Tebogo Motsai v The Executive Committee of Munyaka Homeowners Association and Elgaru Waterfall

The applicant, Tebogo Motsai, is the registered owner of unit 198 in the Munyaka Homeowners Association scheme in Waterfall City, Midrand. She brought a dispute application under the Community Schemes Ombud Service Act 9 of 2011 after discovering on 1 April 2023 that her estate access application limited her to one visitor per day. This followed an earlier communication from estate management stating that the general visitor limit had been increased to 30 visitors per unit per day after complaints about a previously imposed five-code limit. When the applicant queried why her unit was restricted, she was informed by the estate manager that her unit was under 'access frustration'. The respondents maintained that this was a punitive measure authorised by the residents association committee against units with outstanding levies. They contended that the applicant's own access to the estate, unit and amenities had never been revoked or interfered with, and that only visitor access was reduced. The applicant sought reinstatement of visitor access equal to that enjoyed by other owners and a sanction against the respondents for imposing the restriction.

• Whether the restriction of the number of visitors permitted to access the applicant's unit constituted a dispute capable of relief under the CSOS Act.
• Whether the respondents' imposition of 'access frustration' for arrear levies unlawfully interfered with the applicant's rights as an owner in the scheme.
• Whether limiting visitor access, while not denying the owner's own access, amounted to unlawful spoliation or an impermissible restriction of access under South African law.
• Whether the applicant had discharged the onus of proving, on a balance of probabilities, that she was entitled to the relief sought.

The application was dismissed in terms of section 53(1)(a) of the Community Schemes Ombud Service Act 9 of 2011 as misconceived. No order as to costs was made. The adjudicator also recorded the parties' right of appeal to the High Court on a question of law under section 57 of the CSOS Act.

A restriction imposed by a community scheme on the number of visitors who may access an owner's unit does not, without proof that the owner or occupier's own peaceful and undisturbed access or possession was interfered with, amount to spoliation or justify relief on that basis. Where the evidence shows that the owner retained full personal access to the estate, unit and amenities, the owner fails to establish entitlement to relief merely because visitor access was limited.

The adjudicator observed that court decisions clearly prohibit a community scheme from limiting or denying access to an owner or tenant, citing Fisher v Body Corporate Misty Bay and Zungu v Nilgra Flats CC, and noted that there are numerous CSOS adjudication orders supporting that principle. The adjudicator also remarked that it appeared that if the applicant personally escorted visitors into the scheme there was no restriction on their entry. These comments were not essential to the dispositive finding that only visitor access, and not the applicant's own access, had been restricted.

The decision is significant within the CSOS context because it draws a distinction between unlawful restriction of an owner's own access to a scheme, which may implicate spoliation principles, and a limitation placed only on visitor access. It illustrates the limits of spoliation-based arguments in community scheme disputes and shows that not every access-control measure imposed by a homeowners association will justify relief under the CSOS Act. The matter is also notable for confirming that the applicant must prove actual interference with her own possessory or access rights, not merely inconvenience flowing from restrictions on third parties.