Bergsig Body Corporate v Y & ON Nkomo

The applicant, Bergsig Body Corporate, a sectional title scheme registered as SS 27/1996 and situated in Amandasig, Pretoria, brought an application under section 38 read with section 39(1)(e) of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) against Y & ON Nkomo, the registered co-owners of Unit 4 in the scheme. The body corporate, represented by its managing agent under trustee resolution dated 2 June 2023, alleged that the respondents had failed to pay levy contributions due to the scheme. The arrears amounted to R3 458.29, inclusive of interest at 13.5% per annum. A contribution statement and supporting documentation were filed. The matter was referred to conciliation, which failed, and a certificate of non-resolution was issued on 22 September 2023. The respondents failed to respond to the application and submissions despite notice in terms of section 43 of the CSOS Act.

• Whether the CSOS had jurisdiction to determine a dispute concerning unpaid levy contributions in a sectional title scheme under section 39(1)(e) of the CSOS Act.
• Whether the applicant body corporate had established, on a balance of probabilities, that the respondents were liable for arrear levy contributions in the amount claimed.
• Whether the body corporate was entitled to recover interest on the arrear levies based on its rules and trustee resolution.
• Whether a costs order should be made in the circumstances.

The application was granted. The respondents were ordered to pay arrear levy contributions of R3 458.29 in full on or before 31 March 2024. No order as to costs was made.

A body corporate is entitled, under the STSMA and section 39(1)(e) of the CSOS Act, to obtain an adjudication order for payment of arrear levy contributions and authorised interest where it proves, on a balance of probabilities, that levies were duly raised and remain unpaid by a unit owner. An owner in a sectional title scheme may not withhold payment of levies on the basis of disagreement with the decision to impose them.

The adjudicator observed that non-payment of levies can seriously destabilise a scheme and that levies are the 'lifeblood' of shared living schemes because they fund maintenance, repair, insurance, security, and other common expenses. The adjudicator also remarked generally that parties in section 54 CSOS determinations are ordinarily expected to bear their own costs unless the limited circumstances for punitive or dismissal-related costs under section 53 arise.

This adjudication reaffirms the enforceability of levy obligations in sectional title schemes through the CSOS dispute-resolution mechanism. It illustrates that a body corporate may recover unpaid levies and authorised interest on paper-based proceedings where it provides sufficient documentary proof, especially in the absence of any response from the owner. The matter also underscores the importance in South African sectional title law of prompt levy payment to preserve the financial viability of community schemes.