The Trustees of Inge-Le Body Corporate v Mr Thabang Mamaru

The applicant, the Trustees of Inge-Le Body Corporate, brought a dispute to the Community Schemes Ombud Service (CSOS) concerning the respondent, Mr Thabang Mamaru, the registered owner of unit 62 in the scheme. Before taking occupation in March 2023, the respondent sought permission to install a gate or enclosure adjacent to his unit. His proposal would have enclosed an area of common property between units 62 and 63. The trustees objected to the proposal on the basis that it would encroach on common property, interfere with service lines and servitudes, and be aesthetically unacceptable. They stated they were willing to allow an enclosure only from the corner of the unit to the boundary wall, in line with the scheme’s standards, and contended that an existing 'afdak' or carport-type structure on the site was oversized compared with approved plans and posed a safety risk. The respondent argued that the area had historically been used by the previous owner under an alleged arrangement with the developer, that similar common property areas in the complex had been allocated or enclosed for the benefit of other owners, and that he was being treated unfairly. He maintained that the trustees had shifted their position and were not engaging in good faith. The matter went through conciliation unsuccessfully and was referred to adjudication, including an on-site inspection and face-to-face hearing on 16 May 2024.

• Whether the relief sought by the applicant fell within the types of relief an adjudicator is empowered to grant under section 39 of the Community Schemes Ombud Service Act 9 of 2011.
• Whether the CSOS adjudicator had jurisdiction or statutory competence to 'assist the parties in deciding the matter' where the relief requested was not framed as a section 39 remedy.
• Whether, in light of the statutory limits on CSOS powers, the application had to be dismissed as misconceived regardless of the underlying dispute about enclosure of common property.

The application was dismissed in terms of section 53(1)(a) of the CSOS Act as misconceived and without substance. There was no order as to costs.

A CSOS adjudicator may grant relief only if the application seeks a remedy that falls within one or more of the categories of relief contemplated in section 39 of the CSOS Act. Where the relief sought is not a competent section 39 remedy, the adjudicator lacks jurisdiction or statutory power to determine the dispute on that basis, and the application must be dismissed as misconceived.

The adjudicator observed that both parties were strongly encouraged to settle the dispute amicably, and expressed the considered view that a reasonable settlement would be in both parties’ best interests. The adjudicator also remarked that an adjudication determines who is right or wrong according to law and does not function merely to 'assist' parties in making a decision. These comments were advisory and not necessary to the dispositive ruling.

This decision is significant in South African community schemes jurisprudence because it underscores the jurisdictional limits of CSOS adjudicators. It confirms that even where there may be a genuine dispute within a sectional title scheme, CSOS can only entertain and determine matters where the relief sought is properly framed within section 39 of the CSOS Act. The case illustrates the importance of pleading competent statutory relief and reflects the broader administrative-law principle that statutory bodies may exercise only powers expressly conferred on them.