Expert advice: Avoiding legal duplication in sectional title levy recovery

Dear Conviction, 

I read your article on arrears in a body corporate and have a question about the implications of pursuing a matter in both court and Community Schemes Ombud Service (CSOS) simultaneously. 

My neighbour is in arrears, and the body corporate has initiated both a court case and a CSOS dispute against him at the same time. While I understand the need for the body corporate to recover outstanding levies, I believe taking the matter to court unnecessarily wastes funds when CSOS offers a cost-free resolution. 

Is there a way to hold the body corporate accountable for duplicating the issue in two forums and causing additional costs? I read on your site that CSOS can close a duplicate case, but has this been done before? Or is the matter simply dismissed at adjudication? 

Law expert Ashwini Singh says: 

As per one of my previous articles, (Legal alert: Why duplicate community scheme disputes are rejected in South Africa) the Community Schemes Ombud Service can reject an application for dispute resolution on the basis that the dispute already forms part of existing court proceedings – Paragraph 12.3 of the CSOS Practice on Dispute Resolution 2019 reaffirms this stance.  

In this circumstance, the civil court suit was instituted prior to a CSOS case. Therefore, the best move would be to have the CSOS case closed due to it being a duplicate proceeding, so that the matter can be dealt with in court.  

The way to close the CSOS matter is to have either affected party in the matter address written correspondence to the CSOS and inform them of the existing court matter on the same dispute. Thereafter, the CSOS can proceed to close the file without adjudication so that it may be attended to by the court. 

In the CSOS case of The Trustees of The Ridge Body Corporate v Singh & Singh (CSOS 12425/KZN/23), the applicant filed a dispute on a matter that was already in the High Court months prior. The Respondents informed the CSOS of the existing High Court proceeding and that the Applicant lodged a duplicate case before the CSOS. As a result, the CSOS closed the Applicant’s file.  

On the other hand, the most financially prudent method for your body corporate would have been to approach the CSOS for the levy recovery prior to escalating the matter to court. In my opinion, the court case is the cause of more costs to the body corporate. However, as per the CSOS Practice Directive, court matters take precedence over CSOS applications.  

As I wrote in my recent arrears article (Irregular levy increases, mismanagement, and legal threats in a sectional title scheme), the body corporate member in arrears is liable for costs incurred upon the body corporate in the recovery of amounts owing. Consequently, the court fees caused by the court matter for levy recovery should be sought from the individual who has outstanding payments due. 

Singh is a law academic and an affiliate of the Association of Certified Fraud Examiners, South Africa.  

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