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Affo,dob!e ReUobft JunQe

ADJUDICATION ORDER IN TERMS OF SECTION 54

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

Ret: CSOS 7041GP123

IN THE MATTER BETWEEN

THE DIRECTORS OF WESTVIEW VILLAGE

HOME OWNERS ASSOCIATION APPLICANT

and

M M MOKHABUKI 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 Adjudication conducted:

06 JULY 2023
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• Name of the Adjudicator:

Menzi Simelane

• Order:

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

The Respondent is directed to pay the Applicant an amount of R2 343.96 (two

thousand three hundred and forty three rands and ninety six cents) for arrear levies
within thirty (30) days of this order.

No order as to costs.

INTRODUCTION

1. The Applicant is THE DIRECTORS OF WEST VIEW VILLAGE HOME OWNERS

ASSOCIATION, 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
“West View Village HOA. It is located on Entabeni Avenue, Andeon Ex 38 Pretoria,
Gauteng.

2. The Respondent is M M MOKHABUKI the owner of a stand 2248 West View Village.
It is on Entabeni Avenue, Andeon Ex 38, Pretoria1 Gauteng.

3. The Applicant is assisted in bringing this application by CSi Property Management

(PTY) Ltd, a managing agent contracted by the Directors and duly authorised to bring
this application in terms of their resolution dated 21 October 2022.

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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 CSOS issued a notice to the Respondent in terms of Section 43 informing him of
the application and inviting his written response by 23 May 2023. No submissions
were filed by the Respondent and the dispute was referred directly for adjudication on
29 May 2023. A Section 48 notice was then issued. Further, the parties were invited
to make final written submissions, if any, by 09 June 2023.

6. This application seeking relief in terms of section 39 of the CSOS Act, is in respect of
financial issues in terms of Section 39(1 )(e).

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 06 July 2023.

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”.

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“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. In 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

(a) require the applicant, managing agent or relevant person
(i) to give to the adjudicator further information or documentation;
(U) 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;

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(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;
(U) any private area; and
(iii) 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 has not paid his levies and is now in
arrears. Reminders and notices were sent to the Respondent including the levy
statements, emails and phone calls but the arears remain outstanding.

Relief sought by the Applicant:

1 7.The Applicant seeks relief in an order directing the Respondent to pay the outstanding
balance of the arrear levies.

Submission by the Respondent

1 8.The Respondent did not file submissions.

Relief sought by the Respondent.

19.None is indicated on the tile provided.

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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 reliabiNty and
credibility of the witnesses must be considered. 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 Applicant’s version is probable. It involves
findings of facts based on an assessment of credibility and probabilities.

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

23.The common cause facts are that the Respondent is in arrears with the levies. They
have been sent monthly levy statements, followed up with reminder notices, emails
and phone calls but without success. The Respondent, having had an opportunity to
make submissions and provide an explanation for the failure to pay the levies, has not
taken the opportunity. In the circumstances, the version of the Applicant is the only
one that has been provided for consideration.

24 The relationship between the Applicant and the Respondent is governed by the
Memorandum of Incorporation (MDI). It gives the Applicant powers and
responsibilities the carrying out of which is detailed in the MOl. Similarly, the members
in the scheme have obligations which they must honour. This includes paying the
levies. It is understood by every owner in the estate that levies are used towards the
maintenance of the estate and to pay for services rendered by the local municipality
and other service providers.

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25.ln addition to the above, the Conduct Rules of West View Village HOA provides
for the payment of levies in Clause 10. It states as follows;

Clause 10. Administration

10.1. Levies become due and payable from the date of transfer of the
property or stand and are payable monthly in advance on the first day
of each and every month.

26.lt is common cause therefore that the Applicant is legally entitled to take such
measures as are necessary to give effect to the MOI and the Conduct Rules of the
scheme. These 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 Respondent to the scheme are honoured by the payment
of the arrears.

27 That the relationship between the Applicant and the Respondent is contractual is well
established in law and has been confirmed by our courts. The Supreme Court of
Appeal (SCA) in Mount Edgecombe Country Club Estate Management
Association (RF) NPC vs Singh and Others 2019 ZASCA held as follows;

“Where respondents chose to purchase property within the estate and

became members of the association, they agreed to be bound by its
rules. The relationship between the Association and the respondents is
thus contractual in nature. The conduct rules, and the restrictions
imposed by them, are private ones entered into once an owner elects to
buy property within the estate’

28.lt is trite that 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 and

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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. The Respondent is responsible for their levies.

29.ln 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.

30. In the file is also contained a payment confirmation from the bank of the Respondent
for an amount of R3000.00 (three thousand). This is payment to the account of the
Applicant for the arear levies. This was done on 28 March 2023 after the dispute was
lodged with the CSOS. This means that the amount claimed in the application by the
Applicant is now reduced by the amount paid.

COSTS

31 There is no order as to costs.

ADJUDICATION ORDER

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

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

(b) The Respondent is directed to pay the Applicant an amount of R2 343.96 (two
thousand three hundred and forty three rand and ninety six cents) within thirty
(30) days of this order.

(c) No order is made as to costs.

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RIGHT OF APPEAL

33. 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.

06TH
DAY OF JULY 2023

LANE
ADJUDICATOR