Pierre Mostert v Jayson Eaton

The applicant, Pierre Mostert, is the registered owner of unit 35 in Olive Grove, Grassy Park, Cape Town. The respondent, Jayson Eaton, is the registered owner of unit 60 in the same community scheme. Mostert brought an application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 seeking relief under section 39(2)(a) for behavioural issues and section 39(6)(b) for works relating to private or common areas. He alleged that Eaton engaged in disruptive conduct at night by knocking and drilling until the early hours of the morning, and that water ingress affecting his kitchen and bathroom originated from Eaton's unit. He further alleged that Eaton ignored attempts to resolve the matter. The respondent filed no written submissions. The adjudicator requested further information from the applicant, including the scheme's conduct rules and an expert report confirming that the source of the water ingress was the respondent's unit, but the applicant did not provide the requested material.

• Whether the applicant had placed sufficient evidence before the adjudicator to justify a nuisance-related order under section 39(2)(a) of the CSOS Act.
• Whether the adjudicator could grant an order requiring repairs under section 39(6)(b) without proof that the leak originated from the respondent's unit.
• Whether the applicant, who bears the onus of making out his case under the CSOS Act and Practice Directive, had complied with the evidential requirements necessary for relief.
• Whether the application should be dismissed under section 53(1)(b) where the adjudicator was unable to evaluate the relief sought due to missing information.

The relief sought by the applicant in terms of sections 39(2)(a) and 39(6)(b) of the CSOS Act was dismissed in terms of section 53(1)(b) of the CSOS Act. No order as to costs was made.

In a CSOS dispute, the applicant bears the onus of submitting all relevant information needed to establish entitlement to relief. Where the adjudicator requests further evidence material to the determination of nuisance allegations or repair liability, and the applicant fails to provide it, the adjudicator may be unable to determine the matter on a balance of probabilities and may dismiss the application under section 53(1)(b) of the CSOS Act, notwithstanding the respondent's failure to oppose.

The adjudicator noted the general approach that only relevant evidence should be considered, that proof is assessed on a balance of probabilities, and that dissatisfied parties may appeal to the High Court under section 57 of the CSOS Act on a question of law only within 30 days. These observations were explanatory and ancillary to the dispositive finding on the applicant's failure to provide sufficient information.

The decision illustrates an important procedural principle in CSOS adjudications: even where a respondent defaults or files no submissions, the applicant must still discharge the evidential burden and provide sufficient documentary support for the relief sought. It underscores the practical operation of sections 38, 50, 51 and 53 of the CSOS Act and the CSOS Practice Directive, particularly that nuisance and repair claims in community schemes require proper proof, including supporting rules and expert evidence where causation is disputed.