ADJUDICATION ORDER IN TERMS OF SECTION 54

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

Ref: CSOS 1388/KZN/23

IN THE MATTER BETWEEN

CASA GRANDE BODY CORPORATE APPLICANT

and

W PARBOO RESPONDENT

ADJUDICATION ORDER

EXECUTIVE SUMMARY

• Relief applied for in terms of the CSOS Act:

Section 39(1)(e) In respect of financial issues— (e) an order for the payment or re-
payment of a contribution or any other amount.

• Date Adjudication conducted:

2 AUGUST 2023

• Name of the Adjudicator:

AJ ANDREAS

• Order:
 The relief sought in terms of section 39(1) of the CSOS Act is upheld.

The Respondent is held to be indebted to the Applicant in the amount of R40 572.92
in respect of arrear levies.

The Respondent is ordered to pay R5000.00 monthly from the end of September 2023,
until the outstanding levies is settled in full.

No order as to costs.

INTRODUCTION

1. The Applicant is the CASA GRANDE BODY CORPORATE, a community scheme as

defined in the Community Schemes Ombud Service Act 9 of 2011 (the CSOS Act),
and to which it would be convenient to refer to as the “Body Corporate”. The mandate
to represent is on file.

2. The Respondent is W PARBOO the registered owner of unit number 17, 101-110
Scott Street, Lennoxton, Newcastle, Kwazulu Natal Province.

3. A letter requesting final submissions was sent to the parties on the 5th of July 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 Community Schemes Ombud Service
(CSOS) by way of email.

5. The application seeking relief in terms of section 39 of the CSOS Act, is in respect of-
Section 39(1)(e): In respect of financial issues.

6. This matter is adjudicated in terms of the CSOS Act and Practice Directive on Dispute
Resolution, 2019 as amended and more specifically the amended Practice Directive
dated 23 June 2020 which provides under paragraph 8.2 “Adjudications will be
conducted on the papers filed by the parties and any further written submissions,
documents and information as requested by the appointed Adjudicator”. The parties

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 were requested to make written submissions. The adjudication was conducted on the
2nd of August 2023 and an order is now determined.

PRELIMINARY ISSUES

7. No preliminary issues were raised.

RELEVANT STATUTORY PROVISIONS

8. 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”.

9. 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”.

10. 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”.

11. Section 47 provides-

“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”.

12. 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”.

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13. In terms of Section 50-
“The adjudicator must investigate an application to decide whether it would be appropriate to make an
order.”

14. 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”.

15. Accordingly, a certificate of non-resolution was issued in terms of Section 48(1) of the
CSOS Act. The Ombud referred the application together with any submissions and
responses thereto to an adjudicator on the 21st of June 2023.

SUMMARY OF RELEVANT EVIDENCE

Applicant’s Submissions

16. The Applicant submitted that the Respondent is indebted to the Applicant in the
amount of R40 572.92 in respect of arrear levies.

17. According to the levy statement submitted by the Applicant, the Respondent’s monthly
levy is in the amount of R1183.75, which excludes other ancillary charges.

18. A statement of account relating to the Respondent’s indebtedness to the Applicant

was submitted as proof thereof.

19. The Applicant submitted that they are requesting full payment of the outstanding levies
by the Respondent.

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20. According to the Applicant the Respondent had received all notices of levy increases
over the years, which included monthly statements and minutes of the AGM.

21. The Applicant further submitted that the Respondent enjoys all benefits that the levy
covers such as municipality services, maintenance, garden services, insurance and
security, but has failed to contribute to these expenses since October 2020.

22. The Applicant submitted that in 2022 a letter of demand was sent to the Respondent
by Cecelia Spies Attorneys, which was ignored by the Respondent, the matter was not
pursued due to the costs considerations.

23. According to the Applicant the Respondent made verbal promises to make some kind
of contribution, but has failed to do so.

Relief sought by the Applicant:

24. Applicant requests an order that the adjudicator finds that the Respondent is indebted
to the Applicant in the amount of R40 572.92.

Respondents’ Submissions

FG PARBOO (SPOUSE)

25. The Respondent’s spouse in a sworn affidavit dated the 10th of July 2023, highlighted
the following, “that my husband W Parboo has been unemployed since 2018. He has
no active source of income since 2018. I have been bearing the financial burden in my
household including the upbringing of our two sons, since my husband’s
unemployment. He is currently incarcerated at Newcastle prison. He is unable to
produce an affidavit or response to make representations with regard to case no.
CSOS1388/KZN/23, as he is imprisoned. I am responding on his behalf,
communication between my husband and I has broken down, but due to my respect
for the law and my sincere wish for this matter to come to an end”.

