Benoni City Body Corporate v Nkosinathi Joseph Sithole

The applicant, Benoni City Body Corporate, a sectional titles body corporate, brought an application under section 38 read with section 39(1)(e) of the Community Schemes Ombud Service Act 9 of 2011 for payment of arrear levies and ancillary charges by the respondent, Nkosinathi Joseph Sithole, the registered owner of unit 413 in the scheme. The body corporate alleged that the respondent had failed to pay monthly levies and related charges despite numerous written demands and other attempts at internal resolution, including phone calls, text messages, and emails. It submitted a statement of account showing arrears of R13 487.42 as at 8 December 2023, including levies, utility costs, CSOS levies, and related charges, as well as a trustees' resolution dated 10 October 2022 authorising interest at 2% per month on arrears and approving ancillary charges. The respondent filed no submissions and did not contest the application.

• Whether the body corporate had established, on a balance of probabilities, that the respondent was indebted to it for unpaid levies and ancillary charges.
• Whether the charges claimed fell within contributions or charges lawfully levied under the Sectional Titles Schemes Management Act 8 of 2011, the rules, and the trustees' resolution.
• Whether relief should be granted under section 39(1)(e) of the Community Schemes Ombud Service Act ordering payment of the outstanding amount.
• Whether the adjudicator should permit payment of the arrears by instalments while preserving the respondent's obligation to continue paying current monthly levies.

The application was granted. The respondent was declared indebted to the applicant in the amount of R13 487.42 in respect of levies and ancillary charges as at 8 December 2023. The respondent was ordered to pay this amount in 9 equal monthly instalments of R1 498.60 commencing on 1 April 2024, with the remaining 8 instalments due on the last day of each succeeding month. The order expressly preserved the respondent's ongoing obligation to pay regular monthly levies and ancillary charges. Interest at 2% per month would accrue on any outstanding amount in the event of default, and if the respondent defaulted on any payment, the full amount would become immediately due and payable. No order as to costs was made.

A body corporate established under the Sectional Titles Schemes Management Act is entitled to require owners to pay levies and properly authorised ancillary charges necessary for the administration and maintenance of the scheme. Where the body corporate proves, on a balance of probabilities, by means of statements of account and relevant resolutions, that an owner is in arrears, and there is no contrary evidence, an adjudicator may grant relief under section 39(1)(e) of the CSOS Act ordering payment of the outstanding amount, including by instalments. Levy obligations arise from the statutory and rules-based duties of ownership in the scheme, and non-payment prejudices the body corporate and compliant owners.

The adjudicator observed that an owner who defaults on levy payments is effectively subsidised by other members of the body corporate who pay their levies conscientiously. The decision also notes, by reference to Prescribed Management Rule 25(5), that a body corporate may not debit an owner's account with amounts that are not contributions or charges properly levied under the Act or rules without consent or judicial/adjudicative authority. The order appears to contain a drafting error in clause 50.6, which states 'In the event that the Applicant fails to make payment' when the context suggests it should refer to the respondent; this is apparent from the surrounding provisions but the judgment does not expressly address it.

The matter is significant as a straightforward CSOS levy-recovery adjudication confirming that a body corporate may obtain relief under section 39(1)(e) of the CSOS Act for unpaid levies and related charges where it provides documentary proof of the debt and the owner does not dispute liability. It illustrates the interaction between the CSOS Act and the Sectional Titles Schemes Management Act in enforcing owners' contribution obligations, and reinforces the principle that body corporates depend on levy payments to perform their statutory functions. It also shows that adjudicators may structure repayment by instalments while preserving the body corporate's right to current and future levies.