The Trustees of Don Roberto Body Corporate v L. Lithenye & N. Lukusu

The applicant, the Trustees of Don Roberto Body Corporate, brought a dispute resolution application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) against the respondents, L. Lithenye and N. Lukusu, the owners of Unit 19 in the Don Roberto scheme in Johannesburg. The body corporate alleged that the respondents had failed to pay monthly levies and had fallen into arrears. According to the applicant’s statement, the outstanding amount as at 1 November 2023 was R72 830,22, inclusive of interest. The body corporate and its managing agent had attempted to obtain payment. The matter proceeded on the papers after a certificate of non-resolution was issued. Although invited to file submissions by 25 October 2023, the respondents did not oppose the application or provide any explanation for their failure to respond.

• Whether the CSOS adjudicator had jurisdiction under section 39(1)(e) of the CSOS Act to order payment of outstanding levies.
• Whether the applicant had established, on a balance of probabilities, that the respondents owed the body corporate R72 830,22 in unpaid levies and interest.
• Whether liability for levies attaches to ownership of a unit in a sectional title scheme.
• Whether the applicant was entitled to recover legal costs in addition to levies and interest in the absence of taxed, agreed, or otherwise authorised costs.

The application was upheld. The respondents were ordered to pay the applicant R72 830,22, inclusive of interest, in 12 equal instalments of R6 069,18 commencing on 1 December 2023, with the last instalment due on 1 December 2024. If the respondents default, the full outstanding amount becomes immediately due and payable. No order as to costs was made.

An owner of a unit in a sectional title scheme is legally obliged to pay levies validly imposed by the body corporate, and the body corporate may obtain relief under section 39(1)(e) of the CSOS Act for payment of arrear levies and interest where the indebtedness is proved on a balance of probabilities. However, legal costs are not recoverable as part of the owner’s indebtedness unless such costs have been agreed by the owner, taxed, or authorised by a competent order.

The adjudicator made broader observations, with reference to authorities, that membership of and compliance with the rules of community schemes are incidents of voluntary ownership within such schemes, and that owners are generally expected to submit to levy obligations imposed under the statutory and management rule framework. The discussion of appeal rights under section 57 of the CSOS Act was also ancillary to the decision.

This decision illustrates the CSOS’s role in enforcing levy obligations in sectional title and community schemes. It confirms that levy liability follows ownership of a unit and that a body corporate may obtain an adjudication order for arrear contributions under section 39(1)(e) of the CSOS Act. It is also significant for drawing a distinction between recoverable levies and legal costs, confirming that legal costs cannot simply be loaded onto an owner’s account unless they are agreed, taxed, or otherwise properly authorised.