Andre Goosen v Denmyr Body Corporate

The applicant, Andre Goosen, is the registered owner of units 7 and 26 in the Denmyr sectional title scheme in Linden, Johannesburg. He fell into arrears on levy payments, which he attributed to illness and loss of income during the Covid-19 period. The body corporate handed his account to attorneys for debt collection and obtained a default judgment against him for part of the arrears. In July 2022, the applicant proposed to settle the outstanding levies over 24 months, but on condition that legal fees be excluded from the capital debt, that interest be frozen or not charged during the payment period, and that only taxed legal fees be recoverable. The respondent indicated it was willing to accept a payment arrangement, but not on the applicant's terms, particularly not excluding legal fees. The applicant then approached the Community Schemes Ombud Service for relief under section 39(1)(c) and section 39(7)(a) of the CSOS Act, seeking to compel acceptance of his proposed payment arrangement and to compel production of a copy of the default judgment.

• Whether a CSOS adjudicator has statutory power under section 39 of the CSOS Act to compel a body corporate to accept an owner's proposed settlement or payment arrangement for levy arrears on terms dictated by the owner.
• Whether the applicant's reliance on PMR 25(4) of the Sectional Titles Schemes Management Act regarding taxed or agreed legal costs was relevant to the relief sought.
• Whether the body corporate could be ordered under section 39(7)(a) of the CSOS Act to provide the applicant with a copy of a court default judgment and details of the costs order.
• Whether the applicant had established entitlement to relief on a balance of probabilities.

The application was dismissed. The adjudicator refused the applicant's request to compel the respondent to accept his levy-arrears settlement proposal excluding legal fees, and also refused the request to compel the respondent to provide a copy of the default judgment and details of the costs order. No order as to costs was made.

A CSOS adjudicator may grant only those remedies expressly authorised by section 39 of the CSOS Act. The adjudicator has no power to compel a body corporate to accept an owner's offer or proposed payment arrangement for arrear levies on terms imposed by the owner, because an unaccepted offer creates no binding agreement in common law. Furthermore, a body corporate cannot be compelled under the access-to-information relief in section 39(7)(a) to provide a copy of a court default judgment where such judgment is a public court document and not a scheme record that the association is obliged to keep and provide.

The adjudicator observed that the applicant did not dispute his indebtedness and that the respondent had incurred legal costs in pursuing collection and obtaining default judgment. The adjudicator also commented that the issue whether the legal fees were taxable or recoverable under PMR 25(4) was not before him for determination in this application. The reference to the applicant's additional conditions, including freezing interest and personal liability of trustees for unrecovered legal costs, was discussed as part of the applicant's position, but those matters were not finally adjudicated as independent issues because the core relief sought fell outside the adjudicator's powers.

The matter is important in South African community schemes jurisprudence because it affirms that CSOS adjudicators are creatures of statute and may grant only remedies authorised by section 39 of the CSOS Act. It underscores that CSOS cannot be used to force a body corporate into a contractual settlement arrangement not accepted by it, and that adjudicators cannot fashion remedies beyond the statute. The decision also distinguishes between access to scheme records and access to public court documents, clarifying that a body corporate is not obliged under the CSOS/STSMA framework to furnish court orders to owners merely because they relate to debt collection.