Phillimon Kagiso Thamaga v Trustees of Fountain Estate Body Corporate

The applicant, Phillimon Kagiso Thamaga, is the registered owner of Unit 1 in Fountain Estate. He brought a dispute-resolution application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 against the trustees of the Fountain Estate Body Corporate. He alleged that the body corporate had wrongfully refused to provide him with books of account and related financial information requested by email on 24 August 2022; that his levy statement incorrectly reflected charges of R1 104.00 for an insured window allegedly damaged because of loose putty which the body corporate had failed to maintain under its 10-year maintenance plan, and arrears of R586.60; and that his levy statement was being debited with R350.00 for garden services which, according to him, should not have been charged until disciplinary proceedings against a body corporate employee had been completed. The respondent did not file submissions despite being invited to do so. A certificate of non-resolution was issued and the matter proceeded to adjudication on the papers.

• Whether the applicant had been wrongfully denied access to the body corporate's books of account and financial information in terms of section 39(7)(a) of the CSOS Act.
• Whether the charges of R1 104.00 for the insured window and R586.60 arrears on the applicant's levy statement were incorrectly levied or payable and should be removed under section 39(1) of the CSOS Act.
• Whether the adjudicator had jurisdiction under section 39 of the CSOS Act to order the body corporate to stop debiting the applicant's levy statement with R350.00 for garden services pending the completion of disciplinary proceedings against an employee.
• More generally, whether the relief claimed fell within the statutorily permissible categories of orders under section 39 of the CSOS Act.

The application was partially upheld. The adjudicator ordered that: (1) the applicant had been wrongly denied access to information and must be provided with the books of account requested in his email of 24 August 2022; (2) the body corporate and/or Midcity must remove from the applicant's levy statement the amounts of R1 104.00 in respect of the insured window and R586.60 arrears; (3) the respondent must furnish the requested information/books of account within 14 days of receipt of the order, and implement the remainder of the order upon receipt; (4) the request to stop debiting R350.00 for garden services pending disciplinary proceedings was refused for want of jurisdiction under section 39; and (5) there was no order as to costs.

An adjudicator under the CSOS Act may grant only relief that falls within the categories expressly provided in section 39, because CSOS is a statutory body whose powers are limited to those conferred by legislation. Where an owner in a community scheme has been wrongfully denied access to financial records or books of account, section 39(7)(a) authorises an order compelling disclosure within a specified time. CSOS may also order the removal or correction of wrongly levied amounts reflected on an owner's account where such financial relief falls within section 39(1). Relief falling outside section 39 is incompetent and cannot be granted, even if factually connected to the dispute.

The adjudicator made broader observations that decisions of bodies corporate, though not public in nature, are subject to review under principles of legality, reasonableness and lawfulness, with reference to common law, PAJA, the Sectional Titles legislation and section 33 of the Constitution. These remarks, supported by citation to Laguna Ridge and North Global Properties, were not strictly necessary to the dispositive outcome because the matter was ultimately resolved on the basis of the statutory competence of the relief under section 39 and the respondent's failure to contest the applicant's case.

The decision is significant for community-schemes jurisprudence because it illustrates both the breadth and the limits of CSOS remedial powers. It confirms that owners are entitled, in appropriate circumstances, to obtain access to body corporate financial records through section 39(7)(a), and that CSOS may order correction or removal of disputed amounts on levy statements. At the same time, it reinforces that adjudicators may grant only relief expressly authorised by section 39 of the CSOS Act. The case therefore highlights the statutory nature of CSOS jurisdiction and the need to frame prayers for relief within the recognised categories of the Act.