CSOS is an impartial alternative dispute resolution body which was established under the Community Schemes Ombud Service Act 9 of 2011 (“CSOS Act”). CSOS as a quasi-judicial body was primarily designed to deal with administrative disputes in community schemes such as sectional title complexes i.e. body corporates and homeowner associations. It was established with the aim of providing a more cost-effective and accessible platform to resolve disputes arising within community schemes as an alternative to the costly and time-consuming process of approaching the courts.
However, a key question that often arises is whether residents and stakeholders within these schemes are required to refer disputes to the CSOS or whether they can bypass the Ombud and take matters directly to the High Court. Unfortunately, there are no hard and fast rules or regulations in this regard and the legal position in South Africa remains fairly uncertain. Nevertheless, despite the uncertainty, recent decisions in the courts seem to indicate that despite the fact that CSOS is the preferred forum to resolve administrative disputes in community schemes, it does not automatically exclude one from approaching the High Court first in this regard.
Before we dive deeper into why one does not necessarily need to approach CSOS first before approaching the High Court it is important to note that this article does not construe to be an exhaustive synopsis of CSOS and its jurisdiction, but rather a brief introduction to the current legal landscape in South Africa in the absence of a definitive ruling from the Supreme Court of South Africa (“SCA”) or the Constitutional Court on the limits and ambit of the High Court’s concurrent jurisdiction with statutory bodies like CSOS.
THE JURISDICTION UNCERTAINTY BETWEEN CSOS AND THE HIGH COURT
As stated above, there is no explicit legal requirement that community schemes have to refer disputes first to CSOS before they can be taken to the High Court. However, the court in Heathrow Property Holdings No 3 CC and others v Manhattan Place Body Corporate and others 2022 (1) SA 211 (WCC) had a different opinion.
The court held in para 61 that:
“where disputes pertaining to community schemes such as sectional title schemes fall within the ambit and purview of the CSOS Act, they are in the first instance to be referred to the Ombud for resolution in accordance with the conciliative and adjudicatory processes established by the Act, and a court is not only entitled to decline to entertain such matters as a forum of first instance, but may in fact also be obliged to do so, save in exceptional circumstances.”
The court in Wingate Body Corporate v Pamba and another 2022 JDR 0323 (GP); (33185/2021) [2022] ZAGPPHC 46 (21 January 2022) embraced a similar position as it was held in para 12 that:
“The question whether a party in the position of the Applicant has the liberty to choose a forum for the purpose of obtaining relief has been addressed in numerous precedent cases. While it is trite that the High Court has concurrent jurisdiction to hear a matter properly brought before it, the Courts have adopted the view that not all matters brought before them necessarily ought to be entertained by the Courts. The Supreme Court of Appeal, whilst asserting the concurrent jurisdiction of the High Court, has pronounced on a preference for the adjudication, by specialised structures, of matters in respect of which such structures were created specifically to resolve disputes of a particular nature effectively and expeditiously, adding that a court might in such circumstances be entitled to decline to exercise its jurisdiction (see Agri Wire (Pty) Ltd and Another v Commissioner, Competition Commission and Others 2013 (5) SA 484 (SCA).”
However, what the aforementioned court failed to disclose or consider is the fact that the SCA in Agri Wire (Pty) Ltd and Another v Commissioner, Competition Commission and Others never supported the position that where a court enjoys concurrent jurisdiction it is entitled to decline to exercise its jurisdiction in favour of a specialised structure created specifically to resolve certain types of disputes. In fact, the SCA specifically conveyed in para 19 that South African law does not recognise the doctrine of forum non conveniens (save for admiralty matters) and our courts are therefore not entitled to decline to hear cases that were properly brought before them in the exercise of their jurisdiction.
The SCA’s approach in Agri Wire seems to keep the long-standing principle that a statutory ouster of the jurisdiction of courts must restrictively be interpreted and construed. In other words, in the absence of an unequivocal and express ouster clause of the High Court’s jurisdiction in legislation such as the CSOS Act, the High Court will enjoy concurrent jurisdiction with CSOS, and parties are therefore entitled to approach the High Court to resolve community scheme disputes, despite CSOS being established to deal specifically with such matters.
