Neil Els v Trustees of Squires Gate Body Corporate

The applicant, Neil Els, is the registered owner of unit 19 in Squires Gate, a sectional title scheme in Rondebosch, Cape Town. The respondent is the Trustees of Squires Gate Body Corporate. Els complained that on 3 April 2023 the body corporate submitted to CSOS a document described as an 'Extract from minutes of trustees' meeting held via Teams on February 23, 2023, at 11:00'. When he later inspected the minute register at the managing agent's office, he says he could not locate complete minutes or any separate record of that trustee meeting. He therefore alleged that he had been wrongfully denied access to the minutes of that meeting and sought relief under s 39(7)(a) of the Community Schemes Ombud Service Act 9 of 2011. The respondent answered that the trustees had met on 23 February 2023 only to pass a resolution appointing Zerlinda van der Merwe, as alternate trustee, to handle communications with Els on behalf of the body corporate, and that the document already provided was the complete record of what was decided because no other matters were discussed and no fuller minutes existed.

• Whether the applicant had been wrongfully denied access to information or documents under s 39(7)(a) of the CSOS Act.
• Whether the respondent body corporate was obliged under Prescribed Management Rule 27 to provide additional trustee meeting minutes where it asserted that no further record existed.
• Whether the document described as an extract of minutes could constitute the only existing record of the trustee meeting and resolution.

The application was dismissed in terms of s 53(1)(a) of the CSOS Act. The adjudicator ordered that the relief sought by the applicant under s 39(7)(a) was misconceived and accordingly dismissed. No order as to costs was made.

A member of a body corporate may seek relief under s 39(7)(a) of the CSOS Act where access to existing records or documents has been wrongfully denied, read with PMR 27 governing access to governance records. However, such relief is unavailable where the respondent establishes, on a balance of probabilities, that no further record or document exists beyond what has already been provided. An adjudicator cannot compel a body corporate to make available information or documents that do not exist.

The adjudicator observed, by reference to PMR 27, that body corporates must prepare and update minutes of general and trustee meetings and must make such records available on request within the prescribed time periods, and may charge a reasonable copying fee. The order also noted the statutory right of appeal to the High Court under s 57 of the CSOS Act on a question of law only. No substantial broader obiter on legal policy appears in the decision.

The decision is significant in the community schemes context because it clarifies the limits of document-access relief under the CSOS Act and PMR 27. While members are entitled to inspect body corporate records, CSOS relief for denial of access depends on the existence of the requested record. A body corporate cannot be compelled to produce fuller minutes or additional documents where the adjudicator accepts that no such records exist. The matter illustrates the practical interaction between s 39(7)(a) of the CSOS Act and PMR 27 governing governance records of sectional title schemes.