Relief sought by the Respondents.

26. None submitted.

EVALUATION & FINDING

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27. I have perused the parties’ written submissions.

28. In evaluating the evidence and information submitted, the probabilities of the case
together with the reliability and credibility of the witnesses must be considered.

29. The general rule is that only evidence, which is relevant, should be considered.
Relevance is determined with reference to the issues in dispute. The degree or extent
of proof required is a balance of probabilities. This means that once all the evidence
has been tendered, it must be weighed up and determined whether the Applicant’s
version is probable. It involves findings of facts based on an assessment of credibility
and probabilities.

30. The relief sought by the Applicant is for an order that the Respondent is indebted to
the Applicant in the amount of R40 572.92, for arrear levies.

31. It is important to note when dealing with members of a scheme’s obligation to pay
levies that when levies become due and payable, that members are obliged to make
payment of levies in full at all times.

32. Failure by a member of a scheme to pay their monthly levies when due, constitutes a
violation of the quasi-contractual relationship between the member and their scheme.

33. The Adjudicator is cognisant of the fact that the Respondent is currently incarcerated,
but that does not absolve the Respondent from his or any other member’s obligation
to make payment of their levies to the Applicant when such levies become due and
payable.

34. Section 2 of the of the Sectional Titles Scheme Management Act 8 of 2011 states as
follows: “with effect from any date upon which a person other than a developer
becomes an owner of a unit in a scheme, there shall be deemed to have been
established for that scheme a body corporate of which the developer and such person
are members, and any person who thereafter becomes an owner of a unit in that
scheme, is a member of that body corporate.”

35. In law therefore every owner in a sectional title scheme, such as the Respondent, is a
member of the body corporate.

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36. Readers are referred to the North Gauteng High Court matter of the Body Corporate
of Central Park v Mosa, where Judge Kathree-Setiloane held that the wording of
section 3(2) of the STSMA eliminates any ambiguity in its meaning as it specifies that
“liability …accrues from the passing of a resolution to that effect by the trustees and
may be recovered”. Properly construed this means that liability for normal
levies/contributions accrues from date of the passing of a resolution to that effect by
the trustees and can be recovered by the body corporate. In other words, the body
corporate’s right to claim payment of contributions/normal levies vests on passing of
a resolution by the trustees and becomes due and payable in each consecutive month
thereafter”.

37. Section 3 of the STSMA provides as follows:

3(1) A body corporate must perform the functions by or entrusted to it under this Act
or the rules, and such functions include-
(a) To establish and maintain an administrative fund which is reasonably sufficient to cover the
estimated and annual operating costs, (i) For the repair, maintenance …. of the common
property, (ii) For the payment of rates and taxes and other local municipality charges for the
supply of gas, water…, (iii) For the payment of any insurance premium., (iii) For the discharge
of any duty or the fulfilment of any other obligation of the body corporate, (b) To establish and
maintain a reserve fund, (c) To require the owners wherever necessary, to make such
contributions to such funds…”.

38. In such matters it is common to order the Respondent to settle the outstanding levies
within a matter of weeks, so as not to prejudice the Applicant.

39. Without condoning the Respondent’s non-payment as has been submitted by the
Applicant, these circumstances (the incarceration of the Respondent) persuade me
that it is in the interests of justice and fairness to grant the Respondent additional time
to settle the arrear levies.

40. It is the Adjudicator’s finding that the Respondent is indebted to the Applicant in the
amount of R40 572.92, in respect of arrear levies.

COSTS

41. There is no order as to costs.

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 ADJUDICATION ORDER

42. In the circumstances, the following order is made:

(a) The Respondent is held to be indebted to the Applicant in the amount of R40 572.92
in respect of arrear levies.

(b) The Respondent is ordered to pay R5000.00 monthly from the end of September 2023,
until the outstanding levies is settled in full.

(c) No interest shall accrue to the outstanding amount within this period allowed for the
payment.

(d) The above amount includes the Respondent’s monthly levy.

(e) Should the Respondent fail to pay any instalment due to the Applicant on the due date,
the full outstanding balance of R40 572.92 shall immediately become due and
payable, and the Respondent must also pay the Applicant the applicable interest on
the full outstanding balance of R40 572.92 calculated from the date that the full
outstanding balance becomes due and payable to date of payment.

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 ON THIS 7TH DAY OF AUGUST 2023.

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AJ ANDREAS
ADJUDICATOR