Vuyo Noble Dlulane v The Executive Committee of Chade Manor Homeowners Association

The applicant, Vuyo Noble Dlulane, is the registered owner of unit 7 in Chade Manor Homeowners Association, a residential community scheme in Gqeberha. The dispute was brought under section 38 of the Community Schemes Ombud Service Act 9 of 2011, with relief sought under section 39(1)(c) concerning financial issues. The applicant complained that fines had been added to his levy account: a daily fine of R100 for failing to paint fascia boards and further fines for carrying out building alterations without approved plans. He stated that he had not received the relevant email correspondence because his email had been down for more than six months, and that attempts to resolve the issue with the managing agents were unsuccessful. The respondent HOA contended that the applicant had breached scheme rules by failing to maintain his property and by constructing an entertainment/braai area and extending a boundary wall without prior written approval. It said notices had been sent in July, September and October 2022 and that fines were thereafter imposed in terms of the scheme rules. The respondent also sought, by way of a counter-request, an order for removal of the building alterations.

• Whether the fines imposed on the applicant for failure to paint fascia boards and for building without approved plans were incorrectly determined or unreasonable under section 39(1)(c) of the CSOS Act.
• Whether the respondent executive committee complied with procedural fairness, including the audi alteram partem rule, before imposing the fines.
• Whether the CSOS adjudicator had power under section 39(2)(d) of the CSOS Act to order removal or demolition of the applicant's building alterations.
• Whether ancillary relief could be granted under section 54(3) requiring the applicant to submit proper building plans to the executive committee.

The application was granted. All fines imposed on the applicant in respect of the fascia boards and building construction without a building plan were ordered to be reversed from his account within 10 days of receipt of the order. The applicant was further ordered, under section 54(3) of the CSOS Act, to submit proper building plans to the executive committee for approval relating to all alterations on his premises by 28 March 2024. No order as to costs was made.

A homeowners association may impose fines in terms of its constitution and rules only if it does so in a manner that is reasonable and procedurally fair. Where fines are imposed without first affording the owner a fair opportunity to be heard, the audi alteram partem principle is violated and the fines are procedurally flawed, unreasonable and liable to be set aside under section 39(1)(c) of the CSOS Act. In addition, a CSOS adjudicator's powers are confined to the remedies authorised by the Act; section 39(2)(d) does not extend to demolition orders for building alterations, though ancillary compliance directions may be made under section 54(3).

The adjudicator observed that any building deviations or change in usage should be addressed with the relevant building department of the local council. The adjudicator also commented that the respondent's counterclaim for removal of the alterations was not prudent because section 39(2)(d) concerns removal of 'articles' rather than building structures. Further observations were made about the general rule that parties ordinarily bear their own costs in section 54 adjudications unless the circumstances justify otherwise.

The matter is significant in South African community schemes jurisprudence because it affirms that homeowners associations, although contractually empowered to regulate owners through constitutions and conduct rules, must still exercise their disciplinary and fining powers in a procedurally fair manner. It underscores that CSOS adjudicators will scrutinise not only the existence of rule breaches but also whether fines were imposed in compliance with natural justice. The order also clarifies the limits of CSOS remedial powers: adjudicators may adjust or set aside unreasonable financial contributions and grant ancillary relief, but demolition-type relief for building structures may fall outside section 39(2)(d) and belong in another forum or before the local authority.