Trustees of Cherere Body Corporate v Mr VM Kunda

The applicant, the Trustees of Cherere Body Corporate, is the body corporate of a sectional title scheme in Equestria, Pretoria. The respondent, Mr VM Kunda, is the registered owner of unit 5 in the scheme. The 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) for payment of arrear levies and ancillary charges allegedly owed by the respondent. The applicant stated that despite notifications by text message and email, the respondent had failed to pay levies due and was in arrears in the amount of R45 458.19 as at 23 February 2024. The applicant also sought, failing payment, an order that the property be attached and sold in execution. The respondent did not dispute liability in principle, but explained that he had suffered a 60% loss of income for six months in 2022, experienced cash-flow difficulties linked to delayed SETA payments, and asked for until September 2024 to settle the arrears. The matter proceeded on the papers before the CSOS adjudicator.

• Whether the respondent was indebted to the applicant for arrear levies and ancillary charges in the amount claimed.
• Whether the applicant had proved the indebtedness on a balance of probabilities.
• Whether the CSOS adjudicator had jurisdiction under the CSOS Act to grant relief for sale in execution of the respondent's unit.
• What payment terms, if any, should be ordered in relation to the arrear levies.

The application succeeded in part. The adjudicator granted relief under section 39(1)(e) of the CSOS Act and declared that the respondent owed the applicant R45 458.19 in respect of levies and ancillary charges for unit 5 as at 23 February 2024. The respondent was ordered to pay this amount in 12 equal monthly instalments of R3 788.18, commencing on 1 April 2024, with the remaining instalments due on the first day of each succeeding month. The order did not affect the respondent's ongoing obligation to pay current monthly levies and ancillary charges. No interest would accrue during the instalment period, but on default the full outstanding amount would become immediately due and payable. The request for sale in execution of unit 5 was refused for want of jurisdiction. There was no order as to costs.

A body corporate is entitled to recover unpaid levies and ancillary charges from a unit owner through relief under section 39(1)(e) of the CSOS Act where the indebtedness is proved on a balance of probabilities. Because the body corporate has statutory obligations under the Sectional Titles Schemes Management Act to maintain administrative and reserve funds and require owner contributions, defaulting owners remain liable for levies necessary to enable the scheme to function. However, a CSOS adjudicator may exercise only powers conferred by the CSOS Act and therefore lacks jurisdiction to order sale in execution of a unit where such relief is not authorised by the Act.

The adjudicator observed that owners who default on levy payments are effectively subsidised by other members of the body corporate who pay conscientiously and that the scheme cannot perform its functions in the absence of levy income. The adjudicator also noted the general principles relating to relevance of evidence and proof on a balance of probabilities. These remarks were explanatory and contextual rather than independently dispositive.

This decision is significant in community schemes jurisprudence because it reaffirms that CSOS may grant payment orders for arrear levies under section 39(1)(e) of the CSOS Act, while also confirming the jurisdictional limits of CSOS adjudicators: they cannot order sale in execution where that relief is not authorised by the Act. The order also illustrates a pragmatic adjudicative approach in levy disputes, balancing enforcement of the body corporate's statutory right to collect levies with structured repayment terms for an owner in financial distress. It underscores the importance of levy contributions to the functioning of a body corporate under the STSMA.