ADJUDICATION ORDER IN TERMS OF SECTION 54 OF THE COMMUNITY SCHEMES

OMBUD SERVICES ACT NO.9 OF 2011

Ref: CSOS2233/GP/23

IN THE MATTER BETWEEN

ALBERTSDAL LEOPARDS REST

HOME OWNER’S ASSOCIATION(HOA) APPLICANT

and

E M MALUKA RESPONDENT

________________________________________________________________________

ADJUDICATION ORDER

________________________________________________________________________

EXECUTIVE SUMMARY.
Relief applied 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 referred to Adjudication:

NOT PROVIDED

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 Ref: CSOS2233/GP/23

Date Adjudication conducted:

13 JULY 2023

Name of the Adjudicator:

ANTHONY TSHABALALA

Order:
The relief sought by the Applicant against the Respondent is upheld insofar as it relates to
prayers, with the conditions set out in this order.

The Applicant seeks an order in the following terms;

(a) That it would appreciate CSOS’ assistance in recovering the outstanding balance due by
the owner(s) in respect of the monthly levies payable to the Applicant.

(b) That it requests a payment order be made to pay full outstanding amount, as well as future
monthly contributions.

The relief sought by the Applicant against the Respondent is upheld insofar as it relates to
prayer(a).

The Respondent is indebted to the Applicant an amount of R 1 762.43;

The Respondent is ordered to pay within two (2) months of receiving this order all the owing
arrear levies;

The Respondent shall simultaneously pay an amount of R881.21 of the outstanding levies
on a monthly basis for a period of two (2) months, plus the payment of the current levies in
terms of this order. First date of payment is 01 August 2023;

Should the Respondent fail to make payments on due date of the levy account, then the
full amount shall become immediately due, owing and payable; and

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No order is made as to costs.

INTRODUCTION

1. The Applicant is Albertsdal Leopard Rest Home Owner’s Association (HOA), situated at
4451 Wolly bugger street, Alberton, GAUTENG PROVINCE.

2. The Respondent, E M Maluka, is the registered owner at 4679 Leopards rest HOA Alberton,
Johannesburg, GAUTENG PROVINCE.

3. 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.

4. The application seeking relief in terms of section 39 of the CSOS Act is in respect of Section
39(1) in respect of financial issues.

5. 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 the 13 July 2023 and an order is now determined.

PRELIMINARY ISSUES

6. No preliminary issues were raised.

RELEVANT STATUTORY PROVISIONS

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 Ref: CSOS2233/GP/23

7. 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.”

8. 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”.

9. 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.”

10. 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.”

11. 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.”

12. In terms of Section 50-

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

13. 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;

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 Ref: CSOS2233/GP/23

(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.”

14. The dispute could not be resolved through conciliation; the matter was referred to an
adjudicator. 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.

SUMMARY OF RELEVANT EVIDENCE

Applicant’s Submissions

15. The Applicant made written submission that CSi Property Management was the appointed
agent of the Respondent. It was responsible for collection of overdue levies.

16. It appears from the documents provided that the Applicant required owners to pay their
monthly contributions in order to effectively manage the estate.

17. According to the Applicant, failure of some owners to contribute to the monthly expenses of
the estate had serious financial implications on the effective management of the estate.

18. The Applicant stated that the Respondent, in this application, was one of the owners who
had defaulted on their levy payments.

19. It also appears that the Applicant had sent sms’s, notices, letters of demand and made
phone calls to the owner(s) in an attempt to collect overdue levies.

20. However, the Applicant had been unsuccessful in its efforts to enter into a repayment
arrangement with the owner(s).

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 Ref: CSOS2233/GP/23

21. The Applicant submitted a statement of account as proof of the Respondent’s indebtedness
to the Applicant for the amount of R1 762.43 in respect of levy and related charges, as at
01 June 2023.

22. Accordingly, the Applicant sought an order that the full arrear amount of R1 762.43 in arrear
levy was due and payable by the Respondent.

Relief sought by the Applicant

(a) That it would appreciate CSOS’ assistance in recovering the outstanding balance due
by the owner(s) in respect of the monthly levies payable to the Applicant.

(b) That it requests a payment order be made to pay full outstanding amount, as well as
future monthly contributions.

Respondent’s Submissions

23. The Respondent failed to make submissions to the Adjudicator on or before the
13 July 2023.

24. The Respondent did not seek any extension in relation to making submission nor did (s)he
bring any condonation application.

25. In view of the above, the matter is unopposed.

Relief sought by the Respondent

26. None submitted.

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EVALUATION & FINDING

27. I have perused and taken into consideration all written submissions made by the Applicant
in arriving at the below decision.

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 merits of the matter are not opposed. The evidence of the Applicant is uncontested. I
am, therefore, inclined to accept it.

31. Clause 10.1 of the Applicant’s constitution specifically provides, “Levies become due and payable
upon occupation, and are payable monthly in advance on the first day of each and every month.”

32. Further, clause 10.3 provides, “Levies that are not paid promptly as per the required date, will bear
interest and access control to the resident will be limited, until such levies have been paid up and a letter of
confirmation is provided by the LRHOA.”

33. The above-cited provision specifically states that the Respondent has an obligation to pay
levy contributions on occupation of the unit. The Respondent elected not to oppose this
allegation. I am, therefore, inclined to accept the Applicant’s version.

34. The Applicant seeks an order for payment of an amount of R1 762.43 which includes interest
charged for failing to pay levies timeously.

35. The Applicant charged interest in accordance with the cited provisions of the constitution
and/or conduct rules, which is binding upon the Respondent.

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 Ref: CSOS2233/GP/23

36. I am inclined to order that the Respondent pays any interest on the arrear amount.

37. I, therefore, find that the Respondent is indebted to the Applicant for the said arrear levy
amount and interest charged.

38. However, it is in the interest of justice and fairness to grant the Respondent additional time
to settle arrear levies.

39. Accordingly, the Respondent is indebted to the Applicant.

COSTS

40. There is no order as to costs.

ADJUDICATION ORDER

41. In the circumstance, it is ordered that:

(a) The Respondent is indebted to the Applicant an amount of R 1 762.43;

(b) The Respondent is ordered to pay within two (2) months of receiving this order all the owing
arrear levies;

(c) The Respondent shall simultaneously pay an amount of R881.21 of the outstanding levies
on a monthly basis for a period of two (2) months, plus the payment of the current levies in
terms of this order;

(d) Should the Respondent fail to make payments on due date of the levy account, then the
full amount shall become immediately due, owing and payable; and

(e) No cost order.

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 Ref: CSOS2233/GP/23

RIGHT OF APPEAL

42. 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.

SIGNED at CENTURION on this 24 July 2023

A N Tshabalala
_____________________________________
ANTHONY TSHABALALA
ADJUDICATOR