Trustees of Flamingo Court Body Corporate v G Muthusami

The applicants, the Trustees of Flamingo Court Body Corporate, acting for a sectional title scheme situated at Canary Crescent, Tongaat, Durban, KwaZulu-Natal, brought an application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) against G Muthusami, the registered owner of Flat C2 Door 32 in the scheme. The applicants sought relief under section 39(1)(e) of the CSOS Act for payment of outstanding levies allegedly owed by the respondent in the amount of R35 891.60. The applicants' managing agent stated that internal remedies to recover the arrears had been exhausted. The respondent filed no submissions. During adjudication, the adjudicator requested further documents from the applicants on two occasions under section 51(1)(a)(i), including a trustees' resolution determining the interest rate on arrears, a debt collector's certificate, the scheme's conduct rules, and a detailed statement of account from when the respondent first fell into arrears. The applicants failed to provide these documents.

• Whether the applicants had proved, on a balance of probabilities, that the respondent was liable for the claimed arrear levies.
• Whether an adjudicator under the CSOS Act may dismiss an application where the applicant fails to comply with requests for further information or documents made under section 51.
• Whether sufficient documentary evidence had been placed before the adjudicator to justify an order under section 39(1)(e) for payment of contributions or other amounts.

The application was dismissed in terms of section 53(1)(b) of the CSOS Act. No order as to costs was made.

In a CSOS application for payment of arrear levies under section 39(1)(e), the applicant bears the burden of proving the claim on a balance of probabilities. Where the adjudicator lawfully requires further information or documentation under section 51 of the CSOS Act and the applicant fails to comply, the adjudicator is entitled under section 53(1)(b) to dismiss the application.

The adjudicator made general observations that only relevant evidence should be considered and that proof in such matters is determined according to a preponderance of probabilities, with reliability and credibility of filed statements also relevant. These comments were explanatory of the evidential approach rather than independent binding rulings.

This decision illustrates the procedural and evidential demands in CSOS levy-recovery disputes. Even where a respondent does not oppose the matter, an applicant must still prove its claim with adequate documentation. The case underscores the adjudicator's investigative powers under section 51 of the CSOS Act and confirms that non-compliance with document requests can be fatal to an application. It is significant for community schemes because it shows that levy claims cannot succeed on bare assertion alone; proper records, rules, resolutions, and account statements are essential.