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 exterior wall of his unit and perform maintenance relating to common areas. The dispute arose after the body corporate contended that, following a decision at the annual general meeting on 22 August 2022 and relying on clause 13.2 of the scheme’s conduct rules, owners were responsible for cleaning the outside walls of their units. The respondents alleged that the applicant had refused to do so and that a contractor appointed to clean non-compliant units was denied access to his premises, with a proposed charge of R500 to be debited to his account. The applicant denied liability for cleaning external walls, denied obstructing access, and argued that under the Sectional Titles Schemes Management Act 8 of 2011 (STSMA) the exterior walls, roof and windows form part of the common property for which the body corporate is generally responsible. A prior related CSOS dispute between the parties (CSOS 1644/KZN/23) had also dealt with responsibility for maintenance of common property and had dismissed the relief sought there.

• Whether the exterior wall of the applicant’s unit constituted common property whose maintenance and cleaning fell under the responsibility of the body corporate.
• Whether an AGM resolution and clause 13.2 of the scheme’s conduct rules could validly shift responsibility for maintenance of common property from the body corporate to individual owners.
• Whether the scheme’s conduct rules were effective and enforceable where they had not been registered with the CSOS and appeared inconsistent with the STSMA and prescribed management regulations.
• Whether the applicant was liable to bear or be debited with the cost of cleaning the exterior wall of his unit.

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

In a sectional title scheme, the body corporate bears responsibility under the STSMA for the maintenance and repair of common property, including exterior areas such as outside walls, and those costs may not be imposed directly on an individual owner merely by AGM resolution or conduct rule where such rule is inconsistent with the STSMA. Scheme rules must accord with the prevailing statutory framework, and an owner’s maintenance obligations are limited to his or her section rather than the common property.

The adjudicator expressed the opinion that all scheme rules should be registered with the CSOS notwithstanding their incorporation or status, and that rules only come into effect upon issuance of a certificate by the Service. The adjudicator also remarked that clause 13.2 of the current rules did not appear reconcilable with prevailing legislation and that trustees should amend the conduct rules to align with the STSMA and regulations. The observation that the same principle would apply to another owner (Unit 10) was also ancillary because that owner was not joined as a party.

The decision is significant for sectional title governance because it reaffirms the default statutory position under the STSMA that maintenance of common property rests with the body corporate, not individual owners. It also underscores that conduct rules and AGM resolutions cannot override the STSMA, and that rules should be registered with CSOS and must be consistent with the governing legislation. The order illustrates CSOS’s role in supervising scheme governance and correcting rules or practices that improperly shift statutory obligations onto owners.