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The judgment in Kingshaven Homeowners Association v Botha And Others (6220/2019) (2020) ZAWCHC 92 raised a few interesting points which require a brief analysis for the benefit of Body Corporates and owners in community living schemes.

In this case the Homeowners Association (HOA) had referred a dispute to the CSOS against the Respondent who usually parked in visitor parking bays against the conduct rules.

The CSOS ruled that it had no jurisdiction to rule on parking bays as per the CSOS Act, and in passing also remarked that the HOA does not have jurisdiction over the visitor’s parking bays either.

Contractual Relationship between the HOA and Owners

On appeal to the High Court, Botha argued that the HOA had not enforced these rules and therefore forfeited the right to do so. The Court ruled that the Constitution effected a contractual relationship between the HOA and owners and could not be waived by non-enforcement. Botha was therefore interdicted from parking in the visitor’s parking bays. However in its judgment it had noted that the CSOS had no jurisdiction to decide on parking bays.

Not within their jurisdiction to rule on parking issues

In a related case, an owner of a sectional title unit had made an application for assistance, whereby some cars belonging to other owners in that scheme had been blocking access to his garage. The cars were being parked on the common property, despite. The Adjudicator of the Gauteng CSOS made a ruling that it was not within their jurisdiction to rule on parking issues based on the Kingshaven matter.

There are contradistinctions that need to be highlighted in the above ruling of the Gauteng CSOS Adjudicator.

Firstly, the Kingshaven case dealt with a Homeowners Association and not a sectional title scheme dispute.

Singh v Mount Edgecombe Country Club Estate Management Association

Secondly, the Court noted that the Adjudicator of the CSOS in that case relied on the decision in Singh v Mount Edgecombe Country Club Estate Management Association 2 (2017) ZAKZPHC 48, which was overturned few days after the CSOS decision.

In that case on appeal the Supreme Court of Appeal made a finding that the roads in a Homeowner’s Association scheme were not public roads but owned by the Homeowners Association.

Statutory provisions indeed give Body Corporates authority to deal with disputes regarding parking. Section 2 (5) of the Sectional Titles Schemes Management Act of 2011 gives the Body Corporate the obligation and authority to manage and enforce rules for the benefit of all owners in that scheme, especially pertaining to common areas.

On the Part of the CSOS, section 39 (2) (a) empowers the Adjudicator to make such order that seeks to alleviate dissatisfaction caused by conduct causing nuisance and requiring such conduct to be refrained from. In this provision therefore, a contextual analysis and inference does give the Adjudicator of the CSOS some authority to make a ruling with regards to disputes regarding parking bays.

Van Deventers and Van Deventers Inc. - Property Law

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