A criticism of the judgment in Kingshaven HOA v Botha

Illegal parking in community schemes is often a real problem, and scheme executives need to be able to effectively control parking in the scheme. In the case of Kingshaven Homeowners’ Association v Botha and Others (6220/2019) [2020] ZAWCHC 92,  which came to the high court on appeal from a Community Schemes Ombud Service (“CSOS”) adjudicator’s order, an owner in a homeowners association (“HOA”) regularly parked his vehicles outside the boundary of his property and used the visitor’s parking bays.

After dealing with the process for appeals from CSOS adjudicator orders and also with judicial review proceedings, Mr Justice Binns-Ward recorded his agreement with the CSOS adjudicator’s decision that she could not have ordered the owner to stop parking in breach of the scheme’s conduct rules because, in his view, there is no provision in section 39 of the CSOS Act that allows an adjudicator to make such an order.

I respectfully believe that both the adjudicator and the judge were wrong in coming to this conclusion. Section 39(2)(a) of the CSOS Act of 2011 provides that, in respect of behavioural issues, an adjudicator can give “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”. This gives an adjudicator authority to make an order prohibiting parking which is an ongoing and unreasonable use of the HOA’s property – including parking when this is a nuisance that interferes with the rights of others. In my view, the CSOS adjudicator could have made the same order that the high court has now made, prohibiting the irregular parking. The Kingshaven HOA should not have had to go through the expensive and time-consuming additional process of approaching the high court on appeal.

The judgment recorded the judge’s view that: “The omission of any provision in s 39 of the CSOS (Act)  for an order to compel a member of a community scheme to comply with the constitution or rules of the scheme appears to have been an obvious oversight by the legislature.”  In my view, section 39(2)(a) of the CSOS Act, quoted above, means that when a CSOS adjudicator comes to the conclusion that any action or any failure to perform an action in a community scheme constitutes a nuisance under South African law, she or he has jurisdiction to give a prohibitory interdict (prohibiting specified action to protect others against the continued invasion of their rights) or a mandatory interdict (compelling the performance of some act that promotes the rights of others).

The judgment in the Kingshaven case would also have been very much more useful if the judge had clearly stated that the CSOS adjudicator’s expressed view to the effect that the HOA, in any event, did not “have jurisdiction over the visitors’ parking bays” was wrong in law. It is important that scheme executives and residents understand that a community scheme such as this HOA does have jurisdiction to regulate vehicle traffic and parking on its property by way of conduct rules, and that it may be obliged to do so.

In the management of visitors’ parking, scheme executives must comply with their fiduciary duties under the CSOS Act and, more specifically in this set of circumstances, know the visitors’ parking requirements of the relevant town planning scheme as they apply to their scheme and, when necessary, impose fines and/or make application to the CSOS for an appropriate interdict. Regrettably, the CSOS has not yet published the text of the adjudicator’s order that the Kingshaven HOA appealed against. Hopefully, the CSOS will soon comply with its statutory obligation in this regard, so that those involved in community schemes administration can read this high court judgment in context.

The full text of the Kingshaven high court judgment is available to the general public at www.saflii.org and a searchable version is available for Club members here.

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 15, Issue 9.

This article is published under the Creative Commons Attribution license.

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