Trustees of Naos Body Corporate v Mkhwanazi Wendy

The applicant, the Trustees of Naos Body Corporate, is the duly constituted body corporate of a sectional title scheme at S Jampanje Street, Wilgeheuwel, Roodepoort. The respondent, identified in the order as Wendy Mkhwanazi, is the owner of Unit 23 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 relief under section 39(1)(e) for payment of arrear levies or other amounts owing. The application was lodged on 29 June 2023. The body corporate attached the requisite trustee resolution authorising the application and, according to the adjudicator, complied with the internal dispute resolution requirements. The applicant alleged that as at 1 July 2023 the respondent was in arrears in the amount of R57 206.93. Before instituting the matter, the applicant had made a settlement proposal on 24 January 2023 offering to write off 50% of the interest if payment was made within 30 days, but no response was received. Conciliation failed, whereafter the matter was referred to adjudication. The respondent did not file a response despite a section 43 notice.

• Whether the body corporate had properly authorised and instituted the CSOS application in compliance with the CSOS Act, STSMA regulations, and practice directives.
• Whether the adjudicator could determine the matter on an uncontested paper record where the respondent failed to respond.
• Whether the applicant had established, on a balance of probabilities, its entitlement under section 39(1)(e) of the CSOS Act to an order compelling payment of the arrear amount claimed.
• Whether the respondent, as owner in the sectional title scheme, was liable to pay levies in accordance with the scheme's conduct rules and the statutory framework governing community schemes.

The application succeeded. The respondent was ordered to pay the applicant R57 206.93 within 6 months of the award. The first payment was to be made on 1 January 2024 in the amount of R9 534.50, followed by equal instalments on the first day of every subsequent month. If the respondent defaulted on any payment, the full outstanding amount of R57 206.93 would become payable within 30 days from the date of first default. No order as to costs was made.

A duly authorised body corporate that proves, on a balance of probabilities, that a unit owner is in arrears with levies or other contributions may obtain a payment order under section 39(1)(e) of the CSOS Act through CSOS. Where the respondent fails to answer the application, the adjudicator may determine the matter on the undisputed papers, provided procedural requirements have been met and the claim is supported by the evidence. Owners in community schemes are bound by the scheme's rules and are liable for levies payable in accordance with those rules.

The adjudicator made broader observations, supported by case law, that CSOS is intended to be the primary forum for community-scheme disputes and that courts may decline to hear such matters as a forum of first instance absent exceptional circumstances. The adjudicator also referred to CSOS circular guidance on audited financials, voting rights, access restrictions for non-payment of levies, and recovery of dispute-resolution costs. These remarks were not essential to the determination of the respondent's liability for the arrears claimed.

This adjudication illustrates the role of the Community Schemes Ombud Service as the primary statutory forum for resolving levy disputes in community schemes. It confirms that a body corporate may obtain relief under section 39(1)(e) of the CSOS Act for unpaid levies or related amounts once it has properly authorised proceedings and complied with procedural requirements. The matter is also significant as a practical example of CSOS adjudication proceeding on an uncontested paper record where an owner fails to respond, and of the enforceability of scheme rules and levy obligations in sectional title governance.