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 under section 38 of the Community Schemes Ombud Service Act 9 of 2011 seeking relief under section 39(4)(a). He requested an order requiring the association to convene an annual general meeting (AGM) 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. A certificate of non-resolution had been issued after conciliation failed, and the matter proceeded to adjudication.

• Whether the applicant was entitled to an order under section 39(4)(a) of the CSOS Act requiring the association to call a general meeting of members.
• Whether the respondent had failed to provide the annual financial statements or unlawfully denied access to information or documents.
• Whether, in light of the AGM having been held and the financial statements having been circulated after lodgement of the application, 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) of the CSOS Act.

The application was dismissed in terms of section 53(1)(a) of the CSOS Act as being without substance. Each party was ordered to pay its own costs.

Where an applicant seeks an order under section 39 of the CSOS Act compelling a community scheme to convene a meeting or provide financial information, and the meeting has since been held and the financial statements have been finalised and circulated, the dispute becomes 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 and cannot determine matters outside those statutory powers.

The adjudicator observed, with reference to Mount Edgecombe, that the relationship between owners and a homeowners' association is contractual because owners voluntarily bind themselves to the scheme's rules when purchasing into the estate. The adjudicator also remarked that the application was misconceived rather than frivolous or vexatious, and for that reason no costs order against the applicant was appropriate. No fuller obiter appears from the short adjudication order.

This decision illustrates the CSOS approach to HOA governance disputes where the relief sought has already been overtaken by events. It confirms that CSOS adjudicators will not grant academic or unnecessary relief once the underlying complaint has become moot, and that their remedial powers are strictly limited to those conferred by section 39 of the CSOS Act. It is also a practical example of the governance obligations of homeowners' associations regarding AGMs and financial disclosure, while underscoring that not every procedural grievance will result in relief once compliance has subsequently occurred.