The Trustees of Malacite Crest Body Corporate v A Khoza

The applicant was the trustees of the Malacite Crest Body Corporate, a body corporate established under the Sectional Titles Schemes Management Act 8 of 2011, represented by its managing agent, Vhumbanani Property Management Solutions. The respondent, A Khoza, was the owner of Unit 94 in the Malacite Crest sectional title scheme. The body corporate alleged that the respondent had failed to pay levies and related charges owing to the scheme. The applicant brought an application to the Community Schemes Ombud Service in terms of section 38 of the Community Schemes Ombud Service Act 9 of 2011, seeking relief under section 39(1)(e) for payment of outstanding contributions. The respondent filed no submissions. The Ombud referred the matter directly to adjudication after the respondent failed to respond. The applicant produced a signed mandate authorising the managing agent to act, and a statement dated 11 September 2023 showing arrears of R35 137.66 as at 1 September 2023.

• Whether the applicant had authority to institute the CSOS proceedings through its managing agent
• Whether the respondent, as owner of a unit in the scheme, was liable to pay outstanding levies and charges to the body corporate
• Whether the body corporate was entitled under section 39(1)(e) of the CSOS Act, read with sections 3(1)(c) and 3(2) of the STSMA, to recover the arrear amount through CSOS
• Whether the amount of R35 137.66 was proved on a balance of probabilities and duly authorised

The application was granted. The respondent was ordered to pay R35 137.66 in six equal monthly instalments of R5 856.28 starting on 29 December 2023. If the respondent defaulted on any instalment, the full outstanding balance would immediately become due and payable. The order took effect immediately upon electronic service. Each party was ordered to pay its own costs.

A body corporate established under the STSMA is entitled to require owners to pay contributions towards scheme expenses under section 3(1)(c) of the STSMA, and may recover unpaid levies from an owner through an application to CSOS under section 3(2) of the STSMA and section 39(1)(e) of the CSOS Act. Where the body corporate proves the managing agent's authority, produces an account showing the arrears, and shows that the levies and charges were duly authorised, and the owner offers no rebuttal, an adjudicator may order payment of the outstanding amount.

The adjudicator referred generally to the evidentiary approach in civil matters, namely that relevant evidence must be assessed on a balance of probabilities with regard to credibility and probabilities. The order also noted the statutory right of appeal to the High Court under section 57 of the CSOS Act on a question of law only. These observations were ancillary to the dispositive finding on liability for arrear levies.

The decision illustrates the CSOS's role as an accessible statutory forum for bodies corporate to recover arrear levies from unit owners under the STSMA and CSOS Act. It confirms that a body corporate may act through an authorised managing agent, that levy obligations are enforceable through adjudication on the papers where a respondent does not participate, and that duly authorised statements of account and trustee resolutions can suffice to prove indebtedness on a balance of probabilities.