Van Heerden v Trustees of Green Oaks Body Corporate

The applicant, Wilscha Van Heerden, is the registered owner of unit A2 at Green Oaks in Gardens, Cape Town. She complained that a security hut situated outside and close to her bedroom caused noise from security personnel, which affected her own occupation of the unit and made it difficult to rent out. She alleged that attempts to resolve the matter with the body corporate and trustees were unsuccessful, including written communications and an attorney's letter proposing solutions. She applied to the Community Schemes Ombud Service for an order directing the trustees of the Green Oaks Body Corporate to move the security hut to the west side of the building, or alternatively to pay for triple-glazed windows to be fitted in her unit. The respondent stated that the hut had been in that position for approximately 15 years, that the issue was discussed at the annual general meeting on 14 March 2023 attended by the applicant, and that members rejected relocation because the proposed alternative was impractical, would reduce visibility and security, required infrastructure at substantial cost, and was allegedly on provincial land rather than Green Oaks property. The respondent also said the prior security company had been replaced from 1 May 2023 and that no further noise complaints had been received thereafter.

• Whether the adjudicator could order the body corporate to relocate the security hut under section 39(6)(c) of the CSOS Act.
• Whether the body corporate had acted unreasonably or contrary to its duties in refusing to relocate the security hut on common property.
• Whether the adjudicator had jurisdiction under section 39 of the CSOS Act to order the respondent to pay for triple-glazed windows in the applicant's private section.
• Whether the relief sought fell within the competent categories of relief under section 39 of the CSOS Act, read with the STSMA and prescribed management rules.

The adjudicator ordered that the relief sought in terms of sections 39(6)(c) and 39(7)(b) of the CSOS Act was misconceived; the applicant's relief against the respondent was dismissed in terms of section 53(1)(a) of the CSOS Act; and no order as to costs was made.

A CSOS adjudicator may grant only relief that is competent under section 39 of the CSOS Act. Where a body corporate has considered and rejected a proposal concerning common property for rational reasons related to the interests, security, and management of the scheme, and where the applicant seeks relief outside the adjudicator's statutory powers, the application must be dismissed as misconceived. CSOS, being a statutory body, cannot order remedies not expressly or properly authorised by the Act.

The adjudicator referred to the respondent's replacement of the prior security company and the absence of further complaints after 1 May 2023, but this was not the decisive basis of the dismissal. The order also recorded the right of appeal to the High Court under section 57 of the CSOS Act on a question of law only.

The decision illustrates the limited remedial jurisdiction of CSOS adjudicators. It confirms that an adjudicator cannot grant relief merely because it appears practically desirable; the relief must fit within the specific categories and powers in section 39 of the CSOS Act. It also underscores judicial deference to decisions of bodies corporate concerning management of common property where those decisions are taken within the statutory framework and in the interests of the scheme as a whole.