The applicant, Trevor Maher Trust, is the owner of Unit 101 in the Gloucester sectional title scheme at 193 Beach Road, Sea Point, Cape Town. The unit is a ground-floor, sea-facing apartment close to the ocean. The applicant alleged that water, moisture and sea salt penetrated through the external walls and caused damp, rising damp, spalling, corroded conduits and electrical boxes, plaster failure and related internal damage in the unit. The applicant contended that these problems were caused by defects or failure in the common property adjacent to the unit and by the body corporate's failure or refusal to undertake proper maintenance and remedial works. The applicant relied principally on a report by structural engineer William Ruijsch Van Dugteren, who attributed much of the damage to moisture ingress through defects in the external envelope, although he also identified rising damp from below floor level in some internal walls and conceded he did not observe actual cracks and that recent exterior renovations may already have addressed the source. The respondent body corporate denied neglect, stating that the building had been regularly maintained, repainted and repaired over the years, including in 2007, 2013/2014 and 2020, and that it had a 10-year maintenance, repair and replacement plan. It relied on reports by Len Nyenes and Reno Roofs indicating that the building was generally well maintained, that spalling and moisture-related deterioration were ongoing issues due to the building's age and proximity to the ocean, and that no external spalling was evident at Unit 101 during the most recent external redecoration project. The applicant sought orders compelling repair and maintenance of common property, specified repairs, and reimbursement for internal repairs already undertaken in the unit.
The application was refused in its entirety. No order as to costs was made; each party was to bear its own costs.
A body corporate's statutory obligation under the STSMA is to maintain common property in a good and serviceable state, while an owner must maintain and repair the owner's own section. The STSMA does not automatically impose liability on a body corporate for consequential damage suffered within an individual section. Where no breach of the body corporate's statutory maintenance duty is proved, an owner cannot obtain an order compelling the body corporate to reimburse internal repair costs. Further, a claim for reimbursement based on alleged causal damage to a section is in substance a delictual damages claim, which falls outside the type of dispute and relief contemplated for adjudication under section 39 of the CSOS Act.
The adjudicator observed that, although the existing 10-year maintenance repair and replacement plan had been complied with, the scheme's proximity to the ocean and the nature of the deterioration encountered suggested that this would be an opportune time to review and update the maintenance plan to account for present conditions. The adjudicator also remarked generally on the need for annual review of such plans as 'living' documents.
This decision is significant in South African community schemes jurisprudence because it reinforces the distinction between a body corporate's statutory duty to maintain common property and an owner's duty to maintain the interior of the section. It also confirms, with reference to the Western Cape High Court decision in Harjevan Prag, that consequential damage claims by individual owners against a body corporate are not automatically recoverable under the CSOS dispute-resolution framework and may instead amount to delictual damages claims better suited for determination by courts. The ruling illustrates the limits of CSOS adjudication in maintenance disputes where the real dispute concerns compensation for damage to an individual unit.