ADJUDICATION ORDER IN TERMS OF SECTION 53

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

Ref: CSOS4583/FS/22

IN THE MATTER BETWEEN

CHARLES A NESER APPLICANT
And
DEPARTMENT OF HUMAN SETTLEMENTS RESPONDENT

ADJUDICATION ORDER

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

Section 39- (1) In respect of financial issues.

(e) an order for the payment or re-payment of a contribution or any other amount.

• Date Adjudication conducted: 03 JANUARY 2023.

• Name of the Adjudicator: Thandeka Qwabe.

• Order: DISMISSED.
• No order as to costs.
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INTRODUCTION

1. The Applicant is Charles A Neser, managing agent as defined in section 1 of the CSOS Act
and whose principal place of business is Bloemfontein, Free State.

2. The Respondent is the Department of Human Settlements an owner of unit 3 at PresidentHof

Body Corporate, whose address is Lebogang Building, St Andrews Street, Bloemfontein,
Free State.

3. This is an application for dispute resolution in terms of section 38 of the Community Schemes
Ombud Service Act No. 9 of 2011 (the CSOS Act). The application was made in the
prescribed form and lodged with the Community Schemes Ombud Service (the CSOS).

4. The application seeking relief in terms of section 39 of the CSOS Act, is in respect of-
Section 39- (1) In respect of financial issues.

(e) an order for the payment or re-payment of a contribution or any other amount.

5. 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 on 12 October 2022. The adjudication was conducted on 03
January 2023 and an order is now determined.

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

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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-

“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.

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(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. A certificate of non-Resolution was issued in terms of Section 48(1) of the CSOS Act. In terms
of clause 21 of the Practice Directive on Dispute Resolution, 2019 as amended, the Ombud
referred the application for dispute resolution directly to adjudication as the Respondent did
not respond to the section 43 Notice which is in terms of the CSOS Act. The Ombud referred
the application together with any submissions and responses thereto to an Adjudicator on 10
October 2022.

SUMMARY OF RELEVANT EVIDENCE

15. Applicants Submissions

15.1 An application was submitted by the Managing Agent, Charles A Neser dated 12 August
2022 to recover the arrear levies owed by the Respondent.

15.2 The application was accompanied with several documents in support of the claim including
minutes of the trustees’ meetings dated 25 November 2021 but no resolution to lodge the
dispute with CSOS.

Relief Sought by Applicant

16. The Applicant wants the Respondent to pay the arrear levies for an amount of R3 890.41
(three thousand eight hundred and ninety rand and forty-one cent).

Respondent’s Submissions

17.1 The Respondent was served with a Notice 43 in terms of the CSOS Act on 27 September
2022 to provide the Respondent an opportunity to respond to the allegations.

17.2 The Respondent did not respond, and the matter was referred directly to Adjudication on
10 October 2022 due to no response by the Respondent.

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17.3 The parties were afforded an opportunity to make final written submissions on 12 October
2022. The Respondent did not make any submissions.

Relief sought by the Respondent.

18. None.

EVALUATION & FINDING

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

20. 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 weighted up and determined whether the applicant’s version is probable. It involves
findings of facts based on an assessment of credibility and probabilities.

21. Any person acting in a representative capacity must be duly authorised in writing to act in
that capacity. The application is not accompanied by a resolution authorising the Applicant
to bring this application on behalf of Presidenthof Body Corporate.

22. Regulation 10 of the STSMA under the Management Rules dealing with Validity of actions
provides:

“(1) No document signed on behalf of the body corporate is valid and binding unless it is
signed on the authority of a trustee resolution by — (a) two trustees or the managing agent,
in the case of a clearance certificate issued by the body corporate in terms of section
15B(3)(i)(aa) of the Sectional Titles Act; and (b) two trustees or one trustee and the managing
agent, in the case of any other document.”

23. Section 38(2)(a) of the CSOS Act states as follows:-

“An application must be made in the prescribed manner and as may be required by
practice directives”

24. The CSOS Practice Directive on Dispute Resolution of 2019 states as follows:-

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5.9.”Where the Applicant is a community scheme, a copy of a resolution by the Executive Committee
of the scheme must be attached to the application authorising the lodgement of the application.
5.10.The application form must be signed by the applicant, unless the application form is signed by
an applicant’s authorised representative , which mut be indicated in the form.
5.11.Where an applicant is represented, full particulars and contact details of the representative must
be disclosed in the application form, including the capacity in which the representative acts(i.e.,
trustee, managing agent, etc).”

25. In Durdoc Centre Body Corporate v Singh 2019 (6) SA 45 (KZP) the court held
“considering that Singh was only a manager of the company, although authorised by the company
to act on its behalf, the court held that the right to lodge a dispute was prescribed by legislation as a
right that accrued to owners of units who were materially affected by a community scheme related
matter.” The Applicant in the case in casu is not materially affected as he is the managing
agent as per the application submitted.

26. The Adjudicator as a creature of statute is bound by the CSOS Act and Practice Directives
on Dispute Resolution. In the absence of compliance with the CSOS Act and Practice
Directives on Dispute Resolution, this application does not meet the legislative
requirements and is defective and is therefore dismissed.

ADJUDICATION ORDER
27. In the circumstances, the following order is made:
27.1 This application is dismissed.

27.2 No order as to costs.

RIGHT OF APPEAL

28. 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 10 JANUARY 2023.

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T.P QWABE
ADJUDICATOR

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