Trustee refusal to allow homeowner to install gate declared void by CSOS adjudicator

Two resolutions by the trustees of a Durban sectional title scheme declining an application by a homeowner to install a gate in her exclusive use area have been declared void by the Community Schemes Ombud Service (CSOS) Ombud.

Homeowner Cherven Singh applied in terms of the CSOS Act for an order declaring the resolution purportedly passed at a meeting of the executive of The Ridge Body Corporation or at a general meeting of the homeowners’ association void or invalid.

Read:
Ekurhuleni body corporates pay the price for electricity tariff mess
Judge goes off on body corporate lawyers for bringing R18k claim before high court

Singh further applied for an order declaring that a particular resolution passed at a meeting is void on the grounds that it unreasonably interferes with the rights of an individual owner or occupier or the rights of a group of owners or occupiers.

Adjudicator Sihlangu Antonnette late last month granted Singh the relief she sought in terms of the CSOS Act and declared void the trustee resolution taken in April 2025 or on 8 August 2025 on Singh’s application for the installation of a gate in the exclusive use area of her garden.

The adjudication order revealed that trustee Dhivendra Singh “and his visitors” trespassed 16 times in the garden area of Cherven Singh between September 2024 and March 2025.

This resulted in Cherven Singh being granted an interim protection order by the Durban Magistrates Court on 12 November 2024 against Dhivendra Singh to restrain him “and his visitors” from trespassing in her garden area effective from 12 November 2024 until 23 April 2025.

Gate previously installed, removed

The trustees of The Ridge Body Corporate, a residential sectional title scheme situated in Mazisis Kunene Road in Westridge in Durban, said there is “history” to this dispute and Cherven Singh had previously illegally installed the gate and the high court ordered its removal.

However, the trustees said they cannot comment on disputes of a legal nature between owners, including any allegations regarding trespass or protection orders, because these matters fall outside its mandate and authority.

The trustees said they also cannot verify or confirm the legitimacy or lawfulness of the presence of any individual within Cherven Singh’s exclusive use area.

They added that at no point did she bring any evidence to the trustees demonstrating that her safety or life was under immediate threat, or that the situation posed a serious security risk requiring urgent structural interventions beyond what is reasonable in a communal living environment.

Cherven Singh applied on 9 October 2024 to the trustees for written consent to install a sliding gate in her garden area but claimed the trustees in April 2025 unreasonably refused to provide written consent to allow her to install a sliding gate as requested.

Legal opinion

She approached an advocate for a legal opinion, who advised that he needed to approach the CSOS to have the trustees’ resolution declared void or invalid under the CSOS Act.

Cherven Singh further claimed the garden area is her exclusive use area in the scheme and her exclusive use right to the garden area is conferred in a Ridge Management Rule registered in the Deeds Office on 25 September 1986.

She said the Durban High Court on 4 September 2024 declared that she is entitled to the exclusive use and enjoyment of the garden area.

The trustees informed Cherven Singh through her attorney on 11 April 2025, six months after she submitted her application, that they refuse to provide her with written approval for the proposed sliding gate in her garden area.

They also noted Cherven Singh’s submission that Dhivendra Singh had a personal interest in the matter, which should have disqualified him from participating in the consideration of the gate application.

The trustees did not oppose the exclusion of his vote from the decision, stressing this does not alter the outcome because the resolution refusing consent was unanimously supported by all trustees.

Gate against ‘architectural character’

They claimed the proposed silver sliding gate would introduce a feature inconsistent with the appearance and architectural character of the scheme and there is currently no similar gate within the interior areas of the scheme.

The trustees maintained that the decision not to approve the gate was exercised lawfully, reasonably, and in compliance with their fiduciary duties to the scheme as a whole.

They applied for Cherven Singh’s application to be dismissed, stating that there was no procedural irregularity affecting the outcome of the resolution and the refusal of the application was reasonable, justified, and proportionate to their obligation to manage and protect the common property and the scheme’s overall appearance.

Procedure not followed

Adjudicator Antonnette said Cherven Singh attached the necessary resolutions in support of her application and they were signed by the trustees but not dated.

Antonnette said the trustees did not make any submissions about a meeting held where the resolution was tabled and where the members of the scheme were allowed to cast their votes with regards to the resolution.

She said the trustees instead, of their own accord, took the decision to reject Cherven Singh’s application without following the procedure as set out by the Sectional Title Schemes Management Act (STSMA) and its regulations.

Listen/read: Sectional title schemes: What buyers don’t see coming

“Consequently, it is the adjudicator’s finding that the April 2025 or the 8 August 2025 trustee’s resolution does not meet the requirement as set out by the STSMA and its Regulations,” she said.