CSOS1043/WC/23

ADJUDICATION ORDER IN TERMS OF SECTION 54

OF THE COMMUNITY SCHEMES OMBUD SERVICE ACT NO.9 OF 2011

Ref: CSOS1043/WC/23

In the matter between:

GROVE BODY CORPORATE APPLICANT

and

NASIR HENDRICKS RESPONDENT

ADJUDICATION ORDER

EXECUTIVE SUMMARY

 Relief applied for in terms of the CSOS Act:

The Applicant requests the following relief:

1. In terms of section 39(1)(e)

(1) In respect of financial issues—
(e) an order for the payment or re-payment of a contribution or any
other amount.

Full settlement of the special levy and all outstanding levies due to the
Applicant by the Respondent as at September 2023, as well as any
interest that has accrued in respect of the outstanding account.
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 Date Adjudication conducted:
10 September 2023

 Name of the Adjudicator:

Karen Bleijs

 Order:
Application Upheld

INTRODUCTION

1. The Applicant is cited as the “TRUSTEES OF OLIVE

GROVE BODY CORPORATE” (“the Applicant”), a sectional scheme as
contemplated in section 2 of the Sectional Titles Schemes Management Act 8
of 2011 (the STSMA), and a community scheme defined as such in terms of
the Community Schemes Ombud Services Act 9 of 2011 (“CSOS Act”).

2. The Respondent is NASIR HENDRICKS (“the Respondent”), who is the owner

of unit number 1 at the Applicant scheme, which is situated at Klip Road, Lotus
River, Cape Town, Western Cape.

3. A letter under cover of an e-mail was sent to the parties requesting them to
furnish CSOS with written submissions regarding the application by the 2 nd of
June 2023.

4. This is an application for dispute resolution in terms of section 38 of the

Community Schemes Ombud Service Act 9 of 2011 (the CSOS Act). The
application was made in the prescribed form and lodged with the CSOS by way
of e-mail.

5. The application seeking relief is in terms of section 39 of the CSOS Act.

6. This matter is adjudicated in terms of the CSOS Act; Practice Directive on

Dispute Resolution, 2019 (as amended) and the amended Practice Directive
dated 23 June 2020.

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7. The matter was referred to me on the 5th of September 2023, and the
adjudication was conducted on the 10th of September 2023.

An order is now determined.

PRELIMINARY ISSUES

8. No preliminary issues were raised / (legal representation, points in limine)

RELEVANT STATUTORY PROVISIONS

9. Section 1 of the CSOS Act defines-

 "Community scheme" as “any scheme or arrangement in terms of which there is

shared use of and responsibility for parts of land and buildings, including but not limited
to a sectional titles development scheme, a share block company, a home or property
owner's association, however constituted, established to administer a property
development, a housing scheme for retired persons, and a housing cooperative and
"scheme" has the same meaning”.

 "dispute" as “a dispute in regard to the administration of a community scheme

between persons who have a material interest in that scheme, of which one of the
parties is the association, occupier or owner, acting individually or jointly”.

10. Section 38 of the CSOS Act provides-

“Any person may make an application if such person is a party to or affected materially
by a dispute”.

11. Section 45(1) provides-

“The Ombud has a discretion to grant or deny permission to amend the application or
to grant permission subject to specified conditions at any time before the Ombud refers
the application to an adjudicator”.

12. Section 47 provides-

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“On acceptance of an application and after receipt of any submissions from affected
persons or responses from the applicant, if the Ombud considers that there is a
reasonable prospect of a negotiated settlement of the disputes set out in the
application, the Ombud must refer the matter to conciliation”.

13. Section 48 (1) provides-

“If the conciliation contemplated in section 47 fails, the Ombud must refer the
application together with any submissions and responses thereto to an adjudicator”.

14. Section 50 provides-

“The adjudicator must investigate an application to decide whether it would be
appropriate to make an order.”

15. Section 51 provides for the investigative powers of the Adjudicator-

(1) When considering the application, the adjudicator may-
(a) require the applicant, managing agent or relevant person-
(i) to give to the adjudicator further information or documentation;
(ii) to give information in the form of an affidavit or statement; or
(iii) subject to reasonable notice being given of the time and place, to come
to the office of the adjudicator for an interview;
(b) invite persons, whom the adjudicator considers able to assist in the resolution of
issues raised in the application, to make written submissions to the adjudicator
within a specified time; and
(c) enter and inspect-
(i) an association asset, record or other document;
(ii) any private area; and
(iii) any common area, including a common area subject to an exclusive use
Arrangement”.

16. The Respondent failed to provide a response to the CSOS notice in terms of
section 43 of the CSOS Act, and consequently the matter was referred to
adjudication in terms of section 48 of the Act.

