Mahesh Rajcoomar v Nkosinomusa Gumede

The applicant, Mahesh Rajcoomar, is the owner of unit 66 in the Knights Bridge Sectional Title Development in Bruma, Johannesburg. The respondent, Nkosinomusa Gumede, owns unit 72 directly above the applicant's unit. The applicant alleged that his unit sustained water damage, including damage to the ceiling, mould, discoloration, and water ingress into the bedroom and bathroom, allegedly caused by leaks emanating from the respondent's bathroom. On one occasion, the respondent's tenant allegedly left a bathroom tap running, causing the applicant's bathroom and bedroom to be soaked. The matter was reported to the body corporate and managing agent, who arranged for JRE Plumbing to inspect the units. In a report dated 10 March 2023, JRE Plumbing found that the silicone around the respondent's bath had peeled away, creating a path for water seepage, and that the bath waste trap was leaking. Moisture and pooling water were observed under the bath, with water slowly seeping down into unit 66. Video evidence formed part of the report. The applicant stated that internal remedies had been exhausted without success. The respondent relied on a later inspection on 8 June 2023, during which taps were opened and the bath filled, and contended that no visible leaks or water damage were then observed.

• Whether the CSOS had jurisdiction under sections 38 and 39(6)(b)(i) of the Community Schemes Ombud Service Act 9 of 2011 to determine the dispute.
• Whether, on a balance of probabilities, water ingress into the applicant's unit emanated from the respondent's bathroom in unit 72.
• Whether the respondent, as owner of section 72, could be ordered to carry out repairs to his section despite the body corporate not being cited.
• Whether relief relating to repairs to the applicant's unit was premature pending completion of repairs to the respondent's unit.
• Whether any cost order should be made.

The application was granted. The respondent was ordered, in terms of section 54(1) read with section 54(3) and section 39(6)(b)(i) of the CSOS Act, to conduct the necessary repairs to his bathroom area as indicated in the JRE Plumbing report dated 10 March 2023 by 31 January 2024, to the reasonable satisfaction of the trustees of Knights Bridge. A copy of the order was to be distributed to the trustees of Knights Bridge in terms of section 55(1) of the CSOS Act. No order as to costs was made.

Where credible evidence shows on a balance of probabilities that water ingress into one sectional title unit emanates from defects in another owner's private section, CSOS may, under section 39(6)(b)(i) of the CSOS Act, order that owner to carry out specified repairs to his or her section. An owner remains responsible under section 13(1)(c) of the STSMA to repair and maintain his or her section in a state of good repair, even though the body corporate has separate obligations regarding common property. Relief for consequential damage to the affected unit may be refused or deferred if the evidence shows that the extent of such damage can only properly be determined after the source defect has been repaired.

The adjudicator observed that in disputes of this nature the body corporate is usually joined and has important statutory obligations to maintain common property, manage the scheme, and prepare and fund maintenance, repair and replacement plans. The adjudicator also remarked that it was uncertain whether any insurance claim had been lodged, and noted generally that CSOS matters ordinarily do not attract cost orders unless the application is frivolous, vexatious, misconceived, without substance, or there has been non-compliance with section 51.

The decision illustrates the operation of the CSOS dispute-resolution mechanism in sectional title disputes involving inter-owner nuisance or damage caused by defects in private sections. It reinforces that a section owner may be ordered under section 39(6)(b)(i) of the CSOS Act to repair defects in his or her own section where those defects cause damage to another unit. The order also shows the limits of CSOS adjudicators' powers: they are confined to statutory remedies under section 39, and relief for consequential damage may be deferred where the factual basis for such relief remains incomplete. The adjudicator's reliance on Evergreen Property Investments and Kingshaven underscores the principle that CSOS adjudicators must act strictly within their statutory mandate.