Melusi Patrick Mthembu v Highlands Park Body Corporate and Trustees of Highlands Park Body Corporate

The applicant, Melusi Patrick Mthembu, is the registered owner of unit 15 in the Highlands Park sectional title scheme in Pinetown, KwaZulu-Natal. He brought an application to the Community Schemes Ombud Service (CSOS) under s 38 read with s 39(6)(a) of the Community Schemes Ombud Service Act 9 of 2011, seeking an order that the body corporate clean the outside wall of his unit and carry out maintenance relating to common areas at the body corporate’s cost. The dispute arose after the body corporate relied on a proposed AGM decision of 22 August 2022 and clause 13.2 of the scheme’s conduct rules to contend that owners were responsible for cleaning the exterior of their units. The respondents alleged that the applicant had refused to clean the outside of his unit and that contractors appointed by the body corporate were denied access to his premises, with an intended cleaning charge of R500 to be added to his account. The applicant denied liability, denied obstructing access, and argued that the exterior walls, roof and windows formed part of the common property for which the body corporate was responsible under the Sectional Titles Schemes Management Act 8 of 2011 (STSMA). A similar earlier CSOS dispute between the parties had been dismissed, but the adjudicator noted that the present matter turned on the allocation of maintenance responsibility.

• Whether the outside wall of the applicant’s unit formed part of the common property for which the body corporate bears maintenance responsibility under the STSMA.
• Whether the body corporate could, by AGM decision or conduct rule, impose responsibility on an owner to clean and maintain the exterior wall of his unit.
• What effect, if any, unregistered or non-CSOS-registered conduct rules had in determining maintenance obligations within the scheme.
• Whether the body corporate was entitled to recover the cleaning cost from the applicant by debiting his levy account.
• Whether ancillary relief should be granted directing trustees to consider amending the conduct rules to align with the STSMA and regulations.

The application was granted. The adjudicator ordered, in terms of s 54(1) read with s 54(3) of the CSOS Act, that the applicant’s relief under s 39(6)(a) concerning cleaning of the outside wall of his unit be granted, and that the second respondent discuss possible amendments to the conduct rules at the next trustee meeting on or before 29 February 2024 so as to align them with the STSMA and regulations. No order as to costs was made.

Under the STSMA, maintenance of common property is the responsibility of the body corporate, while owners are responsible only for maintaining their sections within the sectional boundaries. A body corporate cannot validly shift statutory responsibility for common-property maintenance to individual owners through AGM resolutions or conduct rules that are inconsistent with the STSMA and prescribed management rules. Where exterior walls constitute common property, the body corporate must bear responsibility for their maintenance and related costs.

The adjudicator observed that all scheme rules should be registered with CSOS and that rules come into effect only upon certification by the Service. The adjudicator further commented that the existing conduct rule appeared irreconcilable with prevailing legislation and that trustees should amend the rules to align with the STSMA and regulations. The adjudicator also noted that the same principle would apply to another owner (unit 10), although that owner was not a party to the dispute.

The matter is significant for sectional title governance because it affirms that the body corporate bears statutory responsibility for maintenance of common property, including exterior walls, and cannot override the STSMA by informal AGM decisions or inconsistent conduct rules. It also underscores the importance of ensuring that scheme rules are compliant with and properly processed under the CSOS/STSMA framework. The decision is a practical illustration of the hierarchy between legislation and scheme rules in South African community schemes law.