Khayalami Body Corporate v Musawuhleli Locust Gwala

Khayalami Body Corporate, a sectional title body corporate for a residential scheme in Empangeni, KwaZulu-Natal, lodged an application with the Community Schemes Ombud Service under section 38 of the Community Schemes Ombud Service Act 9 of 2011 seeking payment of arrear levies. It alleged that the respondent, cited as Musawuhleli Locust Gwala, the registered owner of unit 9, owed R93 053.52 in outstanding levies as reflected in the August 2023 statement of account. The matter proceeded through the CSOS process and a certificate of non-resolution was issued on 27 September 2023 after conciliation failed. During the adjudicator's investigation, it emerged that Mr Gwala had died on 16 November 2000, although the property remained registered in his name, the deceased estate had never been wound up, and the property was apparently inherited by his three children and rented to a tenant. No amendment application was brought to substitute the correct party, such as the deceased estate or another legally competent respondent.

• Whether the CSOS application for payment of arrear levies could competently proceed against a respondent who had long since died.
• Whether the application was misconceived and liable to dismissal under section 53(1)(a) of the CSOS Act because the incorrect party had been cited.
• Whether, in the absence of an amendment under section 45 of the CSOS Act, the adjudicator could grant relief against the cited respondent.
• Whether a costs order should be made against the applicant where the application was misconceived but not frivolous or vexatious.

The application was dismissed as misconceived in terms of section 53(1)(a) of the CSOS Act. Each party was ordered to pay its own costs.

A CSOS application for levy recovery is misconceived and liable to dismissal under section 53(1)(a) where the applicant cites a deceased person as respondent and fails, before adjudication, to amend the application under section 45 to substitute the legally correct party. Because liability for levies and body corporate membership are linked to ownership under the STSMA, relief must be sought against the proper owner, estate representative, or other competent party. CSOS adjudicators may act only within the powers conferred by the CSOS Act.

The adjudicator recommended that the relevant Master's Office be contacted to establish the status of the testate or intestate succession concerning the property so as to determine the proper way forward. The adjudicator also remarked that the application was not frivolous or vexatious despite being misconceived, and therefore a costs order against the applicant was not appropriate.

The decision is important in community schemes and sectional title practice because it underscores that levy recovery proceedings before CSOS must be brought against a legally competent and correctly identified respondent. A body corporate cannot obtain relief against a deceased person without first establishing the proper estate or successor party and, where necessary, amending the application before adjudication. The matter also illustrates the limited statutory jurisdiction of CSOS adjudicators and the procedural discipline required in levy disputes.