Navigating Disputes in Community Schemes: CSOS vs. Common Law Remedies

Introduction to Legal Principles

In South Africa, disputes within community schemes like sectional title developments or homeowners’ associations, are regulated primarily by the Sectional Titles Schemes Management Act (STSMA) and the Community Schemes Ombud Service (CSOS) Act. These Acts aim to promote transparent governance and provide accessible, cost-effective mechanisms for dispute resolution. 

Key Legislative Overview

Sectional Titles Schemes Management Act:

Governs the management and administration of sectional title schemes, including budgeting, financial reporting, and conduct rules.

Community Schemes Ombud Service Act:

Establishes an alternative dispute-resolution (ADR) framework—conciliation followed by adjudication—to address disputes within community schemes.

Legal Framework and the Pecanwood Decision

The CSOS process is an informal, staged system of conciliation and adjudication intended to offer an accessible, cost-effective alternative to court proceedings for community-scheme disputes.

However, the High Court and Magistrates’ Courts retain concurrent jurisdiction with CSOS for matters falling within the CSOS Act. A court is not required to refer every dispute to CSOS before deciding a matter.

In Pecanwood Estate Homeowners' Association NPC v Vongani Titi Raymond Ntsanwisi and Another, the Pecanwood Estate Homeowners’ Association NPC sued Mr and Mrs Ntsanwisi out of the North West Division of the High Court, Mahikeng. A key issue in this case was whether the cause of action (which entailed the non-payment of substantial arrear levies) should have been referred to the Community Schemes Ombud Services, instead of the High Court.

The Pecanwood judgment is pivotal in clarifying this jurisdictional relationship. The court held that:

• The CSOS Act does not oust the jurisdiction of the High Court.
• An aggrieved party is not obliged to exhaust CSOS remedies before approaching a court.
• The common-law doctrine of forum non conveniens is not part of South African law in the sense argued; therefore, a court will not decline jurisdiction merely because another forum may be more convenient.
• Nevertheless, litigants who select an inappropriate forum may face adverse costs orders, even if they succeed.

Thus, while CSOS remains the preferred forum for typical scheme-based disputes, Pecanwood clarifies that court proceedings are permissible, especially where there is no genuine dispute of fact or liability.

Comparative Case Law Context

Wingate Body Corporate v Pamba and Another

The court found that the dispute (relating to use of common property) fell within CSOS jurisdiction and should not have been brought before the court. The decision reinforced CSOS’s role as the primary mechanism for community-scheme dispute resolution and cautioned against bypassing its process.

FC Schumacher v Michael Bronn (CSOS 8183/KZN/23)

Here, the CSOS adjudicator ordered specific repairs to both private and common property. The case illustrates CSOS’s practical, remedial powers, allowing for specific performance and maintenance orders that common law cannot easily provide.

Together with Pecanwood, these cases define the operational boundary between CSOS and the courts:

• Wingate and Schumacher emphasise CSOS’s mandatory, remedial focus for contested or governance disputes.
• Pecanwood confirms that the courts retain jurisdiction, particularly where the dispute concerns straightforward enforcement (such as undisputed arrear levies).

Practical Application

• Use CSOS for disputes involving contested levy calculations, governance irregularities, rule interpretation, maintenance, or behavioural issues.
• Proceed to court for clear enforcement matters (such as undisputed arrears or debt recovery) where there is no bona fide factual or legal dispute.
• Costs caution: Even successful litigants risk costs penalties if a court deems CSOS the more appropriate forum.
• Procedure: CSOS applications proceed through filing, conciliation, and adjudication, culminating in enforceable orders. Dissatisfied parties may seek review or appeal to the High Court.

Recommendations

• Triage disputes by nature: Choose CSOS for contested or interpretive matters; choose courts for enforcement of uncontested claims.
• Exhaust internal remedies (e.g., HOA dispute committees) before turning to external forums.
• Consider costs and efficiency: CSOS offers a faster, lower-cost path for typical community disputes, but court recourse remains justified for clear-cut claims.
• Seek legal advice for complex or precedent-sensitive disputes, as nuances in fact and procedure can significantly influence jurisdiction and costs.