Tanya Gomez v Adrian Hall and The Trustees of Rosehope Body Corporate

The applicant, Tanya Gomez, is the owner of unit 45 in Rosehope Body Corporate in Rosebank, Cape Town. She experienced ongoing damp and water damage in her flat. Above her unit were two balconies attached to other units, including unit 2 owned by the first respondent, Adrian Hall. The applicant alleged that the damp was emanating from those balconies, particularly the first respondent's balcony. She stated that the owner of flat 1 had waterproofed that balcony, but that flat 2 had not initially done so, despite earlier discussions through the managing agent. She sought proof that the first respondent had waterproofed his balcony and asked that he be held responsible for the current damage in her flat. The first respondent denied liability, stated that his balcony had been inspected, that no visible defects were found, and that he nonetheless arranged waterproofing which was completed on 26 February 2021, supported by an invoice. He contended that there was no proof that his balcony was the source of the leak. The second respondent, the trustees of the body corporate, acknowledged broader waterproofing problems in the building, noted that many balconies lacked modern waterproofing due to the age of the building, and indicated that expert input would be required to determine the cause and source of the leaks.

• Whether the applicant proved on a balance of probabilities that the first respondent's balcony was the source of the leaks and damp in her unit
• Whether the first respondent could be ordered under section 39(6)(b) of the CSOS Act to carry out or prove specific repairs without conclusive evidence of causation
• How responsibility for maintenance and repair is allocated between sectional owners and the body corporate under the Sectional Titles Schemes Management Act
• Whether, in the absence of a leak detection report, the adjudicator could determine liability for the damp and repair costs
• Whether the body corporate should be directed to appoint a leak detection specialist to establish the source of the leak

The applicant's requested relief against the first respondent was refused. The second respondent, the Trustees of Rosehope Body Corporate, was ordered within 14 days to appoint a leak detection specialist to investigate the cause and origin of the leaks and issue a leak detection report. The owner of the unit responsible for the leaks was ordered to bear the costs of the report. No order as to costs was made.

A party seeking relief under section 39(6)(b) of the CSOS Act must establish on a balance of probabilities that the respondent is the person responsible for the defect or leak complained of. In a sectional title dispute concerning damp or water ingress, liability cannot be fixed on a particular owner unless the source and cause of the leak are established by adequate evidence. The maintenance obligations under the STSMA are divided between owners in respect of their sections and the body corporate in respect of common property; therefore, determination of the source of the defect is a necessary prerequisite to assigning legal responsibility.

The adjudicator observed that the applicant ought to have requested the body corporate to engage a leak detection specialist or alternatively obtained such expert evidence herself. The adjudicator also remarked that the leak could have arisen from several possible sources, including structural defects, another unit, common property, or the first respondent's unit. In addition, the adjudicator expressed the view that the body corporate should be ordered to appoint a leak detection specialist to establish the source with certainty, even though the applicant's main claim against the first respondent failed. The official law report citation for The Rapallo Body Corporate v Dhlamini NO and Others was not provided in the text, so it cannot be stated more precisely.

The matter is significant in the community schemes and sectional title context because it illustrates that a CSOS applicant must prove causation before repair liability can be imposed on a specific owner. It also underscores the distinction in South African sectional title law between an owner's responsibility for their section and the body corporate's responsibility for common property. The decision further shows the practical role of expert evidence, such as a leak detection report, in water ingress disputes within sectional title schemes, and demonstrates that CSOS adjudicators may craft remedial orders directed at a body corporate even where the applicant fails to prove the case against the cited owner.