Trustees of Wellington Fruit Growers Body Corporate v Bonny Levy, Representative of the Baruch Shalom Trust

The applicant, the Trustees of Wellington Fruit Growers Body Corporate, brought a dispute under the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) against Bonny Levy, cited as representative of the Baruch Shalom Trust and owner/occupier of units 1 to 3 in the scheme. The body corporate alleged that it required access through section 1, and consequently to sections 2 and 3, in order to complete outstanding plumbing and fire reticulation works and to install water meters. It stated that some access had previously been granted during February to April 2022, but that the works remained incomplete because the respondent was refusing further access. The body corporate contended that the scheme’s insurer would not insure the scheme until the works were completed and the reticulation was compliant, and that municipal by-laws also required compliance. The respondent did not file final written submissions despite being invited to do so. After conciliation failed and a certificate of non-resolution was issued, the matter proceeded to adjudication on the papers.

• Whether the body corporate had established, on a balance of probabilities, that it was entitled to relief under section 39(6)(a) of the CSOS Act.
• Whether the respondent was unreasonably refusing the body corporate access through the respondent’s section(s) to enable completion of plumbing, fire reticulation, and water meter installation works.
• Whether the body corporate’s statutory duties under the Sectional Titles Schemes Management Act required that it be given access to carry out repair, maintenance, and compliance-related work affecting common property or the scheme generally.
• What practical conditions should govern the granting of access, including notice and timing.

The application was granted. The respondent was ordered to provide the applicant with access to section 1 and consequently to sections 2 and 3 for the outstanding plumbing and fire reticulation work and the installation of water meters. Such access had to be provided before 20 September 2023, and the applicant was required to give the respondent at least 5 calendar days’ notice before carrying out the work. No order as to costs was made.

A body corporate charged under the STSMA with maintaining, controlling, and administering common property is entitled, through relief under section 39(6)(a) of the CSOS Act, to an order compelling an owner to provide reasonable access through a section where such access is necessary to carry out outstanding repairs, maintenance, or compliance-related works for the benefit of the scheme generally. Where the applicant establishes on a balance of probabilities that the access is necessary and is being unreasonably refused, the adjudicator may compel access subject to reasonable notice conditions.

The adjudicator’s general remarks about evaluating evidence by relevance, credibility, reliability, and balance of probabilities were explanatory rather than dispositive. The reference to Wimbledon Lodge (Pty) Ltd v Gore NO and Others 2003 2 All SA 179 (SCA), emphasizing that the body corporate is effectively an aggregation of all owners and not separate from their collective interests, appears to have been used illustratively to explain the relationship between owners and the body corporate, rather than to formulate the operative rule. The examples given of common property, such as driveways, parking areas, swimming pools, and electric fences, were also illustrative and not necessary to the order.

The decision is significant within the community schemes context because it affirms that a body corporate may obtain CSOS relief to secure access to private sections where such access is necessary to fulfil its statutory obligations to maintain and manage common property and to ensure scheme-wide compliance. It illustrates the practical use of section 39(6)(a) of the CSOS Act in sectional title disputes and underscores that an owner may not unreasonably obstruct work required for the benefit of the scheme as a whole, including works linked to insurance and municipal compliance.