Maria Mafadza v M. S. Phetlhe Boitumelo and Directors of Thatchfield Crescent Home Owners Association

The applicant, Maria Mafadza, is the registered owner of a unit in Thatchfield Crescent Home Owners Association. The first respondent, M. S. Phetlhe Boitumelo, is her neighbour in the same estate, and the second respondent is the Home Owners Association. The applicant complained that the first respondent washed her car in a place where water flowed to the applicant's doorway, used a leaf vacuum blower near where the applicant did laundry despite the applicant's daughter suffering from asthma, and installed a camera that allegedly spied on the applicant and invaded her privacy. The applicant also wanted CSOS to recommend that the Home Owners Association introduce rules dealing with invasion of privacy. The first respondent denied wrongdoing, asserted that similar disputes had already been addressed in prior harassment proceedings in the Magistrates' Court, and said the parties had settled those proceedings and agreed to resolve future disputes through their legal representatives and a round-table discussion or mediation. Conciliation under the CSOS process failed, and the matter proceeded to adjudication on the papers.

• Whether the first respondent's alleged conduct constituted a nuisance or behavioural issue justifying relief under section 39(2)(a) of the Community Schemes Ombud Service Act 9 of 2011.
• Whether the relief sought by the applicant fell within the categories of competent relief that a CSOS adjudicator may grant under section 39 of the CSOS Act.
• Whether CSOS could make recommendations or orders requiring the Home Owners Association to introduce rules dealing with invasion of privacy.
• What effect, if any, the parties' prior settlement agreement in Magistrates' Court harassment proceedings had on the CSOS application.

The application for relief under section 39(2)(a) of the CSOS Act was dismissed. The adjudicator further recorded that the parties should first follow their prior agreement to resolve disputes through a round-table discussion and mediation via their legal representatives. No order as to costs was made.

A CSOS adjudicator may grant only competent relief falling within the categories and orders expressly provided for in section 39 of the Community Schemes Ombud Service Act 9 of 2011. Where the relief sought falls outside section 39, including a request that CSOS recommend or require a home owners association to introduce new rules on privacy, the adjudicator lacks jurisdiction to grant it. In the circumstances of this case, the applicant was therefore not entitled to the relief claimed, and the application had to be dismissed.

The adjudicator made general observations that nuisance involves interference with a person's use and enjoyment of property, that owners in a community scheme must tolerate each other's reasonable exercise of ownership rights, and that those rights are limited by standards of reasonableness. The adjudicator also observed, with reference to authority, that CSOS was not intended to adjudicate delictual damages claims and that repositories of power may exercise only powers conferred by law.

This matter illustrates the limited statutory jurisdiction of the Community Schemes Ombud Service. It confirms that CSOS adjudicators may grant only relief expressly authorised by section 39 of the CSOS Act and cannot make free-standing recommendations or regulate matters outside those powers, such as directing the creation of privacy rules where no competent statutory remedy is pleaded. The decision also reflects the tendency to require parties in community-scheme neighbour disputes to use agreed dispute-resolution mechanisms and to distinguish CSOS behavioural relief from delictual damages or broader privacy claims better suited to courts.