Cayenne Close Body Corporate v Mxoleli Cwati

Cayenne Close Body Corporate, a registered sectional title scheme development in Strand, Western Cape, brought an application under section 38 read with section 39(1)(e) of the Community Schemes Ombud Service Act 9 of 2011 against Mxoleli Cwati, the owner of a unit in the scheme. The body corporate alleged that the respondent had failed to pay levy contributions imposed by the trustees, resulting in arrears of R11 316, inclusive of interest, as reflected in the May 2023 statement. The applicant stated that requests for payment had been made, internal remedies had been exhausted, and the trustees resolved to pursue recovery through CSOS. A contribution statement and breakdown of the levies were submitted. The respondent did not file submissions in response to the section 43 notice, and after conciliation failed, a certificate of non-resolution was issued on 27 October 2023 and the matter proceeded to adjudication on the papers.

• Whether the body corporate was entitled under section 39(1)(e) of the CSOS Act to an order compelling payment of arrear levy contributions.
• Whether the applicant had provided sufficient evidence on a balance of probabilities that the levies were validly raised and remained due and payable by the respondent.
• Whether interest on the overdue levy account could be included in the amount claimed.
• Whether any costs order should be made in the adjudication.

The application was granted. The respondent was ordered to pay arrear levy contributions of R11 316 in full on or before 30 April 2024. No order as to costs was made.

A body corporate is entitled to recover arrear levy contributions, and authorised interest on overdue amounts, from a unit owner through a CSOS application under section 39(1)(e) where it proves on a balance of probabilities that the levies were validly raised under the STSMA and remain unpaid. A unit owner may not withhold payment of levies because of disagreement with the decision to impose them.

The adjudicator's remarks that levies are the 'lifeblood' of shared living schemes and that non-payment can destabilise a scheme were explanatory observations underscoring the policy importance of prompt levy payment. The discussion of when cost orders are more readily made under section 53 of the CSOS Act was also incidental to the main decision.

The matter reinforces the enforceability of levy obligations within sectional title schemes through the CSOS adjudication process. It confirms that a body corporate may recover unpaid contributions and authorised interest by way of a section 39(1)(e) application, and that non-payment of levies threatens the financial stability of community schemes. The decision is also a practical example of CSOS using paper-based adjudication where a respondent fails to participate.