The above notion was supported by the SCA in Standard Bank of SA Ltd and Others v Thobejane and Others and Standard Bank of SA Ltd v Gqirana NO and Another 2021 (6) SA 403 (SCA) where the SCA held that section 169 of the Constitution of the Republic of South Africa, 1996, grants High Courts the authority to adjudicate all matters, other than those specifically reserved for other courts which authorisation cannot lightly be compromised. The SCA went further at para 68 to hold that:
“There is a strong presumption against the ouster of the High Court’s jurisdiction, and the mere fact that a statute vests jurisdiction in one court is insufficient to create an implication that the jurisdiction of another court is thereby ousted.”
There is no provision in the CSOS Act which expressly ousts the jurisdiction of the High Court nor is there a provision that confers exclusive jurisdiction on CSOS to determine disputes of community schemes, nor does the Act ouster the High Court’s jurisdiction by necessary implication from any of its provisions. The CSOS Act also does not have a provision which states that a party must first approach the Ombud before they are allowed to approach the High Court for recourse.
Further to the above, the court in Prag N.O. and Another v Trustees for the time being of the Mitchell’s Plain Industrial Enterprises Sectional Title Scheme Body Corporate 2021 (5) SA 623 (WCC) also held the following in para 28:
“If one considers the terms of the CSOS Act as a whole, and the kinds of matters in respect of which an adjudicator can make orders in terms of s 39 of the Act, they either concern regulatory/governance issues … pertaining to the administration of a sectional title scheme, or behavioural issues … pertaining to the conduct of members of the scheme inter se (which commonly would cover so-called nuisance or neighbour disputes). It was clearly not intended that the Ombud would have the power to adjudicate on delictual claims for damages, which involve weighty considerations pertaining to wrongfulness (which depend on prevailing societal norms and public policy) and fault, and the quantification and determination of the quantum of any damages which may have been sustained pursuant thereto, which are matters which are best left for judicial officers and Courts.”
In light of the above, a party can therefore also essentially refer a community scheme dispute to the High Court if that dispute falls within the ordinary jurisdiction of the High Court and/or where the matter requires weighty considerations or is of such a complex nature that the High Court would be more appropriate and more equipped to adjudicate the dispute.
CONCLUSION
In practice, many parties still choose to rather approach CSOS first before the High Court due to its cost-effectiveness and less time-consuming nature compared to approaching the High Court. However, while CSOS provides a convenient platform for dispute resolution, in light of the authorities referred to above, it does not oust the jurisdiction of the High Court and parties can therefore circumvent the Ombud and approach the High Court directly to resolve community scheme disputes especially where doing so might be more appropriate such as in urgent matters or If a dispute raises significant constitutional issues or requires a complex interpretation of law beyond CSOS’s expertise. Especially because of the fact that there is no express provision in the CSOS Act that outs the jurisdiction of the High Court to adjudicate community scheme disputes or a provision requiring that CSOS must first be approached before the High Court can be approached. If a litigant has properly formulated a cause of action and seeks relief that falls within the ordinary jurisdiction of the High Court, there is no reason why he/she should be turned away simply because of the existence of CSOS. The choice between CSOS and the High Court will depend largely on the nature of the dispute, the desired outcomes, and the specific circumstances of the case.
However, as demonstrated in Heathrow and Wingate above, certain courts differ in their opinion when it comes to referring community scheme disputes to the High Court before they have even approached CSOS and will decline to exercise their jurisdiction as they feel that CSOS was specifically established to deal with community scheme disputes and by permitting parties to bypass the Ombud will not only undermine the purpose for which CSOS was established but will also unnecessarily inundate an already overwhelmed court system when the dispute could have been dealt with more swiftly and more cost-effectively by a statutory body specifically created to deal with these types of disputes.
Therefore, in light of the legal uncertainty surrounding the concurrent jurisdiction of the High Court and CSOS, it is advisable for parties involved in community scheme disputes to seek legal advice to determine the most appropriate forum for their matter.
Should you have any questions regarding the appropriate forum in which to refer your community schemes disputes, the necessary steps to take when referring a dispute to a specific forum, or any general grievances or questions regarding community schemes, Pagel Schulenburg Inc. is more than fully equipped to provide expert guidance and assist you in resolving these issues.
