Thuleleni Ruth Mbatha v Sibusiso Mthabela

The applicant, Thuleleni Ruth Mbatha, is the registered owner of unit 70 in the Lamichelle sectional title scheme in Richards Bay. The respondent, Sibusiso Mthabela, owns unit 74, situated above the applicant’s unit. The applicant alleged that a water leak from the respondent’s unit caused severe damage to her bathroom walls and ceiling, created a damp smell, and led to her tenant vacating the unit, resulting in loss of rental income. On 10 May 2022, the owners of units 70, 74, and 76 allegedly agreed that a plumber would be called to fix the leaks, and the managing agent circulated the agreement. On 22 May 2022, the applicant accompanied a plumber to unit 74, but access could not be gained. The respondent thereafter allegedly failed to cooperate despite emails, calls, WhatsApp messages, and letters from the managing agent. The respondent filed no response in the CSOS proceedings. The applicant sought an order under section 39(6)(b)(i) of the CSOS Act directing the respondent to repair the leak, repair consequential damage, and repaint the affected bathroom areas.

• Whether the applicant proved on a balance of probabilities that the water leak emanated from the respondent’s unit.
• Whether the respondent could be ordered under section 39(6)(b)(i) of the CSOS Act to carry out specified repairs.
• Whether, in the absence of proof identifying the source of the leak and without the body corporate being joined, ancillary relief could nevertheless be granted.
• What role the body corporate must play under PMR 31(2) where an owner’s failure to maintain a section materially prejudices other owners or the scheme.

The adjudicator refused to grant a direct repair order against the respondent under section 39(6)(b)(i) of the CSOS Act. Instead, an ancillary order was made under section 54(3) directing the body corporate to appoint a leak detector to investigate and provide a full report establishing where the leak emanates from, to effect repairs accordingly, and to recover the reasonable costs of repairs from the responsible owner in terms of PMR 31(2). No order as to costs was made.

A party seeking relief under section 39(6)(b)(i) of the CSOS Act must place sufficient objective evidence before the adjudicator to prove on a balance of probabilities that the identified respondent is responsible for the defect or damage complained of. In the absence of such proof, a direct order compelling that owner to undertake repairs cannot be made. Where the defect materially prejudices the interests of the body corporate or occupiers, PMR 31(2) empowers and obliges the body corporate to investigate, remedy the failure, and recover reasonable costs from the responsible owner.

The adjudicator observed that the respondent probably refused access and that the leak probably originated from the respondent’s unit, but these observations were not sufficient to found liability without objective proof. The adjudicator also remarked that the applicant should not be prejudiced by failing to join the body corporate, and that in an emergency the body corporate could act without prior demand or notice under PMR 31(2).

The decision illustrates that in CSOS repair disputes an applicant must prove, on a balance of probabilities, the factual source of a defect before an adjudicator will compel a particular owner to repair under section 39(6)(b)(i). It also highlights the central role of the body corporate under the STSMA and PMR 31(2) in addressing maintenance issues that affect other owners or prejudice the scheme, particularly where the responsible owner is uncooperative or where the source of the problem has not yet been objectively established.