When Harassment isn’t a ‘Nuisance’: The High Court Case of M.M. v Kiewiet
By Professor Graham Paddock
In the recent High Court case of M.M. v Kiewiet (A193/2023) [2024] ZAGPPHC 411 (3 May 2024), the court dealt with the important issue of jurisdiction in disputes involving harassment between residents of a community scheme. The case highlights the appropriate application of the Protection from Harassment Act, but it also deserves further comment, particularly concerning the definition of a “dispute” under the Community Scheme Ombud Service Act (CSOS Act) and the concept of “nuisance” within a property law context.
Facts of the Case
The appellant, M.M., sought relief under the Protection from Harassment Act after obtaining an interim protection order against the respondent in February 2023. The interim order restrained the respondent from verbally and physically abusing, threatening, or harassing the appellant.
When the matter came before the Magistrates Court for a final protection order, the respondent argued that the dispute should have been handled under the CSOS Act, which governs disputes within community schemes. The Magistrate agreed, dismissing the application for a final protection order on the grounds that the issue was “premature” and should have been referred to the Community Schemes Ombud Service (CSOS).
The appellant appealed this decision, and the High Court ultimately upheld the appeal, finding that the Magistrates’ Court was indeed the appropriate forum for the case. The High Court ordered the matter to be reconsidered by the Magistrates’ Court.
High Court’s Ruling: The Correct Conclusion
The High Court’s ruling correctly reinstated the Magistrates Court’s jurisdiction to hear the harassment case under the Protection from Harassment Act. The court recognized that the appellant’s allegations of harassment were serious and merited consideration under the specific legal framework designed to protect individuals from such conduct.
The court also pointed out that the CSOS Act does not explicitly deal with harassment and that: “The purpose of CSOS Act read with the definition of community scheme, clearly indicates that the disputes to be dealt with under this Act, are those which concern the well-being of a community scheme as opposed to individuals’ dispute.”
Further Comments
The High Court’s conclusion in this case is worthy of more detailed examination.
- Definition of “Dispute” Under the CSOS Act
- The CSOS Act defines a “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.’ (my underlining for emphasis). This definition makes it clear that the CSOS is intended to handle disputes concerning the governance and management of the scheme itself, such as issues related to levies, insurance, administration, maintenance, and common property, mostly within the scope of the prayers for relief in section 39 of the Act, but not including issues that don’t relate to the financial, administrative or physical scheme administration.
- The dispute in M.M v Kiewiet concerned allegations of harassment, a personal issue between two individuals and not connected to the use of the property in the scheme. As such, it should not have been considered a “dispute” under the CSOS Act.
- The Concept of “Nuisance” in Property Law
- The Magistrates Court originally dismissed the case on the grounds that the harassment alleged by the appellant could be considered a “nuisance” under Section 39(2) of the CSOS Act. However, this interpretation confuses the property law concept of nuisance with personal harassment.
- In the context of property law, “nuisance” refers to ongoing behaviour linked to the use of the property that materially interferes with an occupier’s use and enjoyment of property and is beyond what a reasonable person is obliged to tolerate in the particular circumstances. Examples include noise complaints, improper use of common areas, or other behaviours that disrupt the individual or collective living environment. The harassment complained of in this case does not fit within the concept of “nuisance” in this context.
- In par. 14 of 18.7.4 of Sectional Titles, Prof. CG Van der Merwe confirms that several CSOS adjudications have found claims of a personal nature unsuitable for CSOS adjudication. For example, the allegation of an insult given at an annual general meeting and considered in the case of R Oosthuizen v TA Ricardson (CSOS 7500/KZN/21). The same point was made by Judge Binns-Ward in the case of Trustees, Avenues Body Corporate v Shmaryahu 2018 4 SA 566 (WCC) who commented that it is clear from the type of issues dealt with in the prayers set out in Section 39 of the Act that “they pertain primarily to matters germane to the community schemes, and only incidentally to related personal or individual interests or rights.”
Conclusion
When preparing to take a matter to CSOS applicants need to ensure that the dispute will be recognised as such for the purposes of CSOSA and that the motivation for an order under section 39(2) of the CSOS Act is a ‘property law nuisance’ rather than any other form of annoyance, irritation, inconvenience, bother, disturbance, disruption, troubling event, aggravation, hindrance or pestilence.
Professor GJ Paddock
Article reference: Paddocks Press: Volume 19, Issue 9.
This article is published under the Creative Commons Attribution license.
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