Trustees of Zulwini Gardens Body Corporate v Mildred Gabisile Zulu

The applicant, the Trustees of Zulwini Gardens 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 for payment of arrear levies owed by the respondent, Mildred Gabisile Zulu, the registered owner of Unit 52 in the Zulwini Gardens sectional title scheme in Amanzimtoti, Durban. The body corporate, acting through its managing agent and pursuant to a trustees' resolution, alleged that since transfer of the unit into the respondent's name she had failed to pay levies and was in arrears for the period June 2022 to October 2022. Numerous reminders and letters of demand were sent, and the matter was handed to attorneys on 13 October 2022. The applicant initially claimed R12,050.57 based on a statement dated 27 October 2022. The respondent did not file any response or written submissions despite service of the CSOS notice. On examining the statement, the adjudicator found that it included a handover fee of R870.00 charged by attorneys. Because that fee had not been taxed, agreed to by the respondent, or authorised by an order, it could not lawfully be debited to the respondent's levy account. After deducting that fee, the adjudicator found the respondent liable for R11,180.57 in arrear levies and related lawful charges.

• Whether the respondent, as owner of a unit in the sectional title scheme, was liable to pay body corporate levies and contributions under the STSMA.
• Whether the applicant had established on a balance of probabilities that the respondent was in arrears and the amount lawfully due was recoverable under section 39(1)(e) of the CSOS Act.
• Whether the body corporate had complied with the statutory and prescribed management rule requirements for levying contributions, charging interest, and bringing the application.
• Whether the body corporate was entitled to include an attorneys' handover fee in the respondent's account absent taxation, agreement, or prior authorisation by judgment or order.

The application was granted in terms of section 39(1)(e) of the CSOS Act. The respondent was directed under section 54(4) of the CSOS Act to pay the applicant R11,180.57 in 12 equal instalments of R931.71 commencing on 1 February 2023 until the debt was paid in full and final settlement. No order as to costs was made.

An owner of a unit in a sectional title scheme becomes a member of the body corporate upon acquisition of ownership and is liable for contributions lawfully levied by the body corporate under the STSMA. Where the body corporate proves, on a balance of probabilities, that levies were properly raised and remain unpaid, CSOS may order payment under section 39(1)(e) of the CSOS Act. However, legal or handover fees may not be debited to the member's account unless they are taxed, agreed by the member, or authorised by a judgment or order, as required by PMR 25(4) and 25(5).

The adjudicator remarked that the respondent, by buying into a community scheme, committed herself to paying levies and should abide by that commitment. The order also reflected a practical indulgence by permitting payment of the debt in 12 monthly instalments, although the reasons do not develop this as a legal principle. No broader obiter discussion of law beyond the determination of levy liability and exclusion of the handover fee appears in the judgment.

This adjudication is significant in community schemes and sectional titles practice because it affirms that a body corporate may use the CSOS process to recover unpaid levies from an owner, and that an owner's membership obligations arise from ownership of a unit. It also illustrates an important limitation on recoverable amounts: a body corporate may not simply load attorneys' handover or collection fees onto an owner's levy account unless those costs are taxed, agreed, or otherwise authorised in accordance with the prescribed management rules. The decision therefore reinforces both the enforceability of levy obligations and the statutory safeguards against unauthorised charges in sectional title administration.