Kildare Body Corporate v Gabriellah Pretty Ndaba

The applicant, Kildare Body Corporate, is the body corporate of a residential sectional title scheme situated at 81 Botanic Gardens, Durban, KwaZulu-Natal. The respondent, Gabriellah Pretty Ndaba, is the registered owner of Unit 14 in the scheme and therefore a member of the body corporate. The body corporate alleged that the respondent had failed to make regular levy payments over a period of time. As at the October 2023 statement, the outstanding amount was R5903.30, inclusive of interest calculated at 15.5% per annum. The applicant stated that requests for payment had been made, internal remedies had been exhausted, and the trustees had resolved to recover the arrears through the Community Schemes Ombud Service. The matter was lodged with CSOS on 5 October 2023, conciliation failed, and a certificate of non-resolution was issued on 16 December 2023. The respondent did not provide a substantive defence or dispute the applicant's evidence.

• Whether the CSOS had jurisdiction under sections 38 and 39(1)(e) of the Community Schemes Ombud Service Act 9 of 2011 to determine the dispute.
• Whether the body corporate had established, on a balance of probabilities, that the respondent owed arrear levy contributions.
• Whether the body corporate was entitled to recover interest on overdue levy amounts in terms of the management rules and applicable legislation.
• Whether any valid defence existed to justify non-payment of levies.
• Whether a costs order should be made.

The application was granted. The respondent was ordered to pay arrear levy contributions of R5903.30 in full on or before 30 April 2024. No order as to costs was made.

A body corporate is entitled, under the CSOS Act and the STSMA, to obtain an order for payment of arrear levies where it proves the indebtedness on a balance of probabilities. Levy contributions lawfully raised pursuant to the body corporate's powers are enforceable against the unit owner, and interest on overdue amounts may be charged where authorised by the applicable management rules and trustee resolution. In the absence of a valid defence, the owner remains liable for payment.

The adjudicator remarked that levies are the 'lifeblood' of shared living schemes and that non-payment can seriously destabilise a scheme and negatively affect the collective interests and investments of all owners. The adjudicator also noted generally that costs orders are more commonly made in dismissals under section 53 of the CSOS Act than in adjudication orders under section 54.

The case illustrates the enforcement role of the Community Schemes Ombud Service in sectional title levy disputes. It reinforces that bodies corporate may use the CSOS process to recover arrear levies and related interest, and that owners cannot avoid payment by simply failing to engage or by disputing the wisdom of levy decisions. The decision underscores the importance of levy collection to the financial sustainability of community schemes.