SUMMARY OF RELEVANT EVIDENCE

Applicant’s Submissions

17. The Applicant submitted the following:

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17.1. The Respondent has failed to pay their special levy which was due on
1 October 2022, as at the date that this adjudication was instituted, being
the 20th of April 2023 however if required, unit-owners were given grace
to pay the special levy in four equal installments from 1 October 2022 to
1 January 2023.

17.2. The Applicant drew my attention to the fact that a dispute had been
lodged with the CSOS under Reference number REF
CSOS4801/WC/22 to have this special levy rescinded. However, the
CSOS upheld the special levy deeming that it is necessary and also
essential as the remedial work required on the building is urgent.

17.3. Numerous reminders have been sent to the Respondent to pay his
special levy, as well as normal levies in full and up to date every month.

17.4. Interest has accrued on the amount outstanding.

17.5. The Respondent’s levy statement up to an including September 2023

was presented in evidence by the Applicant.

Relief sought by the Applicant:

18. The following relief is sought by the Applicant:

18.1. In terms of section 39(1)(e)

(1) In respect of financial issues—
(e) an order for the payment or re-payment of a contribution or any
other amount.

Full settlement of the special levy and all outstanding levies due to the
Applicant by the Respondent as at September 2023, as well as any
interest that has accrued in respect of the outstanding account.

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Respondents’ Submissions

19. The only correspondence received from the Respondent was an email asking
what the dispute was about, and when the CSOS replied to him that it was
regarding his outstanding special levy he failed to respond but paid an amount
of R12 000 on the 29th of May 2023.

Relief sought by the Respondent

20. No relief was requested by the Respondent.

EVALUATION & FINDING

21. I have perused both parties submissions.

22. In evaluating the evidence and information submitted, the probabilities of the
case together with the reliability and credibility of the filed witness statements
(If any) must be considered.

23. The general rule is that only evidence, which is relevant, should be considered.

24. Relevance is determined with reference to the issues in dispute.

25. The standard/ degree or extent of the proof that is required in a civil matter, as
opposed to a criminal matter, is known in law as a ‘preponderance of
probabilities’.

26. This means that once all the evidence has been tendered, it must be weighed
up by the Adjudicator in order to determine whether the Applicant has
discharged the burden of proving its case on a balance of probabilities.

27. It involves findings of facts based on an assessment of credibility and

probabilities.

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28. It is relevant to note that the Respondent has neither disputed the amount
outstanding to the Applicant in respect of the special levy charged, nor the
manner in which it has been calculated, nor the fact that it is due and owing to
the Applicant. In fact, he paid the special levy owing, albeit it that he paid it 6
months late, on the 29th of May 2023.

29. Consequently, it is unnecessary for me to pronounce on the lawfulness of the

special levy imposed by the Applicant, since it is common cause.

However, for the sake of completeness, I will refer to the relevant portions of
the STSMA and to legal precedent as regards Special Levies hereunder.

30. Section 3(2) of the aforesaid Act further provides as follows:

3. Functions of bodies corporate

“3 (2) Liability for contributions levied under any provision of subsection (1), save for special
contributions contemplated by subsection (4), accrues from the passing of a resolution
to that effect by the trustees of the body corporate, and may be recovered by the body
corporate by an application to an ombud from the persons who were owners of units
at the time when such resolution was passed: Provided that upon the change of ownership
of a unit, the successor in title becomes liable for the pro rata payment of such contributions
from the date of change of such ownership.
(3)Any special contribution becomes due on the passing of a resolution in this regard
by the trustees of the body corporate levying such contribution and may be recovered
by the body corporate by an application to an ombud, from the persons who were owners
of units at the time when such resolution was passed: Provided that upon the change of
ownership of a unit, the successor in title becomes liable for the pro rata payment of such
contributions from the date of change of such ownership.
(4) ‘‘Special contribution’’, for the purposes of this section, means any contribution
levied under subsection (1) other than contributions which arise from the approval of
the estimate of income and expenditure at an annual general meeting of a body
corporate, determined to be a contribution to be levied upon the owners during the
current financial year.”
My Emphasis

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31. Unit-owners who default on their levy or special levy payments, or who do not
pay such contributions in full and up to date every month, are effectively being
subsidised by other members of the body corporate who pay their levies and
ancillary contributions conscientiously every month.

32. The body corporate cannot perform its functions and duties in the absence of
funds from unit owners.

In the above regard I quote from the 2022 decision of Zikalala v Body
Corporate of Selma Court and Another 1

“ [20] Management rule 25 expressly grants to the body corporate the power to impose levies
and contributions from owners. Where an owner fails in the obligation to pay such amounts, the
body corporate is empowered to take action to recover such amounts, including interest and
costs.”

