Suven Kander v Directors of Waterfall Country Estate Home Owners Association

The applicant, Suven Kander, is the registered owner of stand 3325 in Waterfall Country Estate. He built or incurred costs in relation to a boundary wall and sought contribution from neighbouring owners for shared wall costs. According to his submissions, in 2021 he approached the owner of stand 3326 to share the boundary wall costs, but that owner refused. He then approached the Home Owners Association (HOA) for assistance. In 2022 he also approached, through the HOA, another neighbouring owner in relation to sharing the wall costs when that neighbour began building on the adjacent property. He further complained that another neighbour, Mr Ntsala of stand 3324, started plastering the wall without his permission. The applicant brought a CSOS application against the Directors of Waterfall Country Estate Home Owners Association seeking an order that the respondent compensate him for the shared costs of building the boundary wall. The respondent contended that the true dispute was between neighbouring owners, not between the applicant and the HOA; that the wall was not part of common property under the HOA's care; and that there was no HOA conduct rule governing boundary walls.

• Whether the dispute fell within the jurisdiction of the Community Schemes Ombud Service under the CSOS Act as a dispute concerning the administration of a community scheme.
• Whether the Home Owners Association was the correct respondent, given that the underlying dispute appeared to be between neighbouring owners.
• Whether the relief sought under section 39(6)(b) of the CSOS Act could include compensation for shared boundary wall construction costs.
• Whether an adjudicator under the CSOS Act may grant relief that is in substance a delictual or damages claim rather than a scheme governance or behavioural order.

The application was dismissed. The relief sought by the applicant against the respondent in terms of section 39(6)(b) of the CSOS Act was refused. No order was made as to costs.

A CSOS adjudicator may grant only the forms of relief authorised by section 39 of the CSOS Act in disputes concerning the administration, governance or behavioural regulation of a community scheme. Where the substance of the claim is a private damages or contribution dispute between neighbours, and the cited association is not the true party to the dispute, the relief is not competent under section 39(6)(b) and the application must be dismissed.

The adjudicator referred, with approval, to the High Court's observations in Prag N.O v Trustees for the time being of the Mitchell's Plain Industrial Enterprises Sectional Title Scheme Body Corporate and Others that CSOS was not designed to adjudicate delictual damages claims involving questions of wrongfulness, fault, causation and quantum, which are better suited to courts. The order also recorded the parties' right of appeal to the High Court under section 57 of the CSOS Act on a question of law only.

The decision is significant for confirming the limits of CSOS adjudicative power in community scheme disputes. It illustrates that CSOS adjudicators may not determine claims that are in substance damages or contribution claims between neighbours merely because they arise in a community scheme setting. The matter underscores that a proper respondent must be cited and that disputes concerning private boundary-wall cost sharing may fall outside CSOS jurisdiction unless they squarely concern scheme governance, conduct rules, or other relief specifically authorised by section 39 of the CSOS Act.