Jennifer Christy Du Plessis v Rizaan Samuels

The applicant, Jennifer Christy Du Plessis, is the owner of Unit 01 in Firmount Body Corporate, Bantry Bay, Cape Town. The respondent, Rizaan Samuels, is the owner of Unit 05 above her. The applicant alleged that since March 2022 her unit had suffered water damage and mould caused by leaks from the respondent’s shower and/or basin. She said the matter had been reported to the managing agent, the previous owner of Unit 5, and the respondent more than 15 months earlier. According to her, repairs to her bedroom ceiling and processing of an insurance claim could not proceed unless there was an official report confirming that the respondent’s bathroom and all leaking points had been repaired. She contended that the respondent refused to provide such proof and also refused to use the allegedly defective shower/basin so that continued leaking could be tested. She further asserted that the body corporate had already twice waterproofed and repaired an external balcony and had conducted flood tests showing no exterior leak, leaving only the respondent’s bathroom as the possible source. The respondent filed emails, photographs and invoices, but did not directly engage the central complaint. The applicant sought an order under section 39(6)(b) of the Community Schemes Ombud Service Act 9 of 2011 requiring the respondent to provide a professional report confirming that no leak emanated from his unit.

• Whether the relief sought by the applicant fell within the categories of relief competent under section 39 of the Community Schemes Ombud Service Act 9 of 2011.
• Whether the applicant had established on a balance of probabilities that the respondent’s unit was the source of the leak and resulting damage.
• Whether an adjudicator under the CSOS Act has power to compel a private individual to provide a professional report confirming the absence of leaks.
• How responsibility for maintenance and repair is allocated between an owner and the body corporate under the Sectional Titles Schemes Management Act, depending on whether the source of water ingress is within a section or in common property.

The application was dismissed. The adjudicator refused the relief sought by the applicant and made no order as to costs.

A CSOS adjudicator may grant only relief that is authorised by section 39 of the CSOS Act and otherwise conferred by the statutory framework; the adjudicator has no power to compel a private owner to provide a professional report merely because another owner seeks confirmation that no leak exists. In a sectional title leak dispute, the applicant bears the onus of establishing, on a balance of probabilities, the origin of the leak before liability for repairs or related relief can be determined. Where the source of water ingress has not been proved, and the relief sought is not competent under the Act, the application must fail.

The adjudicator observed that the applicant ought to have pursued the body corporate to appoint a leak detection specialist, or alternatively engaged such a specialist herself. He further commented that it was unfortunate the body corporate had not been joined as a respondent, because an order requiring it to appoint a leak detection specialist may have been appropriate. These remarks were advisory and not necessary to the refusal of the actual relief sought.

The matter is significant in community schemes jurisprudence because it underscores that CSOS adjudicators are confined to the remedies expressly authorised by the CSOS Act and cannot craft extra-statutory orders, even where a practical problem plainly exists. It also highlights the importance of properly identifying the source of a leak in sectional title disputes and of joining the correct party, especially where common property may be implicated. The order illustrates the evidential burden on an applicant in CSOS proceedings and the need to formulate relief that is competent, precise and enforceable under section 39.