Shirley Boissier v Seven Oaks Body Corporate

The applicant, Shirley Boissier, is the registered owner of unit 502 in the Seven Oaks sectional title scheme in Newlands, Cape Town. She complained that birds perched on the roof above her balcony and deposited excrement onto her balcony and canvas awning. According to her, the trustees had previously permitted bird spikes to be installed above her balcony at her own cost, and those spikes were later removed during painting of the building and not replaced. She repeatedly requested the body corporate to replace them. A prior CSOS dispute was settled on 12 September 2023 after the respondent stated that bird spikes had been reinstalled. The applicant thereafter alleged that the spikes had been installed incorrectly, too far back from the front wall, with the result that bird excrement continued to fall onto her balcony. She brought a fresh CSOS application seeking an order that the respondent install the bird spikes properly. The respondent contended that the spikes had been installed pursuant to the earlier settlement, that there had only been one further reported incident shortly after settlement, that no further incidents had been reported, and that the applicant had not proved that any later excrement came from birds sitting in the roof area covered by the spikes.

• Whether the applicant proved, on a balance of probabilities, that the bird spikes were defectively installed and that repairs or maintenance by the body corporate were required.
• Whether the relief sought by the applicant fell within the adjudicator's statutory powers under section 39 of the Community Schemes Ombud Service Act 9 of 2011.
• Whether the application was misconceived or without substance and therefore liable to dismissal under section 53(1)(a) of the CSOS Act.

The application was dismissed in terms of section 53(1)(a) of the CSOS Act as misconceived and without substance. No order as to costs was made.

A CSOS adjudicator may refuse relief and dismiss an application under section 53(1)(a) where the applicant has not established the complaint on a balance of probabilities and, in particular, where the relief sought is not relief contemplated by section 39 of the CSOS Act. Because CSOS is a statutory body, its adjudicators may grant only orders expressly authorised by the Act.

The adjudicator remarked that, given the number of balconies in the building, it seemed improbable that the applicant would be the only owner experiencing bird excrement on a balcony. The adjudicator also observed that the excrement visible in the respondent's photographs appeared to be on the side of the spikes where birds were free to sit, rather than within the protected perimeter. These observations were not essential to the core jurisdictional holding.

The matter illustrates the limits of CSOS adjudicative jurisdiction: even where a factual complaint exists, an adjudicator may grant only relief authorised by section 39 of the CSOS Act. It also underscores that applicants must both prove the factual basis for their complaint on a balance of probabilities and formulate their relief within the statutory framework. The decision reflects the principle, recognised by the Western Cape High Court, that CSOS adjudicators are confined to competent statutory remedies.