Sugendran Moodaliyar v Trustees of Avondale Body Corporate

The applicant, Sugendran Moodaliyar, is the owner of Unit 31 in the Avondale sectional title scheme in Pinetown, KwaZulu-Natal. For over three years, his home experienced repeated flooding during heavy rains. Water and sand washed down from a sand bank situated on common property behind his unit, and a 100 mm stormwater drain behind the unit was allegedly inadequate and frequently blocked by sand. The applicant’s home was flooded on three occasions, two of them severely, causing damage to the interior, home contents, and part of the foundation of a retaining wall. Engineers had been consulted and recommended that the bank be retained and that appropriate drainage, including a channel system, be installed to direct stormwater away from Units 31 and 32. Although the trustees and their managing agent accepted that the work was needed, they did not proceed because at a special general meeting some owners opposed the proposal and the trustees treated the work as an improvement to common property requiring unanimous approval under PMR 29(1). The applicant then approached the Community Schemes Ombud Service for relief under section 39(6)(a) of the CSOS Act, seeking an order compelling the body corporate to carry out the necessary repairs and maintenance.

• Whether the CSOS adjudicator had authority under section 39(6)(a) of the CSOS Act to order the body corporate to carry out repairs and maintenance to the common property.
• Whether the retaining of the sand bank and installation/repair of stormwater drainage constituted necessary maintenance and repairs, or an alteration/improvement to common property requiring unanimous approval under PMR 29(1).
• Whether the body corporate and trustees were legally responsible under the STSMA to maintain the common property, including the embankment and stormwater drain behind the applicant’s unit.
• Whether the respondent’s failure to act on known flooding risks on common property justified mandatory relief.

The relief sought by the applicant was granted. The respondent was ordered, within 30 days of delivery of the order, to conduct the necessary repairs and maintenance to the common property behind the applicant’s home, namely to retain the sand bank and install a drainage system to channel stormwater away. The repairs were to be aligned with the engineer’s report and recommendations. The respondent was further ordered to furnish body corporate members, including the applicant, within 60 days of delivery of the order, with an engineer’s certificate confirming that the retaining-wall repairs had been properly completed in accordance with the National Building Regulations and other applicable legislation. No order as to costs was made.

Where flooding and damage are caused by defective or inadequately maintained common property, the body corporate is legally obliged under the STSMA to carry out the necessary maintenance and repairs. Works such as retaining an eroding common-property embankment and repairing or installing stormwater drainage to prevent recurring flooding are necessary repairs and maintenance, not non-essential improvements to common property under PMR 29(1). Accordingly, an adjudicator may order the body corporate under section 39(6)(a) of the CSOS Act to perform such works.

The adjudicator made strong remarks that the respondent’s stance lacked any logical or legal justification and questioned whether the works would only be seen as reasonably necessary once lives or property were lost. The adjudicator also observed that failure to maintain the embankment and drainage could result in structural damage, insurance difficulties, and danger not only to the applicant’s family but also to other units in the scheme. These comments underscore the seriousness of the trustees’ duties but were not strictly necessary to the dispositive order.

This adjudication is significant in South African community schemes law because it affirms that a body corporate’s duty to maintain common property under the STSMA cannot be avoided by incorrectly classifying necessary remedial works as discretionary improvements requiring unanimous owner approval. It reinforces the accountability of trustees for common-property maintenance, especially where failure to act exposes owners to repeated loss and safety risks. The matter also illustrates the remedial role of the CSOS in compelling compliance with statutory duties in sectional title schemes.