the body corporate bore responsibility to investigate or address the leak in light of its duties under the Sectional Titles Schemes Management Act and prescribed management rules.
• What order an adjudicator may appropriately make under section 54(3) of the CSOS Act where the evidence is insufficient to grant the primary relief sought.

The applicant's relief sought under sections 39(6)(b)(i) and (ii) of the CSOS Act was refused. The second respondent, Lala Palm Body Corporate, was ordered under section 54(3) of the CSOS Act to appoint an expert to establish the origin and cause of the water leak and the damage to the applicant's unit, and to provide a detailed report by 29 February 2024. No order as to costs was made.

A party seeking relief under section 39(6)(b)(i) or (ii) of the CSOS Act for repairs or reimbursement arising from a water leak must place sufficient evidence before the adjudicator to establish the origin and cause of the leak, because liability depends on whether the source is a private section or common property. Where such proof is lacking, the adjudicator cannot grant the substantive repair or reimbursement relief sought, but may, under section 54(3), make an appropriate ancillary order such as directing the body corporate to obtain expert evidence to determine the source of the leak.

The adjudicator observed that body corporates are usually joined in applications of this kind and that it was uncertain whether an insurance claim had been lodged. The adjudicator also remarked that the origin of the leak would indicate where responsibility for the cost of the expert report should lie. In addition, the order noted generally that costs orders are more commonly associated with section 53 dismissals for frivolous, vexatious, misconceived or unsubstantial applications, although that was not the case here.

The matter is significant for community schemes jurisprudence because it illustrates that CSOS adjudicators require adequate evidentiary support, particularly expert evidence, before making repair or reimbursement orders in water ingress disputes. It also demonstrates the practical use of section 54(3) of the CSOS Act to craft an investigative or procedural remedy where the main claim is inadequately proved. The decision further highlights the distinction between an owner's responsibility for repairs within a section and the body corporate's obligations regarding common property under the Sectional Titles Schemes Management Act.