The Community Schemes Ombud Services (CSOS) was established by the Community Schemes Ombud Services Act, 9 of 2011.
Amongst its responsibilities is the adjudication of disputes in community living schemes, vetting of conduct and management rules, educating members of Sectional Title Schemes or Homeowners Associations etc.
It is commonplace that disputes arise in community living schemes owing to various reasons and therefore provisions must be in place to regulate dispute resolution processes between the parties involved.
In the event that one party is not satisfied with the outcome of the adjudication process, this article will look at the process as to which such party may follow on appeal in pursuit of a favourable outcome.
As a point of departure, an enabling clause must be in the Management Rules to provide for parties referring the dispute to CSOS whether or not before Arbitration.
Further, not all disagreements can be concluded as disputes for arbitration purposes. As an example, where a unit owner does not pay levies, neither gives reasons why they are not paying nor object to the calculation of the levies, this does not constitute as a dispute.
Similarly, where an owner denies liability but does not give reasons for it, in Body Corporate of Greenacres v Unit 17 CC And Another 2008 (3) SA 167 (SCA) par. 9D, the Court held that this does not amount to a dispute of law. The Court held that it is not compulsory to refer a dispute to arbitration if there was no dispute or disagreement amounting to what is accepted as a dispute.
Similarly, it was held in the case of Pinewood Park Scheme No. 202 v Dellis (Pty) Ltd (498/2011) (2012) ZASCA 105 that arbitration in terms of Management Rule 71 was consensual and if required, the Body Corporate and its members could amend to provide for a compulsory arbitration.
On the other hand, Section 57 of the CSOS Act provides that an order of an Adjudicator can be appealed and in the case of Sternesen and Tulleken Administration CC v Linton Park Body Corporate And Community Schemes Ombud Service Adjudicator, the Court was asked to determine how a Section 57 appeal process must be executed as conflicting interpretations by different divisions of the High Court and amended practice directives brought confusion.
An Appellant may only appeal the decision based on a point of law, to the High Court, within 30 days from the date of delivery of the judgment/order by the adjudicator. The Appellant may also request the stay of the Adjudicator’s order pending the determination of the appeal by the High Court.
Nowhere in the section does it provide for application for leave to appeal, meaning that the dissatisfied party may proceed to file the notice of appeal without having to apply for leave to appeal from the adjudication forum.
The following procedure is advised about how an appeal must be executed;
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