ADJUDICATION ORDER IN TERMS OF SECTION 54

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

Ref: CSOS 1650/GP/23

In the matter between:

VILLA ALBA BODY CORPORATE Applicant

and

N P MBEWU Respondent

ADJUDICATION ORDER

EXECUTIVE SUMMARY

• Relief applied for in terms of the CSOS Act:

o Section 39(1)(e) - In respect of financial issues.

• Date Adjudication conducted: 28 November 2023.

• Name of the Adjudicator: K MABASO.

• Order:
o the Applicant's application for relief in terms of Section 39(1)(e) of the
CSOS Act, is refused;

o this order shall take effect immediately on the date on which it is served
on the parties electronically;

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o each party is to pay its own costs of these proceedings.

• Legislative Provisions: Section 39(1)(e) and Section 51(1)(a) of the CSOS Act1,
Section 3(1)(c) and 3(2) of the STSMA2, Management Rule 21(3)(c) of the
Management Rules ("MR")3.

• Date issued (signed): 30 November 2023.

• Issue or topic: ARREAR LEVIES.

• Date sent to parties: 30 November 2023.

• Enforcement Notice issued: YES.

INTRODUCTION

1 The Applicant is VILLA ALBA BODY CORPORATE, a legal person in terms of

the provisions of the Sectional Titles Schemes Management Act No. 8 of 2011
(“STSMA”) which is situated at Sullivan Street, Die Hoewes, Centurion,
Gauteng, represented by Kibo Property Services, the Managing Agent.

2 The Respondent is N P MBEWU, the owner of Unit 82, Villa Alba.

3 The community scheme is the Body Corporate of Villa Alba which is duly
constituted in terms of Section 2 of the Sectional Titles Schemes Management
Act 8 of 2011 ("the STSMA") for a sectional scheme known as Villa Alba.

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

Act. The application was made in the prescribed form and lodged with the
Community Schemes Ombud Service (CSOS) by way of email.

1
Community Schemes Ombud Act No. 9 of 2011
2
Sectional Titles Schemes Management Act No. 8 of 2011
3
Annexure 1 to the Sectional Titles Schemes Management Regulations, 2016
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5 The Applicant is seeking relief in terms of section 39 of the CSOS Act, is in

respect of:

39(1)(e) - In respect of financial issues –

an order for the payment or re-payment of a contribution or any other amount.

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 were requested to make written submissions. The adjudication was
conducted on 28 November 2023.

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”.

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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".

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

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(iii) any common area, including a common area subject to an

exclusive use arrangement".

15 In terms of Section 48 of the CSOS Act, read with Clause 21.5.7 of the Practice
Directive on Dispute Resolution, 2019 as amended, on 30 June 2023, the
Ombud referred the application for dispute resolution directly to adjudication as
the Respondent failed to respond.

SUMMARY OF RELEVANT EVIDENCE

Applicant’s Submissions

16 The Applicant submits that the Respondent has failed to pay his levies.

Relief sought by the Applicant:

17 The Applicant seeks the following relief:

17.1 an order in terms of Section 39(1)(e) for the payment of outstanding

levies; alternatively,

17.2 an order in terms of Section 39(1)(f), should there be a tenant;

17.3 payment of fees in terms of the Debt Collectors Act.

Applicant's Evidence

18 The Applicant submitted the following evidence:

18.1 a Trustees Resolution dated 7 June 2022 authorising the Managing

Agent to represent the Scheme in these proceedings;

18.2 a Levy Statement dated 11 May 2023 which evidences the following:

18.2.1 a balance brought forward of R21 380.43 as at 1 March 2023;

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18.2.2 a closing balance of R25 346.39 as at 3 May 2023;

18.2.3 the following additional debits have been passed on the account:

18.2.3.1 Arrear administration: debt collecting fees;

18.2.3.2 interest at 12% per annum;
18.2.3.3 Arrear administration debt collecting fees, SMS fees;
18.2.3.4 debt collecting email fees;

18.3 a Debt Collectors Certificate issues to Kibo Property Services (Pty) Ltd;

18.4 the Scheme's Conduct Rules.

Respondent's Submissions

19 None.

Relief sought by the Respondent

20 None.

Final Written Submissions

21 When invited to file written submissions, the Respondent submitted that she had
made an additional payment of R4 000.00 and had emailed to make a payment
arrangement.

EVALUATION & FINDING

22 In evaluating the evidence and information submitted, the probabilities of the

case together with the reliability and credibility of the witnesses must be
considered.

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23 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.

24 The application is brought by Kibo Property Services, the Managing Agent. The
said Managing Agent lodged a mandate duly signed by the Trustees giving them
authority to represent the Body Corporate in these proceedings. The Applicant
has thus proven its authority to institute these proceedings.

25 In terms of Section 3(1)(c) of the STSMA, one of the functions of Bodies

Corporate is to require owners to make contributions towards the operating
expenses and maintenance costs of schemes.

26 In terms of Section 3(2) of the STSMA, the liability for payment of contributions
levied may be recovered by Bodies Corporate from owners of units in the
scheme by application to the Ombud.

27 Management Rule 21(3)(c) provides that Bodies Corporate may:

"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;"

28 The Applicant has made out a case to prove that it is entitled to claim from the
Respondent in respect of contributions levied. The Respondent does not
oppose this application.

29 With regards to quantum, the Adjudicator sent an email to the Managing Agent
on 21 November 2023 requesting the Managing Agent / Applicant to provide
the following:

29.1 an updated statement;

29.2 authority to charge interest;
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29.3 authority to charge debt collection fees and costs.

30 In response, the Managing Agent advised that it was unable to obtain the
requested documents from the Trustees and therefore will withdraw the case.

31 As the Managing agent represents the Scheme, which is in turn represented by

the Trustees, it cannot withdraw the case mero motu without being authorized
to so by the Trustees.

32 The Applicant failed to prove the sum owed by the Respondent to it.
Accordingly, the application is refused.

ADJUDICATION ORDER

33 In the circumstances, the following order is made:

33.1 the Applicant's application for relief in terms of Section 39(1)(e) of the
CSOS Act, is refused;

33.2 this order shall take effect immediately on the date on which it is served
on the parties electronically;

33.3 each party is to pay its own costs of these proceedings.

RIGHT OF APPEAL

34 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.

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(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 SANDTON on this 30th day of NOVEMBER 2023

__________________
ADJUDICATOR
(K MABASO)

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