In the event where more than one adjudication forum has concurrent jurisdiction, the Plaintiff is of course at liberty to proceed with the forum of their choice.
For example, where there is a dispute with regards to a contract, the Court under whose jurisdiction such contract was concluded and the Court under whose jurisdiction the Defendant is domiciled, both retain jurisdiction. Under these circumstances the Plaintiff will proceed with either of the two Courts.
Despite the above, policy considerations and legislative provisions will become key where legislation creates specialised forums to adjudicate on specific matters e.g CCMA, Commercial Crimes Courts.
In such instances the Plaintiff is then compelled and expected to utilise such forums even though the normal justice Courts may have concurrent jurisdiction.
The above reasoning was followed in the recent case of Heathrow Property Holdings No 33 CC & Others v Manhattan Place Body Corporate & Others (2021) ZAWCHC 109 (Judgement delivered 1 June 2021) where the High Court was approached with an urgent application for relief against Conduct Rules of a Body Corporate. The applicants had approached the High Court for relief against the installation of a biometric access system on the property as well as their displeasure with regards to a Conduct Rule prohibiting short-term leasing (less than 6 months) to third parties.
The High Court upheld that the urgent application is an “egregious abuse of the process of this Court” and that the relief sought by the application is within the express jurisdiction of the Community Schemes Ombud Service (CSOS) which is mandated by the Community Schemes Ombud Service Act 9 of 2011 to deal with such disputes. As per the arguments of the Respondent that it is within the jurisdiction of the CSOS in terms of section 39 (3) (c) and (d) as well as 39 (4) (c) (d) and (e) to adjudicate and make a ruling on the dispute, the Court upheld that the Applicants were indeed abusing the Court process as clearly the CSOS could adjudicate and rule on the matter. The matter was struck from the roll with costs.
The Community Scheme Ombud Service (CSOS) was established by the Community Schemes Ombud Service Act 9 of 2011 (the Act) which came into force in 2016. The CSOS superintends over governance and the adjudication of disputes in community schemes.Under section 39 of the Act which provides for disputes that the CSOS may preside over and adjudicate on, scheme governance issues and works pertaining to private areas and commons areas are clearly set out as competent dispute areas where the CSOS has express jurisdiction.
The Court also noted the comments in Coral Island Body Corporate v Hoge 2019 (5) SA 158 (WCC) where it was noted that the CSOS was created to provide for an adjudication process that is quicker and cost-efficient for disputes with regards to community schemes, and such a policy consideration cannot then be impeded by the mere fact that the Court has concurrent jurisdiction. Further, the Adjudicators are experienced and qualified to handle and adjudicate on the matters under the CSOS jurisdiction.
We strongly advise that parties to a dispute in community schemes not circumvent the CSOS process especially where it has express jurisdiction. The forum was created by statute to handle such disputes and therefore the Courts acknowledge such and will only intervene where exceptional circumstances have been established that the dispute must be handled by the Court even though it is within the jurisdiction of the CSOS.
At Van Deventer & Van Deventer Attorneys we assist with disputes which fall under the jurisdiction of the CSOS as well as various other Property law matters.
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