Innikol Body Corporate v CJ & E van der Walt

The applicant, Innikol Body Corporate, a sectional title scheme in Mossel Bay, brought a CSOS dispute against the respondents, CJ & E van der Walt, co-owners of unit 2. The dispute concerned a DSTV dish attached to the outside wall of the respondents' enclosed balcony. The balcony had been enclosed in January 2020 after the respondents purchased the property in 2019. The body corporate contended that the outside wall of the enclosed balcony formed part of the common property and that no articles could be placed on common property without prior written approval of the trustees. The applicant alleged that the respondents had applied for permission to install the dish but were told permission would not be granted and that the dish should instead be installed on a chimney. The respondents said they requested permission on 13 January 2020, were told they would be informed, and understood the dish could be installed provided it did not interfere with the aesthetic appearance of the scheme. They also relied on prior instances where permission had allegedly been granted to other owners or previous owners to install dishes on common property. Evidence showed that seven owners had enclosed their balconies, some owners with unenclosed balconies had dishes on their balconies, and only one dish was attached to a chimney. A proposal for communal DSTV infrastructure had previously been rejected because of cost. After hearing the matter and conducting an inspection in loco, the adjudicator considered whether the dish should be removed and whether the respondents should be compelled to accept obligations regarding a defined part of common area.

• Whether the DSTV dish attached to the outside wall of the respondents' enclosed balcony constituted an 'article' attached to common property within the meaning of section 39(2)(d) of the CSOS Act.
• Whether the respondents had installed the DSTV dish illegally or without the required prior written consent of the trustees under the scheme rules and prescribed management/conduct rules.
• Whether CSOS should order removal of the DSTV dish from the common property.
• Whether the respondents should be ordered under section 39(6)(g) to accept obligations in respect of a defined part of the common area.
• Whether the body corporate had properly and procedurally decided, by formal trustee resolution, to require removal of the dish before bringing the application.
• What order would be just and equitable under section 54(3) of the CSOS Act in the circumstances.

The applicant's relief under sections 39(2)(d) and 39(6)(g) of the CSOS Act was refused. The applicant/trustees were ordered to convene a trustee meeting on or before 29 February 2024 to discuss and consider the respondents' application to install the DSTV dish on the outside wall of the enclosed balcony or another suitable place, and to invite the respondents to the meeting for input. No order as to costs was made.

A DSTV dish attached to common property can qualify as an 'article' for purposes of section 39(2)(d) of the CSOS Act, and therefore potentially falls within CSOS remedial jurisdiction. However, where a body corporate seeks removal relief without demonstrating that its demand is grounded in a proper formal trustee decision, and where the proposed alternative may not be suitable or fair, the adjudicator may regard the application as procedurally premature and refuse the relief. In such circumstances, section 54(3) permits the adjudicator to make an ancillary order directing the trustees to properly consider the owner's application.

The adjudicator observed that relocating the dish from the balcony wall to the chimney might not produce an ideal outcome because it could be more visible and aesthetically more prejudicial to the scheme. The adjudicator also noted generally that parties in CSOS adjudications are usually expected to bear their own costs, with cost orders being more common in section 53 dismissals involving frivolous, vexatious or misconceived applications. These observations were ancillary to the dispositive procedural finding.

The matter is significant in community schemes and sectional title governance because it illustrates the limits of CSOS adjudicative intervention under section 39 and the importance of proper internal decision-making by a body corporate before seeking coercive relief. It shows that even where conduct rules require prior written approval for installations on common property, an adjudicator may refuse removal relief if the body corporate has not acted through a proper trustee resolution and if the requested remedy is not practically or aesthetically justified. The case also demonstrates the use of section 54(3) to craft a fair procedural remedy by sending the matter back to trustees for proper consideration rather than granting immediate enforcement relief.