Rotary Park Aftree-Oord Body Corporate v Kina Joubert

The applicant, Rotary Park Aftree-Oord Body Corporate, is the body corporate of a sectional title retirement scheme in Swellendam. The respondent, Ms Kina Joubert, is the registered owner of unit 2 in the scheme. A wire fence had been erected around the yard behind the unit by a previous owner or occupant, allegedly with permission granted at the time. The applicant contended that any such permission was merely a personal indulgence granted to the previous owner, did not create a transferable real right, and was not reflected in the scheme rules or records. The body corporate also said that no proper application or resolution authorising the enclosure could be found and that the current conduct rules do not permit such enclosures. At an AGM on 25 May 2023, 92.3% of members present and voting opposed the continued 'camping off' of the backyard. The respondent maintained that the original approval of the fence was lawful, unconditional apart from the owner paying for it, and that the fence formed part of her property. The applicant approached CSOS under section 39(2)(d) of the Community Schemes Ombud Service Act 9 of 2011 seeking removal of the wire fence, alternatively adjustment of the enclosed exclusive use area under conditions.

• Whether the dispute fell within CSOS jurisdiction under the CSOS Act.
• Whether a wire fence enclosing a yard/exclusive use area constituted an 'article' placed on or attached illegally to common or private areas for purposes of section 39(2)(d) of the CSOS Act.
• Whether the applicant had followed a proper administrative or internal process before seeking removal of the fence.
• Whether it was appropriate for the adjudicator to grant ancillary relief under section 54(3) by directing the respondent to submit a proper application and the trustees to consider it.
• Whether a costs order should be made.

The applicant's relief under section 39(2)(d) was refused. The respondent was ordered, in terms of section 54(3) of the CSOS Act, to submit a proper application for permission to install/keep the garden fence to the trustees on or before 31 May 2024. The applicant's trustees were ordered to convene a trustee meeting on or before 30 June 2024 to discuss and consider the respondent's application regarding the wire fencing and exclusive use area, and to invite the respondent to that meeting. No order as to costs was made.

A CSOS adjudicator, as a functionary exercising statutory powers, may grant only relief that falls within the scope of section 39 of the CSOS Act. Where it is doubtful that the impugned structure falls within section 39(2)(d)'s reference to illegally placed or attached 'articles', and where no proper internal application and decision-making process has been followed concerning the structure, an application for removal is premature. In such circumstances, the adjudicator may use section 54(3) to order that the matter first be properly submitted to and considered by the trustees through a reasonable process.

The adjudicator observed that the word 'articles' in section 39(2)(d) is more commonly used in sectional title practice for objects such as pot plants and satellite dishes, suggesting that a fence may fall outside that provision, though the point was described as debatable rather than finally determined. The adjudicator also made general remarks, with reference to Bato Star, about the meaning of reasonableness in decision-making, namely that the inquiry is not into the best possible decision but whether a reasonable equilibrium was struck in light of the relevant facts and interests.

The decision is significant in community schemes law because it underscores that CSOS adjudicators are confined to the remedies expressly created by section 39 of the CSOS Act and cannot readily stretch those remedies beyond their statutory wording. It also highlights the importance of proper internal governance and procedural compliance in sectional title disputes before coercive relief is sought. The case further illustrates the use of section 54(3) to craft ancillary procedural directions aimed at achieving a fair internal decision-making process rather than granting immediate substantive relief.