Ngumbela v Selbourne Green Body Corporate

The applicant, Nontsikelelo Albertina Ngumbela, is the owner of Unit 64 in the Selbourne Green sectional title scheme in East London. She complained that for many years the body corporate's support staff cleaned the windows in the scheme, but that this practice was stopped. She alleged that the windows had become very dirty and that certain trustees or persons associated with the body corporate had failed to address the issue. In her application to the Community Schemes Ombud Service (CSOS), she sought relief ostensibly under section 39(6)(a) of the CSOS Act, but in substance asked for declaratory relief that all windows form part of the common property and that all external windows on all floors are the body corporate's responsibility to maintain. She also sought an order compelling the body corporate to comply with employment obligations under the Basic Conditions of Employment Act in relation to three support staff members' contracts. The respondent body corporate contended that although staff had previously assisted with external window cleaning, the conduct rules did not provide that the body corporate was responsible for washing windows, that owners are responsible for keeping their sections in good repair, and that the design and height of some upper-floor windows made cleaning by staff dangerous without safety equipment.

• Whether the relief sought by the applicant fell within the categories of orders that a CSOS adjudicator is empowered to grant under section 39 of the Community Schemes Ombud Service Act 9 of 2011.
• Whether a CSOS adjudicator has jurisdiction to issue declaratory relief determining that all external windows form part of the common property and are the body corporate's responsibility.
• Whether a CSOS adjudicator may order a body corporate to comply with employment-law obligations under the Basic Conditions of Employment Act.
• Whether the application, although framed as one for repairs and maintenance under section 39(6)(a), was in substance misconceived because the actual relief sought lay outside CSOS's statutory powers.

The application was dismissed as misconceived. No order as to costs was made.

A CSOS adjudicator, as a statutory functionary, may grant only those forms of relief expressly authorised by section 39 of the Community Schemes Ombud Service Act. Where an applicant seeks relief that is in substance declaratory in nature, or seeks enforcement of labour-law obligations outside the CSOS statutory scheme, the adjudicator lacks jurisdiction to grant such relief and the application must be dismissed as misconceived.

The adjudicator observed that, applying sectional title principles and the median-line concept, windows may relate to the boundary between sections and common property, but that it would ordinarily be unreasonable for a body corporate to be responsible for cleaning the outside of window panes and doors of a section, except where glass panels form part of the building's external façade. These remarks were not essential to the outcome because the matter was decided on jurisdictional grounds.

The decision is significant for confirming the limits of CSOS adjudicators' statutory jurisdiction. It illustrates that applicants must formulate their claims strictly within the remedies authorised by section 39 of the CSOS Act. Even where a dispute arises within a sectional title scheme, CSOS cannot grant declaratory relief or enforce labour-law obligations unless the relief falls within the Act's specific remedial framework. The matter also underscores the distinction in sectional title law between maintenance of common property by the body corporate and maintenance of sections by individual owners, although the adjudicator did not finally decide that substantive issue here.