Ten Ways to Increase the Chances of a Successful CSOS Repair or Maintenance Order Application Under Section 39(6)(a)

By Prof. Graham Paddock

Based on Professor Paddock’s analysis of 27 CSOS adjudicators’ orders between 2017 and 2023, this article sets out his suggestions to CSOS applicants: What they should – and shouldn’t – do to successfully obtain Section 39(6)(a) orders for the association (body corporate, homeowners association, share block company or life rights management association) to perform maintenance and repairs either to a private or a common area.

When applying for an order obliging an association to do maintenance or repairs to  either private or common areas in terms of under Section 39(6)(a) of the Community Schemes Ombud Service Act, No. 9 of 2011 (CSOSA), applicants often face hurdles. My recent analysis of 27 adjudicators’ orders from CSOS given in response to this prayer highlights key strategies and pitfalls that affect the likelihood of success. Here’s how applicants can optimise their approach to persuade an adjudicator to grant such a maintenance order.

What Applicants Should Do

1. Demonstrate clearly the Association’s Maintenance Obligation

To increase the chances of success, applicants should substantiate their claims by giving the adjudicator evidence that the association has a legal liability to pay for and/or carry out the specified maintenance or repair either in terms of law governing scheme management [in sectional title schemes, the Sectional Titles Schemes Management Act, No. 8 of 2011 (STSMA)] or in terms of the law of delict and that they have given the association repeated written demands for the work. 

In order to demonstrate liability, it is usually necessary to prove the nature of the property in question (for example, part of a section, an exclusive use area or unregulated common property) by reference to survey and title documents. This is particularly necessary for common areas such as roofs or external walls. For instance, awards like Moosa v Trustees of Tophill Body Corporate – 316/KZN/22 upheld maintenance orders after the applicant clearly established the roof’s legal classification as common property, which made it clear that the body corporate was responsible for its upkeep.

2. Provide Clear and Compelling Evidence of Damage or Neglect

Applications that present strong visual or documented evidence of damage, such as photographs, inspection reports, or expert assessments, tend to be more successful. For example, in Teodosio v Arbordale Body Corporate –  6817/KZN/22, the applicant’s photographic evidence of water damage supported their claim, which led to a favourable outcome. Detailed evidence can emphasise the urgency and legitimacy of the request.

3. Highlight Previous Communication Attempts

Documentation of past efforts to resolve the issue directly with the association can strengthen an application. Applicants in successful cases often provide copies of letters or emails to demonstrate repeated, unaddressed complaints. This was evident in cases where applicants showed a pattern of the association ignoring or delaying responses, prompting CSOS intervention as a necessary next step.

4. Maintain Compliance with Financial and Procedural Aspects

Applications are viewed more favourably when applicants demonstrate they have fulfilled their financial obligations to the scheme. In Muller v Beraud Flats Body Corporate – 6447/KZN/22, the adjudicator dismissed claims linked to unpaid levies, highlighting that arrears or procedural non-compliance could weaken an applicant’s case.

5. Propose Realistic Timelines and Acknowledge Financial Constraints

Applicants who acknowledge the association’s potential financial constraints by proposing phased repairs or reasonable deadlines often see better outcomes. This pragmatic approach shows the applicant’s willingness to cooperate and may make adjudicators more receptive to their request.

What Applicants Should Avoid

1. Avoid Claims for Damages or Emotional Distress

CSOS does not have jurisdiction to award compensation for delictual damages or emotional distress. This limitation was underscored in the Moosa v Tophill Body Corporate order, where claims for indirect harm, such as discomfort or inconvenience, were dismissed. Applicants should focus strictly on repair and maintenance needs and avoid seeking financial redress for emotional suffering.

2. Refrain from Requests Beyond CSOS’s Scope

While applicants may feel that trustees’ actions warrant penalties or disciplinary action, CSOS lacks the authority to enforce punitive measures against trustees unless clear statutory breaches are proven. In Chetty v Willow Glen Body Corporate – 6975/GP/23, the applicant’s attempt to secure punitive orders failed, and also reinforced the basic principle that applicants should not seek outcomes outside the scope of CSOS’ jurisdiction.

3. Avoid Overstating the Body Corporate’s Financial Responsibility

The default position is that applicants are responsible to finance the repair and maintenance of their own private areas, so they should not ask a CSOS adjudicator to order that the association must finance or carry out repairs within private areas (for example, sections or exclusive use areas in a sectional title scheme) unless the damage stems from common areas or directly results from the association’s (body corporate’s) actions or neglect. Adjudication orders like that in Knusden v Daphdean Court Body Corporate – 7690/GP/23 demonstrate that requests for repairs in private areas without clear supporting evidence are often unsuccessful.

4. Do Not Submit Vague or Unsupported Claims

A well-supported claim with clear evidence is far more likely to succeed. Applicants should avoid vague assertions and ensure that claims, particularly structural concerns, are backed by expert reports. Adjudicators frequently dismiss unsupported claims, underscoring the importance of providing tangible evidence— on a balance of probabilities— of the issue’s impact on the applicant’s property’s integrity.

5. Avoid Seeking Waivers or Concessions of Statutory Financial Obligations

Applications to waive levy or interest payments or request other forms of financial leniency for personal hardship are outside CSOS’s mandate and generally unsuccessful. In Naidoo v Anza Court Body Corporate – 493/GP/23, CSOS reaffirmed that levies are statutory obligations, irrespective of an individual’s financial situation. Thus, applicants should avoid seeking waivers or reductions in these payments.

Conclusion

From this analysis of 27 adjudications, it’s clear that applicants can improve their chances of securing a Section 39(6)(a) maintenance or repair order by adopting a well-prepared, evidence-backed, and cooperative approach. By focusing on property-specific maintenance needs and avoiding claims outside of CSOS’s authority, applicants strengthen their case and reduce the risk of dismissal. These findings highlight best practices that can guide future applicants in achieving effective outcomes under CSOS Section 39(6)(a).

Article reference: Paddocks Press: Volume 19, Issue 12.

This article is published under the Creative Commons Attribution license.

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