Innikol Body Corporate v CJ & E Van der Walt

The applicant, Innikol Body Corporate, is a sectional title body corporate in Mossel Bay. The respondents, CJ and E van der Walt, are co-owners of unit 2 in the scheme. After purchasing the unit in 2019, they enclosed their balcony in January 2020. A DSTV dish was attached to the outside wall of that enclosed balcony. The outside wall was regarded as common property, and the scheme's rules required prior written trustee approval before articles such as satellite dishes could be attached to common property or the outside of the building. The body corporate contended that the respondents had sought permission, were told permission would not be granted, and were repeatedly instructed to remove the dish because it should instead be installed on a chimney. The respondents contended that they requested permission on 13 January 2020 and were told they would be informed; they believed the dish could be installed provided it did not negatively affect the scheme's aesthetics. They also relied on prior permissions allegedly granted to the previous owner of unit 2 and to another owner, and pointed out that several balconies in the scheme had been enclosed and that only one dish was attached to a chimney despite 88 units in the complex. The body corporate sought CSOS relief for removal of the dish from common property and for an order obliging the respondents to accept obligations in respect of a defined part of the common area.

• Whether the DSTV dish attached to the outside wall of unit 2 constituted an 'article' attached to common property within the meaning of section 39(2)(d) of the CSOS Act.
• Whether the respondents' installation of the DSTV dish on the common property was illegal or unauthorised under the scheme rules and prescribed management/conduct rules.
• Whether the body corporate was entitled to an order compelling removal of the dish.
• Whether relief under section 39(6)(g) of the CSOS Act, obliging an owner or occupier to accept obligations in respect of a defined part of common area, was competent on the facts.
• Whether the application was procedurally ripe, including whether the trustees had taken a formal resolution to require removal of the dish.
• What just and equitable ancillary order should be made under section 54(3) of the CSOS Act.

The application was refused. Specifically, the applicant's relief under section 39(2)(d) and section 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 that meeting for input. No order as to costs was made.

A satellite dish attached to common property may constitute an 'article' under section 39(2)(d) of the CSOS Act, but removal relief will not necessarily be granted merely because prior written approval was disputed or absent. Where the body corporate cannot show that its demand for removal was founded on a proper formal trustee resolution, and where the proposed alternative placement may be less suitable from an aesthetic perspective, an application for removal may be premature and should be refused. In such circumstances, an adjudicator may, under section 54(3), direct the trustees to properly consider the owner's application and make a reasonable decision.

The adjudicator observed that relocating the dish to the chimney might make it more visible and aesthetically more prejudicial to the scheme, notwithstanding available space on the chimneys. The adjudicator also made general observations that parties in CSOS adjudications usually bear their own costs and that cost orders are more commonly associated with section 53 dismissals for frivolous, vexatious, misconceived, or non-compliant matters. The judgment also referenced prior instances of similar installations in the scheme context, though these observations were not the decisive basis of the order.

The decision is significant in community schemes law because it illustrates the limits of CSOS adjudicative powers, the need to fit relief within section 39 of the CSOS Act, and the importance of proper internal governance by a body corporate before pursuing enforcement relief. It also shows that even where scheme rules require prior written consent for external installations on common property, CSOS may refuse removal relief if the body corporate has not followed proper trustee decision-making processes or if the requested remedy is not shown to be reasonable or practically preferable. The case further demonstrates the use of section 54(3) to craft a fair procedural remedy instead of granting immediate coercive relief.