Trustees of Tokai Villas Burgundy Body Corporate v Executors of Estate of Late R. Blomkamp and Occupiers of Unit 53 Tokai Villas Burgundy Body Corporate

The applicant, the Trustees of Tokai Villas Burgundy Body Corporate, brought a dispute under section 38 of the Community Schemes Ombud Service Act 9 of 2011 against the executors of the estate of the late R. Blomkamp, as owner-related respondents, and the occupiers of Unit 53. The unit formed part of the deceased estate. The body corporate alleged that the occupiers, believed to be relatives of the deceased, engaged in persistent disruptive conduct including screaming, shouting, abuse, foul language, and slamming of car and building doors. The applicant stated that numerous complaints had been received from other residents, who reported being woken by the noise over a prolonged period. The applicant also alleged that the volatile situation intimidated owners, agents, and prospective buyers. The executors acknowledged awareness of the noise complaints and said they had notified the occupants, but no substantive remedial relief was proposed. After non-resolution of the dispute, the matter proceeded to adjudication on the papers.

• Whether the conduct of the occupiers of Unit 53 constituted a nuisance under section 39(2)(a) of the CSOS Act.
• Whether the conduct disturbed the peaceful use and enjoyment of other members' sections and common property within the scheme.
• Whether the owner/executors were obliged to ensure that occupiers of the unit complied with the body corporate's conduct rules.
• Whether the body corporate was entitled to obtain an order compelling compliance with the scheme's conduct rules and cessation of the impugned behaviour.

The application was upheld. The adjudicator granted the relief sought, directed the respondents to comply with the applicant's conduct rules, refrain from causing any nuisance, and cease the volatile behaviour between the elderly and younger occupant. The second respondents (occupiers of Unit 53) were ordered to comply with and adhere to the conduct rules within 5 days from receipt of the order. No order as to costs was made.

Conduct by occupiers in a sectional title scheme that materially interferes with other residents' peaceful use and enjoyment of their property, including persistent shouting, screaming, foul language, and disruptive noise in breach of conduct rules, constitutes a nuisance for purposes of section 39(2)(a) of the CSOS Act. A body corporate is entitled to enforce its conduct rules through CSOS relief, and owners or those standing in their place must take reasonable steps to ensure that occupiers comply with those rules, which bind occupiers as well as owners under the STSMA framework.

The adjudicator made broader observations that ownership in a community scheme carries reciprocal duties of tolerance and reasonableness, and that an owner's freedom to use property is limited by the obligation not to exceed acceptable bounds of conduct within a shared residential environment. The decision also included a general definition of nuisance, sourced from Wikipedia, as interference with the use and enjoyment of property. These remarks were explanatory rather than necessary to the ultimate order.

The decision is significant in community schemes law because it affirms the CSOS's remedial power under section 39(2)(a) of the CSOS Act to address behavioural disputes and nuisance within sectional title schemes. It reinforces that body corporate conduct rules are enforceable against both owners and occupiers, and that owners or estate representatives must take reasonable steps to secure compliance by occupants. The adjudication also reflects the accepted South African principle that community scheme rules are binding in a contractual sense on those who elect to live in such schemes.