The Trustees of Elma Park Body Corporate v Erf 195 Elma Park

The applicant, represented by its managing agent on behalf of the Trustees of Elma Park Body Corporate, brought a dispute resolution application under section 38 of the Community Schemes Ombud Service Act 9 of 2011. It sought relief under section 39(6)(a) compelling repairs and maintenance to sections 1 and 2 at Elma Park. The body corporate alleged that the sections were in a serious state of disrepair, including water corrosion caused by lack of waterproofing, broken windows, pest problems, and structural defects. It stated that some broken windows had already been repaired at the body corporate's expense and that other repairs were funded through donations, while the body corporate presently lacked funds to repair the two sections. The respondent, cited as Erf 195 Elma Park, opposed the application through attorneys, stating that the entity was in liquidation, that liquidators had been appointed, that other litigation was pending between the parties, and that there was an application to commence business rescue proceedings. The respondent further contended that it had been incorrectly cited, that roof leaks and structural integrity were the responsibility of the body corporate as common property matters, and that the dispute should in terms of section 42(d) of the CSOS Act be dealt with by a court or another competent tribunal.

• Whether the CSOS adjudicator should grant an order under section 39(6)(a) compelling repairs and maintenance in respect of the sections.
• Whether the damage complained of was solely the respondent owner's responsibility, or whether it was partly attributable to the body corporate's duty to maintain common property such as the roof.
• Whether the respondent had been correctly cited, given that the property-owning entity was in liquidation and liquidators had been appointed.
• Whether any order granted would be enforceable in light of the respondent's liquidation/insolvency and business rescue proceedings.
• Whether, under section 42(d) of the CSOS Act, the dispute was more appropriately dealt with by a court or another tribunal rather than by CSOS.
• Whether the issues raised effectively involved matters beyond CSOS's intended jurisdiction, including questions overlapping with insolvency, companies law, and potentially damages-related claims.

In terms of section 54(1)(a) of the CSOS Act, the order sought was refused. No order as to costs was made.

A CSOS adjudicator will refuse repair-and-maintenance relief under section 39(6)(a) where the applicant fails to show that the respondent alone bears legal responsibility for the repairs, particularly where the evidence indicates that common property under the body corporate's control, such as the roof, may have caused or contributed to the damage. In addition, where the cited respondent is in liquidation, the proper parties such as the liquidators must be cited, failing which any order may be unenforceable. A dispute that is complicated by insolvency/business rescue considerations and is better suited to determination by a court may properly be declined under section 42(d) of the CSOS Act.

The adjudicator observed, with reference to authority, that CSOS was not intended to adjudicate delictual damages claims and that such matters involve considerations of wrongfulness, fault, and quantification better left to courts. The adjudicator also remarked that, even if he were wrong on the main grounds, the involvement of the Companies Act, business rescue, and insolvency legislation rendered the matter unsuitable for CSOS and likely to produce an unenforceable order due to the respondent's insolvency. The order records the date of adjudication as 9 January 2023, although the signature line appears to contain a conflicting date reference to 9 January 2022.

The decision illustrates the limits of CSOS adjudication in sectional title disputes. It emphasises that an applicant seeking repair-related relief must properly distinguish between an owner's obligations to maintain a section and the body corporate's obligations to maintain common property such as the roof. It also highlights the importance of correctly citing parties, especially where liquidation has intervened, and confirms that disputes complicated by insolvency, business rescue, or issues more suitable for judicial determination may be declined under section 42(d) of the CSOS Act. The matter is significant as a practical reminder that CSOS is primarily intended for community scheme governance and behavioural disputes, not for complex litigation with insolvency and enforceability implications.