Don Diego Body Corporate v X Nxumalo; consolidated with Xolani Nxumalo v Don Diego Body Corporate

The matters concerned a dispute between Don Diego Body Corporate and Mr Xolani Nxumalo, the owner of a unit in the Don Diego sectional title scheme in Radiokop, Roodepoort, Gauteng. The Body Corporate applied under section 39(1)(e) of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) for an order compelling payment of arrear levies and related amounts. Mr Nxumalo separately approached CSOS alleging abuse of his rights, challenging legal fees debited to his levy account after the account had been handed to attorneys, requesting a breakdown of charges for the previous five years, and seeking a meeting and mediation. The two matters were consolidated because they involved the same parties and the same underlying dispute. Mr Nxumalo acknowledged that he was in arrears and explained that he lost his job in June 2019, had ongoing labour litigation, and could not meet the payment terms suggested during conciliation. He sought indulgence, including the stopping of interest charges and permission to pay only current levies plus limited amounts toward arrears. During the process, the Body Corporate stated that it had written off all legal fees and debt collection fees on his account, but not interest on arrear levies. The evidence showed that Mr Nxumalo's account had been in persistent arrears for many years, with the arrear amount standing at R172 111.79 by February 2024/2025 as reflected in the order and summary evidence, inclusive of levies, CSOS levies, and interest charged pursuant to a trustee resolution under Prescribed Management Rule 21(3)(c). A face-to-face hearing turned into renewed settlement discussions, but although material terms were drafted, Mr Nxumalo refused to sign the settlement agreement because he wanted it marked 'without prejudice'. The adjudicator then determined the matter on the papers and evidence before her.

• Whether the Body Corporate had proved on a balance of probabilities that Mr Nxumalo was indebted to it for arrear levies and ancillary charges under section 39(1)(e) of the CSOS Act.
• Whether the disputed legal fees and debt collection fees remained live issues once those amounts had been credited and written off by the Body Corporate.
• Whether the Body Corporate was entitled to continue charging interest on arrear levies in terms of Prescribed Management Rule 21(3)(c) and a trustee resolution.
• Whether CSOS had jurisdiction to grant the various forms of relief sought by Mr Nxumalo, including requests for meetings, mediation, and complaints framed as abuse of rights.
• Whether Mr Nxumalo was entitled to access documents and information from the Body Corporate under Prescribed Management Rules 26 and 27.
• How to balance the Body Corporate's statutory duty to collect levies against Mr Nxumalo's complaints of unfairness and alleged rights infringement.

The main application by Don Diego Body Corporate was granted. Mr Xolani Nxumalo was ordered to pay R172 111.79 in arrear levies and ancillary charges, in 36 equal monthly instalments of R4 780.88 commencing on 1 March 2024, with the remaining 35 instalments payable on the first day of each consecutive month thereafter. The amount included interest already charged at 24% per annum under trustee resolution. The order did not affect ongoing monthly levies and ancillary payments, and any default on one payment would render the full balance immediately due, with interest continuing to accrue on new outstanding amounts. In addition, the adjudicator ordered in Mr Nxumalo's favour that the Body Corporate must make documents and information available to him as required under Prescribed Management Rules 26 and 27. There was no order as to costs.

A body corporate is entitled to recover arrear levies and ancillary charges from a unit owner through CSOS where the indebtedness is proved on a balance of probabilities. Where trustees have adopted a valid written resolution under Prescribed Management Rule 21(3)(c), the body corporate may charge interest on overdue levy amounts. Legal fees and debt collection charges that have been written off and credited to an owner's account no longer constitute a live dispute for adjudication. In balancing the parties' rights and obligations, the body corporate's statutory obligation under the STSMA to raise funds and collect contributions from owners justifies enforcement against a defaulting owner, while the owner remains entitled to access scheme records and information in terms of Prescribed Management Rules 26 and 27.

The adjudicator commented that it would be unfair and unjust for the parties not to receive finality after multiple unsuccessful conciliations. She also observed that interest on arrears is not a penalty but serves to offset the depreciation in the value of money. Further non-binding observations included that defaulting owners are effectively subsidised by compliant owners, that the Body Corporate had in fact attempted to assist Mr Nxumalo by writing off untaxed legal fees and debt collection charges, and that Mr Nxumalo had not substantiated any constitutional or rights-based complaints despite being afforded opportunities to do so.

The order is significant in community schemes and sectional title governance because it confirms CSOS's role in enforcing levy obligations while also requiring transparency from bodies corporate. It illustrates that a body corporate's statutory duty to collect levies will generally be enforced where arrears are admitted or proved, even where the owner raises hardship. It also shows that disputes about legal or debt collection charges may become moot if those charges are reversed, but interest on arrears remains recoverable if properly authorised under Prescribed Management Rule 21(3)(c). The decision further demonstrates the limits of CSOS jurisdiction: not every grievance or request for meetings or mediation constitutes competent relief under section 39 of the CSOS Act.