CSOS and the courts: where do I take my dispute?

The dispute

The body corporate sought an urgent interdict against residents of a unit who had deliberately prevented and frustrated the body corporate from carrying out essential plumbing work next to a shared communal parking space. The estate was experiencing continuous burst water pipes, resulting in excessive water bills and the risk that the insurance company would repudiate their policies with the body corporate.

The court application

In the court application, the residents (the respondents) argued that the body corporate’s (the applicants) approach to seek relief at the High Court was premature. They further argued that the relief sought falls within the jurisdiction of the Community Schemes Ombud Service (CSOS). The court then had to decide whether the Body Corporate’s application was procedurally correct and could be heard by the High Court instead of the CSOS.

The court’s decision

The court held that the Body Corporate is a body corporate established under the Sectional Titles Schemes Management Act (STSMA). In terms of section 3 of the Act, it is mandatory for a body corporate to be registered with the CSOS. As such, the Wingate Body Corporate is subject to the rules, regulations and procedures prescribed by the CSOS.

What is the function of the CSOS?

The CSOS regulates, monitors, and controls the quality of all sectional titles scheme governance documentation. It was established to provide an expeditious, informal and cost-effective mechanism for dispute resolution in community schemes, including urgent disputes.

A closer look at the judgement

Although a high court has concurrent jurisdiction to hear a matter properly brought before it, courts have adopted the view that not all matters brought before them ought to be entertained by the courts. There is, therefore, a preference for adjudication by specialised structures like the CSOS, which have been specifically created to resolve disputes of a particular nature effectively and expeditiously.

The courts held that the CSOS consists of suitably qualified adjudicators and, as such, a court is not only entitled to decline to entertain an application but may in fact be obliged to do so. The provisions of the CSOS are likened to those of the Promotion of Administrative Justice Act, which make it mandatory for a party to a dispute to initially seek relief from the specialized structure (in this case the CSOS). As such, the processes of the CSOS must be exhausted before a high court may be approached.

The court held that the CSOS is a primary forum to adjudicate matters of this nature and that the Body Corporate’s approach to the courts circumvented the mandatory adjudication processes of the CSOS. Therefore,  the application fell with a costs order against the applicants.

The main takeaway?

Body corporates are legally obliged to abide by the laws set out in the STSMA. They are also obligated to comply with the dispute resolution procedures provided in the STSMA and the CSOS. Where matters fall within the jurisdiction of the CSOS, they should therefore be brought before the appropriate adjudicator or the applicant may face a penalty for not complying with dispute resolution procedures.

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Written by Wessel de Kock

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