CSOS5016/WC/23

ADJUDICATION ORDER IN TERMS OF SECTION 53

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

Ref: CSOS5016/WC/23

IN THE MATTER BETWEEN

PIERRE MOSTERT APPLICANT

and

JAYSON EATON RESPONDENT

ADJUDICATION ORDER

EXECUTIVE SUMMARY

• Relief applied for in terms of the CSOS Act:

Section 39(2) In respect of behavioural issues- (a) “an order that particular behaviour or

default constitutes a nuisance and requiring the relevant person to act, or refrain from acting,

in a specified way.”

Section 39(6) In respect of works pertaining to private areas and common areas-

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(b) “an order requiring the relevant person- (i) to carry out specified repairs, or have specified

repairs made.

• Date Adjudication conducted:

29 SEPTEMBER 2023.

• Name of the Adjudicator:

N. FOCA.

• Order:
(a) The relief sought by the Applicant in terms of section 39(2)(a) and 39(6) (b) of the
CSOS Act, is dismissed in terms of Section 53(1) (b) of the CSOS Act.
(b) No order is made as to costs.

INTRODUCTION

1. The Applicant is PIERRE MOSTERT, the registered owner of unit 35 Olive Grove, Klip
Road, Grassy Park, Cape Town, Western Cape Province.

2. The Respondent is JAYSON EATON, the registered owner of unit 60 Olive Grove,
Klip Road, Grassy Park, Cape Town, Western Cape Province.

3. This is an application for 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) by way of email.

4. The application seeking relief in terms of section 39(2) of the CSOS Act, is in respect
of behavioural issues and section 39(6) of the CSOS Act in respect of works
pertaining to private areas and common areas.

5. A letter requesting final submissions was sent to the parties confirming that due to the
current situation regarding the Covid-19 pandemic, the CSOS is taking the appropriate
precautions against the further spread of COVID-19 (Coronavirus) and is

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adjudicating disputes on documents submitted, without the need to meet parties face
to face.

6. 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”. Parties were requested to
make written submissions. The adjudication was conducted on the 29th of September
2023 and an order is now determined.

PRELIMINARY ISSUES

7. No preliminary issues were raised.

RELEVANT STATUTORY PROVISIONS

8. 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.”

9. 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.”

10. 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.”
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11. 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.”

12. 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”.

13. In terms of Section 50-

“The adjudicator must investigate an application to decide whether it would be appropriate to
make an order.”

14. 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.”

15. Accordingly, a direct referral was done in terms of Section 48(1) of the CSOS Act. The
Ombud referred the application together with any submissions and responses thereto
to an adjudicator on the 22nd of September 2023.

SUMMARY OF RELEVANT EVIDENCE

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Applicant’s Submissions

16. The Applicant avers that the Respondent is engaging in disruptive conduct at night by
knocking and drilling till the early hours of the morning.

17. The Applicant further submitted that there is water ingress in his unit which emanates
from the Respondent’s unit, and that as a result both his kitchen and bathroom are
affected by the water leakage, which the Respondent refuses to fix.

18. According to the Applicant, the Respondent has ignored his attempt to engage him for
the purposes of resolving the matter, as he did not respond to his emails.

Relief sought by the Applicant:

19. Wherefore the Applicant seeks relief in the following terms.

(a) An order directing the Respondent to repair the leak and refrain from making noise.

Respondent’s Submissions

20. The Respondent failed to file written submissions despite the request for the same
issue by CSOS Compliance officer on the 13th of September 2023.

Relief sought by the Respondent.

21. None submitted.

EVALUATION & FINDING

22. In evaluating the evidence and information submitted, the probabilities of the case
together with the reliability and credibility of the witnesses must be considered.

23. The general rule is that only evidence, which is relevant, should be considered.
Relevance is determined with reference to the issues in dispute. The degree or extent
of proof required is a balance of probabilities. This means that once all the evidence
has been tendered, it must be weighed up and determined whether the Applicant’s
version is probable. It involves findings of facts based on an assessment of credibility
and probabilities.
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24. Acting in accordance with section 51(1)(a)(i) of the CSOS Act which provides, “An
adjudicator may require the applicant, managing agent or relevant person to give to the
adjudicator further information or documentation.”, on the 22nd of September 2023 a
request for additional information was sent to the Applicant, for the scheme’s Conduct
Rules and expert’s report confirming that the source of water ingress is the
Respondent’s unit, to which no response was received.

25. Section 38 of the CSOS Act, under the heading ‘Applications’ states as follows, (2) “An
application must be- (a) Made in the prescribed manner and as may be required by practice
directives; (b) Lodged with an ombud; and (c) ….”

26. The above provision should be read together with the CSOS Practice Directive on
Dispute Resolution which states, “5.3. The Applicant bears the onus of ensuring that
all relevant information has been submitted to ‘make their case,’ in other words, to ensure
their application form is correctly completed and meets legislative requirements.” (My own
emphasis)

27. The Applicant’s failure to submit the required information has rendered the adjudicator
unable to evaluate and make a finding relating to the relief sought.

28. Accordingly, the Applicant’s prayers for relief against the Respondent is dismissed in
terms of section 53 (1) (b) of the CSOS Act.

COSTS

29. I make no order as to costs.

ADJUDICATION ORDER

30. In the circumstances, the following order is made:

(a) The relief sought by the Applicant in terms of section 39(2) (a) and 39(6)(b) of the
CSOS Act, is dismissed in terms of Section 53(1) (b) of the CSOS Act.
(b) No order is made as to costs.

RIGHT OF APPEAL
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31. 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 ON THIS 10TH DAY OF OCTOBER 2023.

_______________
N. FOCA
ADJUDICATOR

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