ADJUDICATION ORDER IN TERMS OF SECTION 54

OF THE COMMUNITY SCHEMES OMBUD SERVICE ACT NO. 9 OF 2011

Ref: CSOS 4579/KZN/22

IN THE MATTER BETWEEN

ANTHONY PANDARAM Applicant

and

TRUSTEES OF SS BIRCHES BODY CORPORATE Respondent

ADJUDICATION ORDER

EXECUTIVE SUMMARY
• Relief applied for in terms of the CSOS Act:

Section 39(7)(a): In respect of general and other issues-

An order declaring that the Applicant has been wrongfully denied
access to information or documents, and requiring the
association to make such information or documents available
within a specified time.

• Date adjudication was conducted:

6 January 2023
 CSOS 4579/KZN/22

• Name of the Adjudicator:

William A J Nicholson

• Order:
o In terms of Section 54 (1)(a) read with Sections 39(7)(b) of the CSOS Act, the
respondent must, within 30 days of the granting of this order, provide applicant,
at his own expense, access to the levy arrears report of the Body Corporate
for the months of February 2022, March 2022, April 2022, May 2022, June
2022, July 2022 and August 2022.

INTRODUCTION

1. The Applicant is Anthony Pandaram an adult male in his capacity as owner of Unit 401
SS Birches, 100 Entabeni Road, Pinetown, KwaZulu-Natal.

2. The Respondent is the Trustees of SS Birches Body Corporate, 100 Entabeni Road,
Pinetown, KwaZulu-Natal.

3. The community scheme is the SS Birches Body Corporate, a body corporate

contemplated in the Sectional Titles Schemes Management Act 8 of 2011 (“STSMA”).
The scheme is residential.

4. This is an application for a dispute resolution in terms of section 38 of the Community

Schemes Ombud Service Act 9 of 2011 (“the CSOS Act”’). The application was made
in the prescribed form and lodged with the Community Schemes Ombud Service
(“CSOS”) on or about 7 September 2022.

5. The Applicant is seeking relief in terms of:

s39(7)(a): In respect of general and other issues-
An order declaring that the Applicant has been wrongfully denied access to
information or documents, and requiring the association to make such
information or documents available within a specified time.

Page 2 of 11
 CSOS 4579/KZN/22

PRELIMINARY ISSUES

6. No preliminary issues were raised.

RELEVANT STATUTORY PROVISIONS

7. Section 1 of the CSOS Act defines-

• "community scheme" as “any scheme or arrangement in terms of which there is shared use
of and responsibility for parts of land and buildings, including but not limited to a sectional
titles development scheme, a share block company, a home or property owner's association,
however constituted, established to administer a property development, a housing scheme
for retired persons, and a housing cooperative and "scheme" has the same meaning”.

• "dispute" as “a dispute in regard to the administration of a community scheme between

persons who have a material interest in that scheme, of which one of the parties is the
association, occupier or owner, acting individually or jointly”.

8. Section 38 of the CSOS Act provides-

“Any person may make an application if such person is a party to or affected materially by a
dispute”.

9. Section 45(1) provides-

“The Ombud has a discretion to grant or deny permission to amend the application or to grant
permission subject to specified conditions at any time before the Ombud refers the application
to an adjudicator”.

10. Section 47 provides-

“On acceptance of an application and after receipt of any submissions from affected persons
or responses from the applicant, if the Ombud considers that there is a reasonable prospect
of a negotiated settlement of the disputes set out in the application, the Ombud must refer the
matter to conciliation”.

11. Section 48 (1) provides-

“If the conciliation contemplated in section 47 fails, the Ombud must refer the application
together with any submissions and responses thereto to an adjudicator”.

12. In terms of Section 50-

Page 3 of 11
 CSOS 4579/KZN/22

“The adjudicator must investigate an application to decide whether it would be appropriate to

make an order.”

13. Section 51 provides for the investigative powers of the Adjudicator:

“(1) When considering the application, the adjudicator may-
(a) require the applicant, managing agent or relevant person-
(i) to give to the adjudicator further information or documentation;
(ii) to give information in the form of an affidavit or statement; or
(iii) subject to reasonable notice being given of the time and place, to come to the
office of the adjudicator for an interview;
(b) invite persons, whom the adjudicator considers able to assist in the resolution of issues
raised in the application, to make written submissions to the adjudicator within a specified
time; and
(c) enter and inspect-
(i) an association asset, record or other document;
(ii) any private area; and
(iii) any common area, including a common area subject to an exclusive use
arrangement”.

14. The matter was not sent conciliation and referred directly to adjudication on 11 October
2022.

15. This matter is adjudicated in terms of the CSOS Act and Practice Directive on Dispute
Resolution, 2019 as amended and more specifically the amended Practice Directive
dated 23 June 2020 which provides under paragraph 8.2: - “Adjudications will be
conducted on the papers filed by the parties and any further written submissions,
documents and information as requested by the appointed Adjudicator”. The parties
were requested to make written submissions.

16. The matter was referred to:

16.1 CSOS on the 7 September 2022;

16.2 conciliation on 11 October 2022;

16.3 adjudication on 6 January 2023; and

Page 4 of 11
 CSOS 4579/KZN/22

16.4 an order is now determined.

SUMMARY OF RELEVANT EVIDENCE

Applicant’s Submissions

17. Applicant alleges that a large number of the members of the Body Corporate are in
arrears with their levy contributions. Accordingly, he seeks an order compelling
Respondent to give him access to the financial books of the Body Corporate, with a
view to understand, both the extent of the default, and establish the steps being taken
by both the Trustees and the Managing Agents, to mitigate the defaults.

