CSOS dispute resolution procedures v a Court application

Do you live in a Community Living setup such as a Sectional Title Scheme, Homeowners Association or Share Block? 

There are advantages to community living, but disagreements invariably arise amongst neighbours relating to noise nuisance, pets, and the like. 

Until recently, if you could not resolve these difficulties amicably, you had to resort to the police, your local authority, or the courts to come to your assistance. 

The introduction of the Community Schemes Ombud Services Act (“the CSOS Act”) provides a “mechanism for the expeditious, informal and cost-effective resolution of community scheme disputes via an Ombud, who has been given wide inquisitorial powers whereby such disputes can be resolved as informally and cheaply as possible by means of qualified conciliators and adjudicators, without the need for legal representation, save in certain limited circumstances”. This quote is from Judge Sher in Heathrow Property Holdings No 33 CC and Others v Manhattan Place Body Corporate and Others (7235/2017) [2021] ZAWCHC 109 (1 June 2021) reported here. 

The Court heard an urgent application concerning the reasonableness of a body corporate’s conduct rule prohibiting short-term letting and the validity of the trustees’ decision to install a biometric access control system. 

The judge held that the application constituted an egregious abuse of the process of this Court. He concluded that the Applicants should have adopted the dispute resolution procedures established by the CSOS Act and not approached the Court. 

The Court disagreed with the Applicant’s argument that the Court had concurrent jurisdiction to hear a Sectional Title dispute and dismissed the application with an order for punitive costs. It found that the CSOS Act promoted quick and affordable access to justice to those who live in sectional title schemes which cannot afford to litigate in the courts. It concluded that: 

1.    Allowing litigants to proceed directly to a court instead of CSOS would undermine the administrative and quasi-judicial processes which have been provided for in the CSOS Act and would result in forum-shopping by better-resourced litigants; and

 

2.     Allowing litigants to bypass the mechanisms provided for in the CSOS Act to resolve disputes would enable them to avoid the conciliation process provided for by it. This would defeat the legislative purpose of having community scheme disputes resolved, if possible, by way of an informal, expeditious and cheap mechanism, instead of via the courts. 

Unhappy owners that live in a community scheme are advised not to approach a court instead of CSOS, save in exceptional circumstances.