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ADJUDICATION ORDER IN TERMS OF SECTION 54

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

Ret: CSOS 6061GP123

IN THE MATTER BETWEEN

THE TRUSTEES OF VILLA NEWLYN

BODY CORPORATE APPLICANT

and

S P MUDYANADZO RESPONDENT

ADJUDICATION ORDER

EXECUTIVE SUMMARY

• Relfef anplied for in terms of the CSOS Act:

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.

• Date Adjudication conducted:

03 JULY 2023

• Name of the Adiudicator:

Menzi Simelane
 CSOS 6061GP!23

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

The Respondent is hereby directed to pay the Applicant an amount of R 27

149. 31
(twenty seven thousand one hundred and forty nine rand and thirty one cents)
within
thirty (30) days from the date of this order.

No order as to costs.

INTRODUCTION

1. The AppNcant is THE TRUSTEES OF VILLA NEWLYN BODY CORPORAT

E, a
community scheme as defined in the Community Schemes Ombud Service
Act 9 of
2011 (the CSOS Act). For ease of convenience, I will refer to it as the ‘Villa
Newly
BC”. It is located on 8 Forte Street, Georgetown, Germiston, Gauteng.

2. The Respondent is S P MUDYANADZO the owner of unit 4 in Villa Newly

n. His
address is number 8 Forte Street, Georgetown, Germiston, Gauteng.

3. The Applicant is assisted in bringing this application by Mawer Delpor

t, a duly
authorised managing agent. In terms of a resolution of the trustees date 12
July 2022.

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

unity
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.

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 CSOS 6061GP)23

5. On 19 May 2023 the CSOS issued a section 43 notice to the Respondent informing
him of the application and inviting a written response by 26 May 2023. No response
was received from the Respondent and the application was referred directly for
adjudication. A notice in terms of section 48 was then issued. The parties were invited
to make final written submissions, if any, by 31 May 2023.

6. This application seeking relief in terms of section 39 of the CSOS Act, is in respect of
financial issues.

7. 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
adjudication was conducted on the 03 July 2023 and an order is now determined.

PRELIMINARY ISSUES

8. No preliminary issues were raised.

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”.
 CSOS 6061GP123

“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 that -

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

11. Section 45(1) provides that -

“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 that -

“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 that -

“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.ln terms of Section 50-

“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 —

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 CSOS 6061GP123

(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
(Ui) 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;
(H) any private area; and
(Hi) any common area, including a common area subject to an exclusive use
arrangement”.

SUMMARY OF RELEVANT EVIDENCE

Applicant’s Submissions

16.The Applicant submits that the Respondent is in arrears with regard to levies and has
a history of being in arrears, so much. So the applicant filed an application with CSOS
in the past and an order was issued against the Respondent. He is in arrears again.
The applicant sent reminders and notices to the Respondent without success. The
Applicant further submits that the levy payments are required in order to enable Villa
Newlyn BC to pay its service providers.

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 CSOS 606!0P123

Relief sought by the Applicant:

1 7.The relief sought by the Applicant is for an order directing the Respondent to pay the
outstanding arrear levies.

Submission by the Respondent

18.The Respondent did not file any submissions.

Relief sought by the Respondent.

19.None is indicated on the file provided.

EVALUATION & FINDING

20.1 have perused the written submissions by the Applicant. In evaluating the evidence
and information submitted, the probabilities of the case together with the reliability and
credibility of the witnesses must be considered.

21 .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 and determined whether the Apphcant’s
version is probable. It involves findings of facts based on an assessment of credibility
and probabilities.

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 CSOS 6061GP123

22.The issue to be decided is whether the Applicant is entitled to an order for the payment
of the arrear levies as claimed in the application.

23.There is no dispute that the Respondent is in arrears with the levies. The Applicant
has sent the Respondent the monthly levy statement and reminder notices but the
Respondent remains in arrears. Having had an opportunity to make submissions and
provide an explanation for the failure to pay the levies, the Respondent has not taken
the opportunity. Accordingly, the version of the Applicant is the only one that has been
provided for consideration. In addition, the Applicant has taken measures to collect
the arrear levies by following the procedure prescribed in Practice Management Rule
25. In this respect, the Applicant took a resolution on 17 April 2023 authorising the
managing agent to start the process of collecting outstanding levies.

24.The legal position regarding the responsibilities and functions of the Applicant are
not disputed. Section 3 of the Sectional Title Scheme Management Act, 2011 (Act No.
8 of 2011) requires the Applicant to carry out those functions relating to the proper
management of the scheme including regulating and enforcing its rules. The relevant
part provides as follows;

3 (1) A body corporate must perform the functions entrusted to it by or

under this Act or the rules, and such function include —

(a) to establish and maintain an administrative fund which is

reasonably sufficient to cover the estimated annual operating
costs —

(i) For the repair, maintenance, management and

administration of the common property (including
reasonable provision for future maintenance and repairs);

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 CSOS 606/GP/23

(ii) For the payment of rates and taxes and other local
municipality charges for the supply of electricity, gas,
water, fuel and sanitary or other services to the building
or land;

25.In addition to the above, a body corporate is cloaked with certain powers given to it in
terms of section 4 of the STSMA, and the relevant parts of which provide as follows;

(4) The body corporate may exercise the powers conferred upon it by or
under this Act or the rules, and such powers include the power -

(a) to appoint such agents and employees as the body corporate may
consider fit;

(i) to do all things necessary for the enforcement of the rules and for
the management and administration of the common property.

26.lt is common cause therefore that the Applicant is legally entitled to take the necessary
measures to give effect to the STSMA and the rules of the scheme. The above
provisions indicate the relationship between the Applicant and the Respondent and
how it is regulated. In this case, the Applicant seeks to ensure that the obligations of
the Respondents to the scheme are honoured by the payment of the arrears. I have
noted that the Conduct Rules of the Applicant do not make provision for levies. This
is not unusual. It also does not excuse the respondent from the responsibility to pay
levies. The obligation arose when the respondent bought into the scheme and became
a member of the body corporate.

27.lt is trite that in law, responsibility must be placed where it lies. In other words, any
blame for any act must be apportioned to the person responsible for it. The
Respondent is required to contribute to the upkeep of the scheme by paying monthly
levies as required by the rules of the scheme. This obligation applies to all the owners.
Failure to make such payments, could result in the scheme not being financially viable

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 CSOS 6061GP123

and may fail to make payments to the local authorities and service providers for the
services rendered to it. Therefore any non-payment poses a serious risk to the
scheme. This has also been confirmed by the courts. The Supreme Court of Appeals
(SCA) in Body Corporate of Marine Sands v Extra Dimension 121 (Pty) Ltd and
Another 1082/2018 held as follows;

“The liability of levies is an incident of ownership of a sectional title unit

and is a burden that attaches to such ownership. An increase in that levy
burden is accordingly a diminution of rights of ownership.”

28. In light of the above. I am satisfied that the Applicant has made out a case for the claim
and has demonstrated that the arrears are due and payable. Accordingly, the
Applicant’s complaint against the Respondent is upheld.

COSTS

29.There is no order as to costs.

ADJUDICATION ORDER

30.ln the circumstances, the following order is made:

(a) The relief sought by the Applicant against the Respondent is upheld.

(b) The Respondent is hereby directed to pay the Applicant an amount of R

27 149.31 (twenty seven thousand one hundred and forty nine rand and thirty
one cents) within thirty (30) days of this order.

(c) No order is made as to costs.

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 CSOS 6061GP123

RIGHT OF APPEAL

31. 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

2023

—C--
MENZI SIMELANE
ADJUDICATOR

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