The body corporate and the Community Scheme Ombud Service (CSOS)
It is commonly accepted that the trustees appointed in a sectional title scheme have a fiduciary duty to manage the scheme in good faith and with its best interest in mind. This is supported by the fact that all owners in a sectional title scheme have similar obligations toward other residents in the scheme and the common property. This is also underpinned by the Sectional Titles Schemes Management Act 8 of 2011.
In the matter of The Body Corporate of The Sorronto Sectional Title Scheme v Koordom and others, attempts were made to access the unit of the respondents to conduct a leak detection test as damp marks appeared on an adjacent unit.
Access was allowed and a leak detection test was attended to, however the problem persisted. Further efforts were undertaken to resolve the damp issue. A second request was made to the respondents for access to the unit to attend to a second leak detection test, but this request was denied. This formed the basis of their application to the Western Cape High Court Division.
Evidently the respondents had a change of mind and accepted the fact that the applicant is allowed reasonable access to their unit to assist in properly managing the common property of the Sectional Title Scheme.
As the respondent had permitted access to the unit, there was no longer any cause for the court to decide upon and the only matter left was the order pertaining to costs. Although the High Court cannot refuse to hear a matter of this nature, the learned Judge commented on the fact that neither of the parties had considered approaching the Community Scheme Ombud Service (CSOS) for relief.
One of the key points for the establishment of the Ombud is to provide a dispute resolution mechanism to community schemes in a cheaper and more informal way. Regarding disputes, the Community Scheme Ombud Service Act states in Sec 38(1) that any person, including juristic entities, may make an application if the person is a party to or affected by a dispute.
It can be noted that if a specific dispute is within the ambit of the CSOS Act, the Ombud should be approached as a forum of first instance. The adjudication process established by the Act should then be followed, save for circumstances where another appropriate forum can be approached.
The use of the Ombud should be encouraged as this can curb unnecessary litigation and legal costs pertaining to minor disputes. Legal practitioners must therefore take heed of the availability of the Ombud, more specifically towards matters that can be resolved through a more conciliatory approach.
Written by Wessel de Kock
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