The Trustees of Tinza Lifestyle Estate Body Corporate v Nicky Henry Magola

The applicant, the Trustees of Tinza Lifestyle Estate Body Corporate, brought an application under section 38 read with section 39(1)(e) of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) against the respondent, Nicky Henry Magola, the owner of a unit in the scheme. The body corporate alleged that the respondent had failed to pay monthly levies due in respect of his unit and that the arrears, calculated up to 1 November 2023, amounted to R25 906,05. The applicant relied on the scheme’s conduct rules, particularly rule 16, which provides that levies are payable, allows monthly payment by agreement, authorises recovery proceedings for arrears, and permits the charging of interest on late payments. The respondent was invited to file written submissions but failed to respond or oppose the application. A certificate of non-resolution was issued and the matter proceeded to adjudication on the papers.

• Whether the body corporate was entitled under section 39(1)(e) of the CSOS Act to an order compelling payment of arrear levies by the respondent.
• Whether the evidence placed before the adjudicator established, on a balance of probabilities, that the respondent owed the applicant R25 906,05 in outstanding levies and interest.
• Whether the applicant was entitled to recover legal costs as part of the amount claimed absent the member’s consent or taxation/order authorising such costs.

The application was upheld. The respondent was ordered to pay the applicant R25 906,05, inclusive of interest, in 6 equal instalments of R4 317,67 commencing on 1 December 2023, with the last instalment due on 1 May 2024. If the respondent failed to make the payments, the full outstanding amount would immediately become due and payable. No order as to costs was made.

An owner in a sectional title or community scheme is bound by the scheme’s rules and remains liable for duly raised levies. Where a body corporate establishes, on a balance of probabilities, that levies are outstanding, section 39(1)(e) of the CSOS Act empowers an adjudicator to order payment of those arrears, including interest where properly due. However, legal costs are not recoverable from the owner merely because they were incurred by the body corporate; such costs become recoverable only if agreed by the owner or authorised through taxation or a competent court/adjudicative order.

The adjudicator made general observations about the standard approach to evaluating evidence on a balance of probabilities and about the contractual nature of community scheme rules. The order also noted the respondent’s apparent unwillingness to pay the outstanding levies, but that was not necessary to the core legal finding. Some remarks regarding the removal of legal charges from the account if there was no court order appear to be explanatory commentary derived from the cited case law rather than essential to the dispositive order.

The decision illustrates the CSOS’s role in enforcing levy obligations within community schemes and confirms that a body corporate may obtain payment orders for unpaid levies under section 39(1)(e) of the CSOS Act on documentary evidence where the owner does not dispute liability. It is also significant for reaffirming that, although levies and interest may be recovered, legal costs cannot simply be added to an owner’s account unless they are agreed, taxed, or authorised by a competent order, in line with South African authority.