By Prof. Graham Paddock
On 22 November 2022 in the case of Candice Naidoo v M A Chicktay, the CSOS and the Embassy Gardens Body Corporate, (39321/2021) [2022] ZAGPJHC (available at saflii.org), a judge in the South Gauteng High Court, Johannesburg, found that a CSOS adjudicator had wrongly dismissed Ms. Naidoo’s application to keep her pergola. The body corporate had argued she erected the pergola in breach of the body corporate’s rules and without its permission.
The applicant asked the High Court to review the CSOS order because the adjudicator did not take into account the evidence she placed before him. On review of the CSOS order, which he confirmed to be “administrative action” for the purposes of the Promotion of Administrative Justice Act of 2000, the judge held that her complaint was: “but a symptom of a much more fundamental problem with the Adjudicator’s approach…”.
He noted that section 50 of the CSOS Act of 2011 provides that an adjudicator “must investigate an application to decide whether it would be appropriate to make an order” and the Adjudicator failed to do so. He listed two indications of this failure, i.e. the adjudicator:
- failed to establish whether the disputed pergola was within a “common area”, as defined in the CSOS Act, and
- did not consider and resolve the central question before him: whether or not the pergola actually breached Embassy Gardens’ Conduct Rules.
Because the applicant had alleged that the pergola was within her “private garden”, the judge held that the adjudicator should have investigated whether or not this garden was an exclusive use area. He also found that the body corporate’s rule prohibiting pergolas without prior permission did apply to private gardens, but the adjudicator could not give an order in terms of section 39(6)(d) of the CSOS Act because this provision only applies only to “common areas” as defined in that Act, not to an exclusive use areas as defined in the Sectional Titles Schemes Management Act of 2011.
The Judge held that the adjudicator should have investigated the issues and explored the underlying issues. Accordingly, he reviewed the adjudicator’s decision and set it aside, remitting the application back to the CSOS to be dealt with afresh in terms of the judgment. He ordered the body corporate to pay the legal costs.
This judgment is important because it:
- alerts CSOS adjudicators that the High court will review and overturn their orders if they fail to properly investigate an application, and
- requires them to make it clear from their orders that they understood and dealt with all the issues, particularly when they are complex.
- For parties who approach CSOS, it is a reminder that they can require an adjudicator to investigate the dispute properly—and hold them to account in the High Court on review if they fail to do so.
The CSOS should identify complex disputes on intake and make sure that adjudicators are given sufficient time and administrative support to exercise their investigative powers, understand the difficult issues and produce an order including clear reasons.
Depending on the findings of fact, a new adjudicator might order Ms Naidoo to remove her pergola in accordance with section 39(2)(d) of the CSOS Act, which allows an adjudicator to give “an order for the removal of all articles placed on or attached illegally to parts of a common area or a private area.”
Graham Paddock is a specialist community schemes attorney, notary and conveyancer. He has been advising clients and teaching students for over 40 years, and was an adjunct professor at UCT for 10 years.
Article reference: Paddocks Press: Volume 17, Issue 12.
This article is published under the Creative Commons Attribution license.
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