Pieter Townsend v La Grange De Cabriere Body Corporate

The applicant, Pieter Townsend, is the registered owner of unit RR3 in the La Grange De Cabriere sectional title scheme and the holder of a real right to extend the scheme, described as Real Right 3. He alleged that this right had to be exercised within a period expiring on 14 February 2024, and that the period could be extended by unanimous resolution of the body corporate together with the consent of all bondholders. At the body corporate's annual general meeting on 30 May 2023, a motion was tabled to extend the period for exercising the right until 14 February 2027, but the motion was not passed. The applicant contended that the opposition to the motion was unreasonable, that the refusal was unmotivated, and that the body corporate had acted inconsistently by previously approving plans at a trustees' meeting on 2 May 2023 but later reversing that position at the AGM. He further claimed that unless relief was granted, he would suffer loss of income from delay. The respondent body corporate filed no submissions.

• Whether CSOS had jurisdiction under section 39(4)(d) of the Community Schemes Ombud Service Act 9 of 2011 to declare that opposition to a motion requiring a unanimous resolution was unreasonable and to give effect to the motion.
• Whether an adjudicator may effectively override the absence of a unanimous resolution by members of a body corporate in relation to extending the period for exercising a real right of extension.
• Whether the dispute concerning extension of Real Right 3 and related approval issues fell within the ambit of section 39 of the CSOS Act.
• Whether the applicant had shown, on a balance of probabilities, that he was entitled to the relief sought.

The application was dismissed. The adjudicator ordered that the relief sought by the applicant against the respondent is dismissed, held that the relief further falls outside the ambit of section 39 of the CSOS Act 9 of 2011, and made no order as to costs.

A CSOS adjudicator may grant only relief expressly authorised and competent under section 39 of the CSOS Act. Where the extension of a real right in a sectional title scheme requires a unanimous resolution of the body corporate under the applicable sectional title legislation, the adjudicator cannot substitute that missing unanimous resolution by declaring opposition unreasonable and granting the extension himself. Relief that effectively bypasses the statutory requirement of unanimous member approval falls outside the ambit of section 39.

The adjudicator observed that the legislature appears to have intended to limit or discourage interference by CSOS in decisions of community schemes requiring unanimous resolutions. He also remarked that the categories of relief in section 39 primarily concern matters germane to the scheme and only incidentally affect individual rights, and noted that there was no evidence before him suggesting that the respondent had not acted in the best interests of the scheme.

The decision is significant for community schemes jurisprudence because it underscores the limited statutory jurisdiction of CSOS adjudicators. It illustrates that where sectional title legislation requires a unanimous resolution of members, a CSOS adjudicator will not readily override the failure to obtain such resolution by substituting his or her own decision. The matter also reinforces that section 39 of the CSOS Act does not give adjudicators an open-ended power to intervene in all disputes touching on scheme administration, particularly where the relief sought would effectively replace a body corporate's statutorily required unanimous decision.