33. As regards the charging of interest by the Applicant:

In the matter of Body Corporate of Nautica v Mispha CC2 , the learned

judge stated the following:

“Interest charges on arrear amounts are by no stretch of imagination meant to be penalties

against the defaulter. They are there to mitigate the inevitable depreciation or decline in value
of the currency, which is ordinarily occasioned by inflation. The interest charged on those
arrear amounts is thus, intended to protect the equity of the original debt amount. In the case
of Davehill (Pty) LTD Community Development Board 1988 (1) SA 290, on page 297 G-H, the
Court succinctly states:

“The liability to pay interest arises from considerations of equity, and was designed to
compensate a person . . . for his loss and fruits of his property . . . up until the time the
compensation was made . . .”

1
(AR255/2020) [2021] ZAKZPHC 81; 2022 (2) SA 305 (KNP) (23 September 2021)

2
(16990/2010) [2021] ZAWCHC 259; [2022] 1 All SA 399 (WCC) (7 December 2021)
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[81] Our courts have stated in the past that interest and compound interests are the
lifeblood of finance in modern times.”

34. Later on in the same judgment, after referring to the Sectional Titles Act of
1986 (which preceded the coming into operation of the STSMA in 2016), the
Judge states:

“[92] Similarly, Rule 21 (3) (c), contained of Annexure 1 to the Regulations to Sectional
Management Act, reads as follows:

“The body corporate may, on the authority of a written trustee resolution charge interest on
any overdue amount payable by a member to the body corporate; provided that the interest
rate must not exceed the maximum rate of interest payable per annum under the National
Credit Act (2005) Act No 34 of 2005), compounded monthly in arrears.”

35. The body corporate cannot perform its functions and duties in the absence of
funds from unit owners.

36. The purpose of this order is to bring closure to the case brought by the Applicant
to the CSOS, whilst considering the rights, as well as the duties of the
Respondent.

3
37. In the matter of Body Corporate of Kleber v Sehube and Another , which
dealt specifically with the payment of special levies, the Judge stated the
following:

“ . . . Section 3 (2) creates a liability. A ‘liability’ means, unequivocally, an obligation to perform

the prescribed deed; in this case, to pay up. Both subsections should be read as meaning that
the date of the resolution triggers the duty to pay. There is no cogent rationale that might
promote the objects of the statute which could support the proposition that a distinction must
exist between accrue and due and payable in this context.”

38. I am of the considered opinion that based on the facts of the matter, as well as
the evidence provided, the Applicant has proved its case on a preponderance
of probabilities and that I should find in its favour. In addition, as at the 10th of

3
(2021/ A3094) [2021] ZAGPJHC 653 (9 November 2021)

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September, the Respondent’s account is in arrears in the amount of R 5 518.15
(Five Thousand Five Hundred and Eighteen Rand and Fifteen Cents).

39. The Respondent ought to have paid the special levy in full on or before the 1 st
of January 2023.

If he required more time to pay the special levy, he should have negotiated with
the Applicant’s Trustees in order to pay the special levy off over a further period
of time.

It is evident that the Applicant’s application to CSOS galvanised the

Respondent into action and induced him to pay the special levy, whereas he
ought to have paid the special levy to the Applicant by the beginning of January
2023.

40. It is also pertinent to note that the Respondent has fallen into arrears in respect
of his normal levy and interest owing to the Applicant.

COSTS

41. There is no order as to costs.

ADJUDICATION ORDER

42 In the circumstances, the following order is made:

I find in favour of the Applicant.

The Respondent is ordered and compelled to pay the Applicant the amount of
R5 518.15 (Five Thousand Five Hundred and Eighteen Rand and Fifteen Cents)
outstanding to the Applicant in respect of levies and interest as at the date of this
adjudication order, which includes interest, on or before the 1st of October
2023.

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The aforesaid order does not affect the ordinary monthly levy and ancillary
amounts due to be paid to the Applicant by the Respondent on the 1st of October
2023.

RIGHT OF APPEAL

43. Section 57 of the CSOS Act, provides for the right of appeal-
“ (1) An applicant, the association or any affected person who is dissatisfied by an adjudicator's
order, may appeal to the High Court, but only on a question of law.
(2) An appeal against an order must be lodged within 30 days after the date of delivery of the order
of the adjudicator.
(3) A person who appeals against an order, may also apply to the High Court to stay the operation
of the order appealed against to secure the effectiveness of the appeal.”

DATED AT CENTURION ON THE 10 SEPTEMBER 2023.

_____________________
KAREN BLEIJS
ADJUDICATOR

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