Nonceba Wotshela v Selborne Green Body Corporate

The applicant, Nonceba Wotshela, is the registered owner of Unit 2 in Selborne Green, East London. She received notice of a special general meeting dated 4 July 2023 stating in paragraph 4 that the chairperson intended to involve Moodley & Associates to chair the meeting scheduled for 19 July 2023. The applicant contended that appointing an independent chairperson in this manner was unlawful and contrary to regulations 12 and 18 under the sectional title management framework, and that the matter had never been discussed or approved at a meeting. She sought an order declaring the intended appointment/engagement of Moodley & Associates illegal and requiring the respondent body corporate to explain who made the decision, why it was made, and when. The respondent later stated that Moodley & Associates were in fact not used to chair the special general meeting and that their mention in the notice was merely a suggestion. The matter was adjudicated on the papers under the Community Schemes Ombud Service Act 9 of 2011.

• Whether the dispute had become moot because Moodley & Associates did not in fact chair the special general meeting.
• Whether the relief sought by the applicant fell within the types of relief an adjudicator is empowered to grant under section 39 of the CSOS Act.
• Whether a CSOS adjudicator may grant declaratory or explanatory relief requiring the body corporate to explain who made a decision, why it was made, and when it was made, where such relief is not expressly authorised by section 39 of the CSOS Act.

The application was dismissed in terms of section 53(1)(a) of the CSOS Act on the basis that the relief sought was misconceived. No order as to costs was made.

A CSOS adjudicator may grant only relief that falls within the categories and forms of orders authorised by section 39 of the CSOS Act; section 39(7)(b) does not confer a broad residual power to grant any order of a general nature. Where the complained-of conduct did not occur and the remaining relief sought is outside section 39, the application is misconceived and must be dismissed.

The adjudicator observed, with reference to the cited High Court authorities, that the relief in section 39 concerns matters germane to community schemes and only incidentally to personal rights, and that statutory decision-makers such as CSOS may exercise only powers expressly conferred by legislation. No substantial additional obiter comments beyond these general observations appear from the order.

The decision underscores that CSOS adjudicators have limited statutory powers and may grant only relief expressly authorised by section 39 of the CSOS Act. It also illustrates that where the factual basis for a complaint falls away before adjudication, the dispute may be treated as moot. The case is significant for community schemes because it confirms that CSOS cannot be used to obtain free-standing explanations, advisory rulings, or forms of declaratory relief falling outside the Act’s enumerated remedial framework.