Pieter Willem Engels v Hennie Gouws

The applicant, Pieter Willem Engels, is the registered owner of unit 42 in the Hillcrest Homeowners' Association scheme in Amberfield Heights, Centurion, Gauteng. The respondent, Hennie Gouws, owns unit 39 in the same scheme. Engels lodged a CSOS application on 7 July 2023 under section 39(2)(a) of the Community Schemes Ombud Service Act 9 of 2011, alleging behavioural misconduct by Gouws. The complaint related to two incidents: first, an incident on 28 September 2022 involving swearing and alleged violent behaviour by the respondent towards the applicant and his wife; second, an incident on 1 October 2022 in which a brick was thrown, causing damage to the aluminium window frame of the applicant's property. The background to the dispute included complaints about the respondent's stray cat roaming in the complex. The respondent stated that a criminal assault case had been opened against the applicant in relation to the September 2022 incident, acknowledged throwing a brick but said it was thrown at the applicant's cat after that cat allegedly bit their cat, and also complained that the applicant had installed a CCTV camera that interfered with their privacy. The applicant sought a protection or restraining order against the respondent and/or other legal action.

• Whether the CSOS adjudicator had jurisdiction under section 39 of the CSOS Act to grant a protection, harassment or restraining order against the respondent.
• Whether the respondent's alleged conduct constituted a 'nuisance' within the meaning of section 39(2)(a) of the CSOS Act.
• Whether the application was without substance, misconceived, frivolous or vexatious for purposes of section 53(1)(a) of the CSOS Act.
• 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.

CSOS adjudicators, as statutory decision-makers, may grant only those remedies specifically provided for in section 39 of the CSOS Act and have no jurisdiction to issue protection, harassment or restraining orders outside that statutory framework. Further, for conduct to justify relief as a behavioural nuisance under section 39(2)(a), the evidence must show an objectively unreasonable, material or substantial interference with the complainant's use or enjoyment of property or scheme living; unsubstantiated allegations or isolated interpersonal incidents that do not meet the legal standard of nuisance are insufficient.

The adjudicator's extended discussion of the common-law concept of nuisance, including references to the standard of the normal person, the 'give and take, live and let live' principle, and the balancing of the gravity of harm against the utility of the conduct, was broader than necessary once jurisdictional limits and lack of substantiating evidence were found. The observation that appropriate protection-related relief should be sought from the relevant Magistrates' Court was also ancillary guidance rather than part of the binding determination.

This adjudication is significant in clarifying the limits of CSOS adjudicative power. It confirms that CSOS cannot grant general protection or restraining orders unless the relief sought falls strictly within the remedies authorised by section 39 of the CSOS Act. It also illustrates how nuisance complaints in community schemes are assessed through established South African neighbour-law principles, requiring objectively unreasonable and material interference rather than mere interpersonal conflict or isolated incidents. The case is therefore important for distinguishing between disputes suitable for CSOS relief and those that must be pursued in ordinary courts, especially the Magistrates' Court.