Mthembu v Singh

The applicant, Mr Melusi Patrick Mthembu, was a shareholder in unit 1704 of the Yarningdale Share Block Scheme in Durban. The respondent, Mrs Shivon M. Singh, was a shareholder in adjacent unit 1803. The applicant complained of recurring water damage to her flat from late 2018 or early 2019, again in 2020, and more seriously in 2021. She believed the leak originated from the respondent's bathroom in unit 1803 and alleged that the respondent was temporarily patching the problem with silicone instead of undertaking permanent repairs. The applicant asked that the respondent remove the silicone and rerun a dye test, and if the leak was confirmed, redo the bathroom. The respondent denied that unit 1803 was the source of the leak, relying on assessments by plumbing companies and two negative dye tests. The respondent also pointed out that unit 1804, not unit 1803, was directly above the applicant's flat and shared the common supply and drainage system with it. The matter came before the CSOS after conciliation failed.

• Whether the applicant proved that the water ingress into unit 1704 originated from the respondent's unit 1803.
• Whether the relief sought fell within section 39(6)(b)(i) of the Community Schemes Ombud Service Act 9 of 2011.
• Whether the dispute qualified as a 'dispute' concerning the administration of a community scheme under the CSOS Act.
• Whether the CSOS adjudicator had jurisdiction to compel the respondent to undertake the steps demanded by the applicant.

The relief sought in terms of section 39(6)(b)(i) of the Community Schemes Ombud Service Act was refused. No order as to costs was made.

A CSOS adjudicator may grant only competent relief within the powers conferred by section 39 of the CSOS Act. Where an applicant fails to prove, on the facts, that the respondent is responsible for the complained-of condition, and where the dispute does not concern the administration of a community scheme as contemplated by the Act, CSOS lacks jurisdiction to compel the respondent to undertake the demanded repairs or investigative steps.

The adjudicator referred to Harjevan Prag N.O and Another and observed that the CSOS Act is directed at governance, regulatory, and certain behavioural disputes within community schemes, and not at delictual claims involving wrongfulness, fault, and quantification of damages, which are matters better left to courts. The order also recorded the parties' right of appeal to the High Court on a question of law under section 57 of the CSOS Act.

The matter illustrates the limits of CSOS jurisdiction in South African community schemes law. It confirms that CSOS adjudicators may grant only relief authorised by the CSOS Act and cannot determine disputes that are essentially unsupported factual allegations or delictual/property damage claims falling outside scheme administration. The decision also underscores that applicants must establish a factual basis for linking the complained-of defect or damage to the respondent against whom relief is sought.