Introduction
The Community Schemes Ombud Service (the “CSOS”) is a quick and cheap alternative dispute resolution body designed to resolve administrative disputes in all types of community schemes, including sectional title schemes. The CSOS is designed to provide an alternative, impartial and transparent service for the resolution of administrative disputes in community schemes.
Who can make applications to the CSOS?
The CSOS can deal with disputes in regard to the administration of a community scheme if the dispute is between persons who each have a material interest in the scheme, and one of the parties to the dispute is the association or a scheme owner or occupier. Examples of persons who have material interests in community schemes include, for example trustees, owners, occupiers, bondholders and managing agents.
What kind of disputes can the CSOS deal with?
In terms of section 39 of the CSOS Act, the CSOS can grant orders under seven specific headings, with a total of 34 orders. The seven categories of disputes are financial; behavioural; scheme governance; meetings and resolutions; management services; physical works; and general and other.
Submitting applications for dispute resolution
The first step of the dispute resolution process includes receipt, registration and acknowledgement of a new application. A complainant must complete the Application for Dispute Resolution. An application to the CSOS must be:
- Made using the CSOS application form
- Lodged with an Ombud
These applications to CSOS must be captured on the CSOS Application for Dispute Resolution Form. The form must be completed in full, and all relevant information pertaining to the application must be recorded accurately to eliminate any ambiguity.
Completed Application for Dispute Resolution Forms must be emailed to:
Gauteng, Limpopo and North West: [email protected]
KwaZulu-Natal, Free State and Mpumalanga: [email protected]
Western Cape, Eastern Cape and Northern Cape: [email protected]
In terms of section 52 of the CSOS Act:
The applicant and any other relevant person are not entitled to legal representation during the adjudication process unless
(a) the adjudicator and all other parties consent;
(b) or the adjudicator, after considering
(i) the nature of the questions of law raised by the dispute;
(ii) the relative complexity and importance of the dispute; and
(iii) the comparative ability of the parties to represent themselves in the adjudication, concludes that it would be unreasonable to expect the party to deal with the adjudication without legal representation.
How does the CSOS deal with disputes?
The CSOS receives, registers and acknowledges new application. The Application is assessed to determine validity. Once registered, the application will be assessed to determine validity. There are grounds for which an application may be rejected by the CSOS for example:
- The matter falls outside of the jurisdiction of the CSOS.
- Failure to exhaust the internal disputes mechanism processes that exist within the particular community scheme.
- Failure by the applicant to comply with the 14 day written request for further information
- Another competent authority such as a court of law and/or tribunal can best deal with the matter.
Once the CSOS has received an application and confirmed that it has jurisdiction to deal with the dispute, it can arrange for conciliation and adjudication processes.
Conciliation
Normally the CSOS will attempt conciliation before commencing an adjudication. There is no Conciliation fee. Conciliation is a dispute resolution process in terms of which a neutral and impartial third party, the conciliator employed by the CSOS, uses facilitative processes, techniques and methods of interacting with the parties. The purpose of the process is to engage with the parties, win their confidence and get them to interact, both with the conciliator and with each other. This is a structured attempt to help the disputing parties agree and commit to an agreement that sets out the things that each of them have agreed to do or not to do to resolve their disputes. At the conciliation stage, applications are categorised into: Informal Type where there is a quick telephone conciliation; or Formal Type where there is a conciliation hearing.
All parties to a dispute participate in a conciliation hearing which is chaired by the CSOS Conciliator who is there to assist the parties in finding a resolution. If the matter is not resolved, the conciliator will issue a Notice of Non-Resolution and Referral to Adjudication.
Adjudication
There is no Adjudication Fee. Adjudication is a process in which a neutral and independent adjudicator hears evidence and arguments from the parties involved in a dispute, and settles the dispute by making one or more binding orders.
Matters that are referred for adjudication will be subject to a thorough investigation prior to presentation at the adjudication hearing. At the adjudication hearing, the Adjudicator will consider all the evidence presented and will hand down a determination that is binding on all parties to the dispute.
The investigation process may include inter alia:
- Requests for additional information and/or documentation.
- Requests for sworn statements or affidavits.
- Analysis of photo evidence.
- Conducting inspections in loco (on site) as per section 51 of the CSOS Act.
- The review of all relevant and applicable legislative and other prescripts.
At the adjudication hearing the Adjudicator will consider all the evidence presented and will hand down a determination which is binding on all parties to the dispute. In terms of Section 48 of the CSOS Act, adjudication orders are enforceable just as the Magistrate Court or High Court orders depending on the quantum or nature of relief granted in the determination, or that the creditor or successful party can proceed to enforce their proven claim using the machinery of the court system.
In the event of non-compliance with an adjudication order, the party in whose favour the order has been issued, must approach the CSOS. The CSOS will provide the said party, with a copy of the Notice to the Clerk of the Court / Registrar of the Court, together with the summary of the adjudication order and a Copy of the Writ of Execution. The party can present these to the Clerk of the Court/ Registrar of the Court in the scheme’s magisterial jurisdiction. Once the Clerk of the Court / Registrar of the Court has issued the Order, then the normal court process for the Execution of the Property will follow. There might be instances wherein the South African Police Services are approached for the implementation of the adjudication orders, that requires a specific performance or interdict.
Right of appeal
In terms of section 57 of the CSOS Act:
(1) An applicant, the association or any affected person who is dissatisfied by an adjudicator’s order, may appeal to the High Court, but only on a question of law.
(2) An appeal against an order must be lodged within 30 days after the date of delivery of the order of the adjudicator.
(3) A person who appeals against an order, may also apply to the High Court to stay the operation of the order appealed against to secure the effectiveness of the appeal.
WRITTEN BY DR CARRYN DURHAM
