Trustees of Aguador Body Corporate v Asuelime Legend

The applicant, the Trustees of Aguador Body Corporate, is the duly constituted body corporate of a sectional title scheme. The respondent, Mr Legend Asuelime, is the owner of Unit 9 in the scheme. The body corporate brought an application to the Community Schemes Ombud Service (CSOS) under section 38 of the Community Schemes Ombud Service Act 9 of 2011 seeking financial relief under section 39(1)(e), namely payment of arrear amounts allegedly due by the respondent. The application was lodged on 10 July 2023. The applicant later filed the necessary trustee resolution authorising the application on 13 September 2023. Conciliation failed and the matter was referred to adjudication. The applicant alleged that as at 1 November 2023 the respondent was in arrears in the amount of R52 716.75. In addition to payment of the outstanding balance, the applicant also sought an order that the tenant pay rental income to the body corporate. The respondent did not file a response despite a section 43 notice. The adjudication accordingly proceeded on the papers and largely on undisputed facts.

• Whether the applicant body corporate had properly authorised and instituted the CSOS application in compliance with the CSOS Act, practice directives and STSM Regulations
• Whether the respondent, as owner of the unit, was liable to pay arrear contributions or other amounts to the body corporate under section 39(1)(e) of the CSOS Act
• Whether the adjudicator could grant relief directing payment of rental income to the applicant where there were insufficient supporting facts and the occupier/tenant had not been cited
• Whether, in the absence of a response from the respondent, the applicant had nevertheless made out a proper case on the papers for the relief claimed

The application succeeded in part. The prayer relating to rental income (prayer 22(b)) was dismissed. The applicant’s claim under section 39(1)(e) succeeded. The respondent was ordered to pay the applicant R52 716.75 within 6 months of the award. The first payment of R8 786.12 was due on 1 January 2024, followed by equal monthly instalments on the first day of each subsequent month. If the respondent defaulted on any instalment, the full outstanding amount of R52 716.75 became payable within 30 days of the first default. No order as to costs was made.

A body corporate that has properly authorised proceedings and complied with CSOS procedural requirements is entitled to an order under section 39(1)(e) of the CSOS Act for payment of arrear contributions or other amounts due by a unit owner, where the claim is established on a balance of probabilities. By contrast, relief not supported by pleaded facts, or relief effectively directed at an uncited occupier or tenant who has not been afforded a hearing, is misconceived and must be refused.

The adjudicator observed that a prayer for rental payable could potentially be accommodated under section 39(1)(f) of the CSOS Act if enabling facts were properly set out. The adjudicator also referred to CSOS circular guidance indicating that scheme rules cannot prevent members from voting or occupiers from accessing property due to non-payment of levies, and that certain costs-recovery rules would not be approved. These observations were ancillary to the actual determination.

The decision illustrates the operation of the CSOS adjudication framework in levy-recovery disputes involving sectional title schemes. It confirms that a body corporate may obtain relief under section 39(1)(e) for arrear contributions where it places sufficient evidence before the adjudicator and properly authorises the application. It also shows the limits of CSOS relief: even where a respondent defaults procedurally, the applicant must still make out a factual and legal case for each remedy sought, and relief cannot be granted against persons who have not been cited or heard. The ruling reinforces CSOS as the primary forum for community scheme disputes and reflects the contractual and statutory obligations of owners within such schemes.