Market Square Body Corporate v T Subramony

The applicant, Market Square Body Corporate, is the body corporate of a residential sectional title scheme situated in Plein Street, Tongaat, Durban, KwaZulu-Natal. The respondent, T Subramony, is the registered owner of unit 10 in the scheme and therefore a member of the body corporate. The body corporate alleged that the respondent had failed to pay levy contributions over a period of time, resulting in arrears of R11 463.00. The application was lodged with the Community Schemes Ombud Service (CSOS) on 19 August 2023 under section 38 of the Community Schemes Ombud Service Act 9 of 2011, seeking relief under section 39(1)(e) for payment of contributions. The respondent did not respond to the section 43 notice issued on 6 September 2023, nor to further opportunities to respond. Conciliation did not resolve the matter, and a certificate of non-resolution was issued on 15 September 2023, after which the matter was referred to adjudication on the papers.

• Whether the CSOS had jurisdiction under sections 38 and 39 of the CSOS Act to determine the levy dispute.
• Whether the applicant body corporate had established, on a balance of probabilities, that the respondent owed arrear levy contributions of R11 463.00.
• Whether a body corporate is entitled under the STSMA and management rules to recover unpaid levies from a unit owner through CSOS proceedings.
• Whether any order as to costs should be made in the adjudication.

The application was granted. The respondent was ordered to pay arrear levy contributions of R11 463.00 to the applicant in full on or before 31 March 2024. No order as to costs was made.

A body corporate in a sectional title scheme may recover unpaid levy contributions from a unit owner through CSOS proceedings under section 39(1)(e) of the CSOS Act where it establishes, on a balance of probabilities, that levies were duly raised under the STSMA and remain unpaid. A unit owner is obliged to pay levies and may not simply withhold payment because of dissatisfaction with the levies or their underlying rationale.

The adjudicator observed that non-payment of levies can seriously destabilise a scheme because levies are the 'lifeblood' of shared living schemes and are necessary for maintenance, repairs, insurance, security and the protection of owners' collective interests. The adjudicator also made general remarks about the limited circumstances in which costs orders are typically granted in CSOS matters, particularly contrasting section 54 adjudications with dismissals under section 53.

The case illustrates the CSOS adjudication process for recovery of arrear levies in sectional title schemes and reaffirms that levy obligations are enforceable through CSOS under section 39(1)(e) of the CSOS Act. It underscores the importance of levy payments to the functioning of community schemes and confirms that, where a body corporate provides sufficient proof of indebtedness and the owner fails to respond, CSOS may order payment on the papers. The decision also reflects the general approach that costs are not ordinarily awarded in section 54 adjudications unless special circumstances exist.