Harbouredge Body Corporate v Safy Trust

The applicant, Harbouredge Body Corporate, is the body corporate of a sectional title scheme in De Waterkant, Cape Town. The respondent, Safy Trust, is the owner of section 1 and holds exclusive use rights to certain parking bays in the scheme. The dispute concerned the respondent's enclosure of 12 exclusive use basement parking bays with wire-mesh/clear-view fencing and support structures affixed to structural supports and common property. The body corporate alleged that the enclosures were installed without proper permission, were illegal, and were aesthetically displeasing, and sought an order under section 39(2)(d) of the Community Schemes Ombud Service Act 9 of 2011 for their removal. The respondent contended that permission had effectively been discussed and granted by the then chairperson, that drawings and colour discussions had taken place, and that the enclosures were necessary to secure Harley Davidson motorcycles kept in the bays for business purposes. The adjudicator found that no proper formal administrative process had been followed within the body corporate for considering and deciding the request to install the fencing.

• Whether the CSOS adjudicator could grant relief under section 39(2)(d) of the CSOS Act for removal of the wire-mesh fencing and support structures as 'articles' illegally attached to common or private areas.
• Whether the installation of the fencing had been properly authorised through the body corporate's internal decision-making processes.
• Whether the application was premature because the trustees had not properly considered the respondent's application to install the fencing.
• What ancillary order was just and fair under section 54(3) of the CSOS Act in the circumstances.

The applicant's claim for removal of the fencing under section 39(2)(d) was refused. The trustees of the applicant body corporate were ordered, in terms of section 54(3) of the CSOS Act, to convene a trustee meeting on or before 31 May 2024 to discuss and consider the respondent's application to install the wire-mesh fencing to the parking bays, and to invite the respondent to attend and provide input. No order as to costs was made.

Where a body corporate seeks relief under the CSOS Act for removal of structures allegedly installed without permission, the adjudicator must act within the limits of section 39. If it is doubtful that the complained-of structures fall within the specific statutory remedy invoked, and the evidence shows that the body corporate failed to follow a proper internal administrative process to consider and decide the owner's application, the removal application may be refused as premature. In such circumstances, an adjudicator may, under section 54(3), direct the body corporate to convene a proper meeting and reasonably consider the application with input from the affected owner.

The adjudicator commented that it was debatable whether wire-mesh fencing and support structures constitute 'articles' for purposes of section 39(2)(d), suggesting that the term more naturally refers to items like pot plants or satellite dishes. The adjudicator also made broader observations on 'reasonableness' by citing Bato Star, noting that the relevant inquiry is not what the best decision would be, but whether the decision-maker reaches a reasonable equilibrium among the applicable considerations. These comments were supportive of the reasoning but not strictly necessary to the narrow procedural basis on which the application was refused.

This decision is significant in community schemes jurisprudence because it underscores that CSOS adjudicators are confined to the statutory remedies in section 39 of the CSOS Act and cannot easily stretch those remedies beyond their wording. It also highlights the importance of proper internal governance and procedural fairness within sectional title schemes: where a body corporate has not properly processed, discussed, and resolved an owner's application through trustee procedures, enforcement relief may be refused as premature. The order illustrates the use of section 54(3) to fashion practical ancillary relief directing the scheme to follow a lawful and reasonable decision-making process rather than granting immediate coercive relief.