San Martinho Body Corporate v Chisha Bwalya Makosela

The applicant, San Martinho Body Corporate, is the body corporate of a residential sectional title scheme in Bedford Gardens, Bedfordview, Gauteng. The respondent, Chisha Bwalya Makosela, is the registered owner of unit 168 in the scheme and therefore a member of the body corporate. The body corporate alleged that the respondent had failed to make regular levy payments over a period of time and claimed arrear levy contributions totalling R30 556.36, inclusive of interest calculated at 10% per annum. A trustee resolution dated 3 May 2023 authorised the recovery of the outstanding contributions, and the matter was referred to the Community Schemes Ombud Service after internal remedies were exhausted. A section 43 notice was issued to the respondent on 6 September 2023 calling for a response, but the respondent failed to respond, including after being afforded a further opportunity. Following the issue of a certificate of non-resolution in terms of section 48(1) of the CSOS Act dated 11 August 2023, the dispute proceeded to adjudication on the papers.

• Whether the CSOS had jurisdiction under sections 38 and 39(1)(e) of the Community Schemes Ombud Service Act 9 of 2011 to determine the dispute.
• Whether the body corporate had established, on a balance of probabilities, that the respondent owed arrear levy contributions in the amount of R30 556.36.
• Whether the body corporate was entitled to recover interest on overdue levy amounts under the applicable management rules and statutory framework.
• Whether any cost order should be made in the adjudication.

The application was granted. The respondent was ordered to pay arrear levy contributions to the applicant in the amount of R30 556.36 in full on or before 31 March 2024. No order as to costs was made.

A body corporate in a sectional title scheme may recover duly raised levy contributions, together with permissible interest on overdue amounts, through an application under section 39(1)(e) of the CSOS Act, provided it establishes the indebtedness on a balance of probabilities. An owner may not withhold levy payments on the basis of disagreement with the decision to impose the levies. Where the applicant provides sufficient evidence of the levy debt and the respondent does not rebut it, an adjudicator is entitled to grant payment of the arrears.

The adjudicator observed that levies are the 'lifeblood' of shared living schemes and that non-payment can seriously destabilise a scheme by undermining maintenance, repair, insurance, security and the collective investment of owners. The adjudicator also commented generally that parties before the CSOS are usually expected to bear their own costs, with costs orders being more common in matters dismissed as frivolous, vexatious, misconceived or non-compliant under section 53.

The matter illustrates the CSOS's role as a statutory forum for the enforcement of body corporate levy claims under section 39(1)(e) of the CSOS Act. It reaffirms that sectional title owners are obliged to pay duly raised levies and that non-payment threatens the viability of communal schemes. The decision is also significant for confirming that, where the body corporate provides adequate documentary proof and the owner fails to respond, levy recovery orders will readily be granted on the papers.