The Trustees of Cayenne Close Body Corporate v Only Mookoa

The applicant, the Trustees of Cayenne Close Body Corporate, brought an application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) against the respondent, Only Mookoa, the owner of unit 1031 in the scheme. The body corporate alleged that the respondent had fallen into arrears with levy payments. The papers initially referred to arrears of R9 332.00, but the updated statement of account before the adjudicator reflected arrear levies of R11 574.50 as at 24 August 2023. The applicant stated that monthly statements had been emailed to the respondent and that reminders were sent by email, SMS and telephone. The applicant sought three forms of relief: payment of outstanding levies, an order redirecting or interdicting the monthly rental of the unit, and attachment and sale of the unit upon further default. The respondent did not respond to the section 43 notice, made no submissions, and the matter proceeded on the papers after a certificate of non-resolution was issued.

• Whether the respondent, as owner of a unit in the sectional title scheme, was liable for arrear levies claimed by the body corporate.
• Whether the adjudicator could grant relief under section 39(1)(e) of the CSOS Act ordering payment of arrear levies.
• Whether relief under section 39(1)(f) of the CSOS Act could be granted where the tenant allegedly paying rental 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 upon default.
• Whether, in the absence of opposition, the applicant had proved its claim on a balance of probabilities.

The application succeeded in part. The respondent was declared liable to the applicant in the amount of R11 574.50 for levy arrears. The respondent was ordered to pay the debt in three monthly instalments of R3 858.16 commencing on 7 September 2023 and on or before the 7th day of each subsequent month until paid in full. If any instalment was not paid on due date, the full outstanding balance would immediately become due and payable. The requests to redirect/interdict rental and to attach and sell the unit were refused. No order as to costs was made.

An owner of a unit in a sectional title scheme is liable for body corporate levies as an incident of ownership, and a body corporate may recover arrear levies through relief under section 39(1)(e) of the CSOS Act where the indebtedness is proved on a balance of probabilities. A rental-payment order under section 39(1)(f) cannot be granted unless the relevant tenant is identified and cited so that procedural fairness is observed. A CSOS adjudicator has no power to grant relief not authorised by section 39 of the CSOS Act, including attachment and sale in execution of immovable property.

The adjudicator observed that, although the respondent's non-payment was not condoned, fairness and the interests of justice justified affording the respondent additional time to pay the arrears by instalments. The adjudicator also remarked that the applicant would need to approach a court of law if it wished to pursue attachment and sale of the unit.

The decision is significant in community schemes jurisprudence because it confirms, within the CSOS dispute-resolution framework, that levy liability is an incident of ownership and may be enforced by a body corporate through CSOS proceedings on the papers where the owner fails to dispute the claim. It also clarifies important limits on CSOS adjudicative power: rental-redirection orders under section 39(1)(f) require the tenant to be identified and cited, and CSOS adjudicators cannot order attachment and sale in execution of immovable property because such relief falls outside section 39 of the CSOS Act. The matter illustrates both the utility and the jurisdictional limits of CSOS as a statutory forum.