Zandile Ngwevu v Lindiwe Tlou

The applicant, Zandile Ngwevu, is the registered owner of unit 6 at Biscaywe Bay in Parklands, Western Cape. She alleged that water leaked from the respondent Lindiwe Tlou’s upstairs unit 15 into her downstairs unit, causing mould on the ceiling, an unpleasant odour, wall damage, chipped paint, and water seepage through a light fitting, which she said posed a safety risk and caused respiratory problems for her family. She said she notified the managing agent, who allegedly stated it could not intervene because the dispute was between owners, and that she also contacted the respondent by email, WhatsApp, and telephone. The respondent denied that a leak from her unit had been established. She said that after the applicant complained, a plumber inspected and found nothing indicating that her bathroom was leaking, and that further investigation required access to and cooperation from the applicant. The respondent also suggested possible alternative causes, including corridor renovations, waterproofing defects, rain, gutters, slab or plumbing problems, and issues potentially involving common property or body corporate responsibility. The applicant sought relief under section 39(6)(b)(i) of the Community Schemes Ombud Service Act 9 of 2011 requiring the respondent to fix the leak in her unit and repair the resulting damage in the applicant’s unit.

• Whether the applicant proved on a balance of probabilities that the water leak originated from the respondent’s unit
• Whether an adjudicator under section 39 of the Community Schemes Ombud Service Act 9 of 2011 has jurisdiction to order compensation or repairs for damage founded on a delictual claim between owners
• Whether the relief sought fell within section 39(6)(b)(i) of the CSOS Act or outside the statutory powers of the adjudicator
• Whether the material disputes of fact were capable of resolution on the papers without viva voce evidence

The application was refused. The adjudicator ordered that: (a) the relief sought by the applicant is refused; (b) the relief sought against the respondent insofar as it relates to prayer (a) falls outside the ambit of section 39 of the CSOS Act; and (c) there is no order as to costs.

A party seeking relief under section 39 of the CSOS Act must prove the factual basis for the order sought on a balance of probabilities. Where the applicant fails to prove that the complained-of leak originated from the respondent’s unit, no repair order can be granted. Further, relief that is substantively delictual in nature, requiring adjudication of fault, wrongfulness, causation, and damages, falls outside the jurisdiction of a CSOS adjudicator under section 39 and must be pursued in a court of law.

The adjudicator recorded the respondent’s contentions that the damage might have stemmed from broader structural or common-property issues such as waterproofing, gutters, drainage, slab leaks, renovations, or rain, and that a fuller investigation might identify the root cause. These observations informed the background but were not finally determined. The adjudicator also remarked that the matter would be more properly ventilated in a court of law because of the need for viva voce and expert evidence.

The decision illustrates the limits of the CSOS adjudication process in South African community schemes law. It confirms that CSOS adjudicators cannot determine delictual claims for damages between owners merely by framing them as repair disputes under section 39. It also underscores that applicants must place sufficient evidence before the adjudicator to prove the factual source of alleged leaks or damage. The case is significant as a practical example of the distinction between disputes suitable for CSOS resolution and those that must be pursued in court, especially where fault, causation, and expert evidence are central.