Trustees of Empanihof Body Corporate v Ms Sekese

The applicant, the Trustees of Empanihof Body Corporate, brought a dispute-resolution application under the Community Schemes Ombud Service Act 9 of 2011 against the respondent, Ms Sekese, owner of Unit 11 in the scheme. The complaint was that the respondent had removed a 'devils fork' fence forming part of the body corporate’s common property, allegedly compromising security. The applicant sought an order compelling the respondent to reinstate the fence at her own expense. The respondent admitted removing the fence but said she had done so with the knowledge or consent of trustees when she was chairperson, that she had purchased the carport from the previous owner, and that a neighbouring wall had rendered the fence ineffective. She also argued that the matter had previously been dealt with by CSOS, but the adjudicator found the earlier matter concerned an allegation of theft, which had been dismissed because theft is criminal and outside CSOS’s jurisdiction, whereas the present matter concerned reinstatement of common property. Conciliation failed and the matter proceeded to adjudication on the papers.

• Whether the dispute was barred because a previous CSOS matter had dealt with related facts.
• Whether the respondent’s removal of the fence constituted a nuisance under section 39(2)(a) of the CSOS Act.
• Whether the applicant was entitled instead to relief under section 39(6)(b)(i) of the CSOS Act requiring specified repairs or reinstatement.
• Whether a unit owner or trustees could lawfully authorise removal or alienation of part of the common property without proper consent under the sectional titles legislative framework.

The application succeeded. The respondent was ordered to reinstate the devils fork fence she had removed, at her own cost, within 30 days of the order. If she failed to do so, the applicant was authorised to reinstate the fence and recover the cost from the respondent’s levy account. No order as to costs was made.

Where a unit owner removes or alters part of the body corporate’s common property without lawful authority, the body corporate may obtain relief under section 39(6)(b)(i) of the CSOS Act compelling that owner to reinstate or repair the common property at their own cost. Informal consent or knowledge of trustees is insufficient to validate the removal or alienation of common property, because common property belongs to all members of the scheme and may only be dealt with in accordance with the statutory requirements, including unanimous consent where applicable. A failure to prove nuisance under section 39(2)(a) does not prevent the adjudicator from granting appropriate repair-related relief if established by the facts and law.

The adjudicator remarked, with reference to nuisance principles and De Buys Scott and Others v Scott [2018] ZAFSHC 205, that a nuisance order requires proof of a real disturbance of peace and order, and that the applicant had not established such disturbance here. The adjudicator also referred to Mount Edgecombe Country Club Estate Management Association Two (RF) NPC v Singh and Others (32/2018) [2019] ZASCA 30 to emphasise that owners in community schemes are contractually bound by scheme rules. In addition, the adjudicator observed that the respondent’s request for the managing agent to take over running the complex could not be granted in these proceedings because the respondent had not brought a separate application making out a case for such relief.

This adjudication is significant in community schemes law because it confirms that CSOS may grant restorative relief relating to common property even where a nuisance claim is not made out, provided the facts justify relief under section 39(6)(b). It underscores that common property in a sectional title scheme cannot be removed, altered, or effectively alienated by an owner on the basis of informal trustee permission alone; proper authority under the scheme rules and sectional titles legislation is required. The decision also illustrates the distinction between disputes beyond CSOS jurisdiction, such as criminal theft allegations, and disputes within its jurisdiction concerning reinstatement or repair of common property.