18. Applicant further alleges that he had previously brought a similar application to CSOS
which was dismissed on a technicality. Notwithstanding, the dismissal of the
application on a legal technicality, Respondent has still not given applicant access the
financial books.

Relief sought by the Applicant

19. Applicant seeks an order that respondent gives him access to the levy arrears report
of the Body Corporate for the months of February 2022, March 2022, April 2022, May
2022, June 2022, July 2022 and August 2022.

Respondent’s Submissions

20. The Managing Agent responded on behalf of Respondent and asserts that in light of
the various legislation such as: the Sectional Titles Act of 1986, the Sectional Titles
Schemes Management Act of 2011, the Promotion of Access to Information Act of
2000, the Promotion of Administrative Justice Act of 2000 and the Protection of
Personal Information Act of 2013, the members have a right to privacy; accordingly,
applicant is not entitled to the information.

21. It is noteworthy that Respondent quotes the aforementioned legislation without quoting
any details or sections of the legislation that they would be in contravention of.

Page 5 of 11
 CSOS 4579/KZN/22

Relief sought by the Applicant

22. Respondent seeks an order that the application be dismissed.

EVALUATION & FINDING

23. In Body Corporate of Via Quinta v Van der Westhuizen N.O. and Another
(A196/2017) [2017] ZAFSHC 215 (16 November 2017) it was held:

[15] Sections 38 to 57 of the CSOSA and Regulations 19, 20 and 21 of the CSOSA
Regulations created the said dispute resolution mechanism. They make specific
provision for applications for the resolution of disputes to be made to the Ombud who
then refers them either to conciliation or, if that fails, to an adjudicator. In terms of the
CSOSA the Body Corporate has a discretion to either enforce payment of levies or
contributions through the Ombud, or in terms of its common law right in any court of
law against a defaulting owner for the recovery of arrear levies. Any action already
instituted before the new mechanism was introduced can still be continued against
the defaulting owner in the court concerned.

[16]…..

[17] If the claim for arrears levies or contributions is not disputed, for example if an owner
simply ignores a demand for payment or simply refuses to pay, without disputing the
amount of the claim or the proper determination of the levy, the Body Corporate can
institute legal action in court to recover the arrear levies from the owner.

24. In the circumstances in terms of Prescribed Management Rule 25 and Section 3(1)(c)
of STSMA, an owner/member of a Body Corporate is liable to contribute, in proportion
towards the levies, as approved by the Trustees of the Body Corporate, as well as
any additional contributions as approved by the Trustees.

25. It therefore follows that should members fail to make the levy contribution, the Body
Corporate acting through the Trustees may take the necessary action to recover the
levies.

26. Section 8 of STSMA reads:

“(1) Each trustee of a body corporate must stand in fiduciary relationship to the body

Page 6 of 11
 CSOS 4579/KZN/22

Corporate.
(2) Without derogating from the generality of the expression “fiduciary relationship”, the
provision of sub-section (1) implies that a trustee that-
(a) must in relation to the body corporate act honestly and in good faith, and in
particular –
(i) exercise his or her powers in terms of the Act in the interest and for
the benefit of the body corporate; and
(ii) not act without exceeding those powers; and
(b) …”

27. In the premise, trustees must act in the best interest of the Body Corporate.

28. Prescribed Management Rule 26 reads:

“(1) A body corporate must –
(a) keep proper records of account that –
(i) record all its income, expenditure, assets and liabilities;
(ii) disclose all amounts recovered from the members by the body
corporate or any managing agent or other service provider acting on
its behalf;
(iii) include individual accounts for each member; and
(iv) contain all other information to allow the members to assess the body
corporate’s financial situation and their financial situation in respect of
the body corporate.
(2) On the application of any member, registered bond holder or their managing agent,
the body corporate must make all or any of its books of account and records available
for inspection and copying.” [Own emphasis]

29. It is instructive to mention that I have perused legislation quoted by Respondent and
am unable to find any reason therein to proscribe the applicant from accessing it.

30. Considering the aforementioned legislation and Management Rules, it is apparent that
applicant is entitled to the relief he seeks. However, once the applicant gains access
to the information he must use the information bona fide and in line with the privacy
legislation.

31. In the premises, the application must succeed.

Page 7 of 11
 CSOS 4579/KZN/22

COSTS

32. No order as to costs.

ADJUDICATION ORDER

33. In the premises, in terms of Section 54 (1)(a) read with Sections 39(7)(a) of the CSOS
Act, the respondent must, within 30 days of the granting of this order, provide
applicant, at his own expense, access to the levy arrears report of the Body Corporate
for the months of February 2022, March 2022, April 2022, May 2022, June 2022, July
2022 and August 2022.

RIGHT OF APPEAL

34. Section 57 of the CSOS Act, provides for the right of appeal-
(1)An applicant, the association or any affected person who is dissatisfied by an adjudicator's
order, may appeal to the High Court, but only on a question of law.
(2) An appeal against an order must be lodged within 30 days after the date of delivery of the
order of the adjudicator.
(3) A person who appeals against an order, may also apply to the High Court to stay the
operation of the order appealed against to secure the effectiveness of the appeal.

DATED AT DURBAN on this the 6th day of JANUARY 2022.

Page 8 of 11