The Trustees of Basil Court Body Corporate v Mthobisi Selby Magagula

The applicant, the Trustees of Basil Court Body Corporate, brought an application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) against the respondent, Mthobisi Selby Magagula, the owner of unit 1015 in the scheme. The body corporate alleged that the respondent was in arrears with levy payments in the amount of R12 307.52. It stated that monthly statements were sent to the respondent by email and that further reminders were sent by email, SMS, and telephone. The applicant sought three forms of relief: payment of the arrear levies, an order effectively directing rental from the unit to be intercepted, and attachment and sale of the unit if levy defaults continued. The respondent filed no submissions despite being requested to do so, and the matter proceeded on the papers after a certificate of non-resolution was issued.

• Whether the respondent, as owner of a sectional title unit, was liable to the body corporate for arrear levies of R12 307.52.
• Whether the adjudicator could grant relief under section 39(1)(f) of the CSOS Act in relation to rental payable by a tenant where the tenant had not been cited or identified.
• Whether the adjudicator had jurisdiction under section 39 of the CSOS Act to order attachment and sale in execution of the respondent's unit for unpaid levies.
• What competent and enforceable relief could be granted under the CSOS Act on the facts presented.

The application succeeded in part. The respondent was declared liable to the applicant for R12 307.52 in levy arrears and was ordered to pay that amount in three monthly instalments of R4 102.50 from 1 October 2023, payable on or before the 7th day of each month, failing which the full outstanding balance would immediately become due and payable. The requests relating to rental interception and attachment/sale of the unit were refused. No order as to costs was made.

A registered owner in a sectional title scheme is liable to the body corporate for levies as an incident of ownership, and in the absence of a contrary version, arrear levies proved on the papers may be ordered to be paid under section 39(1)(e) of the CSOS Act. Relief under section 39(1)(f) cannot be granted against a tenant who has not been identified and joined, because such an order would be unenforceable and contrary to audi alteram partem. An adjudicator under the CSOS Act may grant only remedies authorized by section 39; attachment and sale in execution of immovable property lie outside that statutory jurisdiction and must be sought from a court.

The adjudicator observed that, without condoning the respondent's non-payment, fairness and the interests of justice justified allowing the arrear debt to be paid in monthly instalments. The adjudicator also suggested that affording the respondent time to settle the debt by instalments was an appropriate practical approach in the circumstances. These comments were ancillary to the core findings on liability and jurisdiction.

The matter is significant for South African community schemes jurisprudence because it reaffirms that levy liability is a legal incident of sectional title ownership and may be enforced through CSOS. It also clarifies the limits of CSOS adjudicative power: relief under section 39(1)(f) requires proper citation of the tenant, and CSOS cannot order attachment and sale in execution of immovable property because such relief falls outside the statutory remedies in section 39. The decision illustrates the distinction between competent CSOS remedies and relief that must be pursued in court.