Executive Committee of Thatchfield Homeowners' Association v MM Ramphago

The applicant, the Executive Committee of Thatchfield Homeowners' Association (THOA), represented by its managing agent JM Venter Property Services CC pursuant to a trustee resolution dated 5 September 2023, brought an application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act). THOA is a residential community scheme situated at 74 Brakfontein Road, The Reeds, Centurion, Gauteng, established under the Companies Act 61 of 1973 with a memorandum/articles and conduct rules. The respondent, MM Ramphago, is the owner of Erf 3611, Unit 27 in the scheme, and by virtue of ownership is a compulsory member of THOA under its MOA. THOA alleged that the respondent had fallen into arrears with levy contributions payable to the association in the amount of R21 731.98, inclusive of interest at 15% per annum, as reflected in the October 2023 statement. The respondent did not respond to the section 43 notice issued by CSOS on 17 October 2023, nor to subsequent opportunities to make submissions. A certificate of non-resolution was issued on 10 January 2024 and the matter proceeded to adjudication on the papers.

• Whether the CSOS had jurisdiction to determine the dispute under sections 38 and 39(1)(e) of the CSOS Act.
• Whether the respondent, as owner of a unit in the scheme and member of THOA, was legally obliged under the scheme's MOA/rules to pay levy contributions.
• Whether the applicant proved on a balance of probabilities that the respondent owed arrear levies in the amount of R21 731.98.
• Whether an order for payment should be granted under section 39(1)(e) of the CSOS Act.
• Whether any costs order should be made.

The application was granted. The respondent was ordered to pay arrear levy contributions of R21 731.98 to the applicant on or before 31 May 2024. No order was made as to costs.

An owner of property within a homeowners' association community scheme is, by virtue of ownership and the scheme's constitutive documents, a compulsory member bound to pay levy contributions. Where the association proves the arrears on a balance of probabilities, and due process has been followed, an adjudicator may grant an order under section 39(1)(e) of the CSOS Act for payment of outstanding levies. The association's constitution/MOA and rules create a contractual relationship binding its members.

The adjudicator observed that non-payment of levies can seriously destabilise a community scheme and that levies are 'the lifeblood' of shared living schemes because they fund maintenance, repairs, insurance and security for the benefit of all owners. The adjudicator also remarked generally that costs orders are more commonly made in matters dismissed as frivolous, vexatious, misconceived or without substance, or where there is non-compliance with section 51 requirements, which was not the case here.

This adjudication illustrates the enforcement role of the CSOS in levy disputes within community schemes and reaffirms that homeowners' association constitutions/MOAs and rules are binding on members as a matter of contract. It also underscores the practical and legal importance of prompt levy payment to the sustainability of community schemes, and shows that where an owner fails to respond and the documentary proof is sufficient, CSOS may grant payment relief on the papers under section 39(1)(e).