Trustees of Malacite Crest Body Corporate v T R Ndimande

The applicant is the trustees of the Malacite Crest Body Corporate, a community scheme and body corporate established under the Sectional Titles Schemes Management Act 8 of 2011. The respondent, T R Ndimande, is the registered owner of Unit 61 in the scheme. The body corporate alleged that the respondent had failed to pay levies and ancillary charges over an extended period, despite statements, SMSs, notices, and a handover letter dated 13 September 2023 warning that the matter would be referred to CSOS. The arrears had reportedly accumulated from at least September 2019. The applicant sought an order under section 39(1)(e) of the Community Schemes Ombud Service Act 9 of 2011 for payment of R19,195.05, interest at 24% per annum, and charges incurred in lodging the application. The respondent filed no submissions and did not respond to the section 43 notice or to the adjudicator’s invitation for final written submissions.

• Whether the respondent, as a unit owner, was liable to the body corporate for arrear levies and ancillary charges under the STSMA and prescribed management rules.
• Whether the applicant had proved, on a balance of probabilities, the amount owing by the respondent.
• Whether the body corporate was entitled to charge interest on overdue contributions.
• Whether the administrative and collection charges debited to the respondent’s account were lawful.
• Whether the adjudicator had jurisdiction under section 39 of the CSOS Act to award the applicant its costs of lodging the application.
• Whether relief should be granted in the form claimed, or in a modified form.

The application succeeded in part. The adjudicator found for the applicant and ordered the respondent to pay R19,195.05 in arrear levies and ancillary charges in 12 consecutive equal monthly instalments of R1,599.59, commencing within 30 days of delivery of the order, with subsequent instalments due on the first day of each succeeding month. No interest would accrue during the 12-month payment period. The respondent remained liable for ongoing monthly levies and ancillary charges. If the respondent defaulted, the full outstanding amount would become immediately due and payable. The applicant’s request for recovery of the costs of lodging the application was refused. There was no order as to costs.

A unit owner in a sectional title scheme is legally obliged to pay levies and ancillary charges validly determined by the body corporate under the STSMA and applicable prescribed management rules. Where the body corporate proves the arrears on a balance of probabilities and shows compliance with the scheme’s resolutions and statutory framework, an adjudicator may grant relief under section 39(1)(e) of the CSOS Act for payment of the arrears. Interest on overdue amounts may be charged where properly authorised by written trustee resolution and within the governing rules. However, a CSOS adjudicator may not grant relief falling outside the powers conferred by section 39, including application-related costs not authorised by the Act or directives.

The adjudicator observed that defaulting owners are effectively subsidised by compliant members and that non-payment of levies undermines the body corporate’s ability to maintain common property and perform its statutory duties. The adjudicator also referred to decided cases such as Body Corporate of Kleber v Sehube and Body Corporate of Empire Gardens v Sithole to emphasize the importance of levy collection in sectional title governance. These broader remarks about the impact of levy default and the functioning of body corporates were supportive context rather than strictly necessary to the final order.

The matter illustrates the CSOS adjudication process for recovery of sectional title levies and confirms the duty of owners in community schemes to pay duly raised contributions and ancillary charges. It also shows that, although a body corporate may prove entitlement to arrears, interest, and certain collection-related charges, a CSOS adjudicator may tailor relief by structuring repayment terms and limiting accrual of interest. The decision further underscores that adjudicators are confined to the remedies authorised by section 39 of the CSOS Act and generally cannot award application costs outside the statutory framework.