Paul Marx v Executive Committee of De Kloof Homeowners' Association

Paul Marx, the registered owner of unit 2 in De Kloof Homeowners' Association, brought an application to the Community Schemes Ombud Service under section 38 of the Community Schemes Ombud Service Act 9 of 2011. He sought relief under section 39(4)(a), asking for an order requiring the association to convene an annual general meeting and to provide the scheme's financial statements for the year ending 28 February 2023, because the previous AGM had been held on 25 June 2022. The respondent executive committee stated that after the application was lodged on 18 August 2023, an AGM was in fact held on 16 November 2023 at the request of, among others, the applicant, and that the financial statements for the year ending February 2023 had been completed and discussed at that AGM. The scheme comprises 12 own-title units, and the current trustees had only assumed office in August 2022 after receiving documentation from previous trustees.

• Whether the applicant was entitled under section 39(4)(a) of the CSOS Act to an order compelling the association to call a general meeting.
• Whether the respondent had failed unlawfully to provide the annual financial statements or deny access to information/documents.
• Whether, after the AGM had already been held and the financial statements finalised and circulated, the dispute had become moot.
• Whether the application should be dismissed under section 53(1)(a) of the CSOS Act as misconceived or without substance.
• Whether a costs order should be made against the applicant under section 53(2)(a).

The application was dismissed in terms of section 53(1)(a) of the Community Schemes Ombud Service Act as being without substance. Each party was ordered to bear its own costs.

Where an applicant seeks a CSOS order compelling a homeowners' association to convene a meeting and provide financial statements, but the meeting has already been held and the statements finalised and circulated before adjudication, and there is no evidence of unlawful denial of access to information, the dispute is moot and the application may be dismissed under section 53(1)(a) as without substance. CSOS adjudicators may grant only the relief authorised by section 39 of the CSOS Act and cannot determine matters beyond their statutory powers.

The adjudicator observed, with reference to Mount Edgecombe, that the relationship between homeowners' associations and owners is contractual because owners voluntarily agree to be bound by the scheme's rules when purchasing within the estate. The adjudicator also commented that the application was misconceived rather than frivolous or vexatious, and that in the circumstances no costs order against the applicant was appropriate.

The decision illustrates the limited statutory jurisdiction of CSOS adjudicators and confirms that relief under the CSOS Act will not be granted where the dispute has become moot by the time of adjudication. It also shows that, even where an application is dismissed as misconceived or without substance under section 53, a costs order against an applicant is not automatic. For community schemes, the case is a practical example of how CSOS approaches complaints about AGMs and access to financial information once compliance has already occurred.