Kobi Baribi v Victory Court Body Corporate

The applicant, Kobi Baribi, is an owner in the Victory Court sectional title scheme. His tenant kept a dog at the property. The body corporate alleged that dog excrement had been found on the common property and, because the tenant's dog was said to be the only animal on the property, it assumed that the dog was responsible. On that basis the respondent imposed a R250 fine against the applicant's account. The applicant disputed liability, contending that the excrement was not from his tenant's dog, that there was no proof linking the dog to the excrement, that the dog did not defecate in the manner or location alleged, and that the fine had been imposed without proper proof or even a warning. The applicant sought an order under section 39(1)(c) of the Community Schemes Ombud Service Act 9 of 2011 declaring the charge unreasonable or incorrectly determined and requiring its removal from his levy account. The respondent refused to remove the fine and maintained that it believed the tenant's dog was responsible, while also raising broader complaints about pets in the building.

• Whether the body corporate was entitled to debit the applicant's levy account with a R250 fine for alleged dog excrement on the common property.
• Whether, on the evidence before the adjudicator, it was proved on a balance of probabilities that the applicant's tenant's dog caused the excrement complained of.
• Whether a fine based merely on assumption, rather than proof, was incorrectly determined or unreasonable within the meaning of section 39(1)(c) of the CSOS Act.
• Whether PMR 25(5) prohibited the body corporate from debiting the member's account with the fine absent consent or the authority of a judgment or order.

The application was granted. The respondent was ordered to remove the R250 fine from the applicant's levy statement by 1 July 2024, including any interest and incidental charges related to the fine. No order as to costs was made.

A body corporate cannot validly hold an owner liable for a fine or debit the owner's levy account where the alleged contravention has not been proved on a balance of probabilities. A charge imposed under section 39(1)(c) of the CSOS Act is incorrectly determined or unreasonable when it is based merely on assumption and not on sufficient evidence linking the owner or the owner's tenant to the complained-of conduct. Each alleged contravention must be assessed on its own facts and supported by evidence.

The adjudicator observed that owners have a responsibility to ensure that their tenants use the common property in a way that does not unreasonably interfere with other owners, and that dog excrement on common property would constitute such interference. He also noted broader allegations by the respondent regarding pets and further complaints, but indicated that those allegations could not justify the fine in issue without proof. These remarks were ancillary because the matter was decided on the absence of evidence linking the tenant's dog to the specific excrement for which the fine was imposed.

The decision underscores that a body corporate may not impose or recover financial penalties from an owner on the basis of mere suspicion or assumption. In the community schemes context, even where conduct rules and owner responsibilities exist, enforcement action affecting a member's levy account must be supported by evidence and must be fair. The ruling also affirms the protection in PMR 25(5) against unauthorised debits and illustrates the remedial role of CSOS under section 39(1)(c) in correcting unreasonable or incorrectly determined charges.