The Directors of Leopards Rock Home Owners Association v P. A. Mogale

The applicant, a home owners association referred to in the judgment as the Directors of Albertsal Leopards Rest/Leopards Rock Home Owners Association, brought an application under the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) against the respondent, P. A. Mogale, the owner of Unit 32 in the scheme. The association alleged that the respondent had failed to pay levies from August 2022 and that, according to the latest statement up to 1 August 2023, arrear levies in the amount of R15 490,37 were outstanding, inclusive of interest. The applicant relied on the scheme's conduct rules and memorandum of incorporation, which required levies to be paid monthly in advance and permitted interest on arrears. The matter proceeded on the papers after the respondent failed to submit any response despite being invited to do so. A certificate of non-resolution was issued and the matter was referred to adjudication.

• 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 respondent owed arrear levies in the amount of R15 490,37.
• Whether the conduct rules and memorandum of incorporation of the home owners association created a binding obligation on the respondent to pay monthly levies and interest on arrears.
• Whether the applicant was entitled to relief in the absence of any opposing submissions by the respondent.

The application was upheld. The respondent was ordered to pay the applicant R15 490,37, inclusive of interest, in 4 equal instalments of R3 872,59 commencing on 1 September 2023 and ending on 1 December 2023. The order did not affect the respondent's ongoing obligation to pay regular monthly levies and ancillary payments. If the respondent failed to make one payment as ordered, the full outstanding amount would become immediately due and payable. No order as to costs was made.

An owner in a home owners association is bound by the association's conduct rules and constitutive documents, including obligations to pay levies and interest on arrears. Where the association proves, on a balance of probabilities, that levies are outstanding, a CSOS adjudicator may grant an order under section 39(1)(e) of the CSOS Act directing payment of the arrear amount. The contractual nature of membership in a private estate means that levy obligations are enforceable against owners who voluntarily purchased property in the scheme.

The adjudicator made general remarks about evidentiary principles, including that only relevant evidence should be considered and that proof is determined on a balance of probabilities. The order also observed that the respondent appeared, for whatever reason, to be unwilling to pay the outstanding levies. The judgment further recorded the statutory right of appeal under section 57 of the CSOS Act, but those remarks were not necessary to the determination of liability.

The decision illustrates the CSOS adjudication process for recovery of arrear levies in community schemes and confirms that a home owners association may obtain relief under section 39(1)(e) of the CSOS Act for unpaid contributions. It reinforces the South African principle, recognised by the Supreme Court of Appeal, that owners who choose to buy into an estate are contractually bound by the scheme's governing documents, including levy obligations and interest provisions. The case is also a practical example of CSOS granting relief on the papers where the respondent fails to oppose the claim.