Rui Paulo da Silva Machado v Patience Luxomo

The applicant, Rui Paulo da Silva Machado, is the owner of Unit 30 in Anfield Village, a sectional title scheme in Pinelands, Cape Town. The respondent, Patience Luxomo, owns Unit 33 in the same scheme, apparently situated above the applicant's unit. The applicant alleged that on 2 March 2023 a water leak, said to originate from the respondent's kitchen sink pipe, penetrated the applicant's kitchen ceiling and caused damage to the cornice and area behind the kitchen cupboards. The applicant did not seek an order for repairs to her own unit, but sought an order under section 39(6)(b)(i) of the Community Schemes Ombud Service Act 9 of 2011 compelling the respondent to produce an invoice proving that repairs had been carried out to fix the source of the leak, because her insurer would not authorise repairs to her unit without such proof. The respondent filed no submissions. The matter was referred directly to adjudication after no response was received.

• Whether the applicant had established on a balance of probabilities that the leak originated from the respondent's section or pipework.
• Whether, in the absence of evidence identifying the source of the leak, the respondent could be compelled under section 39(6)(b)(i) of the CSOS Act to produce proof or invoices of repairs.
• How responsibility for leaks and resulting damage should be approached in a sectional title scheme, having regard to section boundaries, common property, and owners' maintenance obligations under section 13(1)(c) of the STSMA.
• Whether the relief sought concerned a matter within the scope of adjudicative relief under section 39 of the CSOS Act, as opposed to personal damages relating only to the interior contents or fittings of an individual unit.
• Whether an adjudicator may grant relief not expressly sought by a party.

The application was refused. The adjudicator ordered that: (1) the relief sought by the applicant under section 39(6)(b)(i) of the CSOS Act is refused; (2) the order takes effect immediately upon electronic service on the parties; and (3) each party must pay its own costs.

A CSOS adjudicator may not grant relief under section 39(6)(b)(i) compelling an owner to prove or effect repairs where the applicant has failed to establish, on a balance of probabilities, that the defect or leak originated from that owner's section or area of responsibility. In sectional title disputes concerning leaks, liability depends on proof of the source of the leak and the relevant sectional or common property boundaries. Further, an adjudicator is confined to the relief pleaded and cannot grant unsolicited relief not sought in the application.

The adjudicator remarked that the applicant could, together with the body corporate, investigate the source of the leak and possibly approach CSOS regarding repair costs, especially if the insurer repudiates the claim. The adjudicator also observed that such repudiation would not absolve the respondent if later investigation established her liability. These comments were advisory and not necessary to the refusal of the relief sought.

The matter is significant for community schemes and sectional title disputes because it illustrates that, even in an unopposed CSOS application, an applicant must produce sufficient evidence linking the complained-of defect or leak to the respondent's section before coercive relief will be granted. It underscores the importance of proving the source of water ingress in sectional title disputes, distinguishing between sections and common property, and framing relief within the powers conferred by section 39 of the CSOS Act. It also reinforces that CSOS adjudicators will not grant relief not sought in the application and that personal damages claims relating only to an owner's internal contents or fittings may fall outside the primary scope of CSOS relief.