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

Introduction to Legal Principles

In South Africa, disputes within community schemes, such as sectional title developments or homeowners’ associations, are governed by several key pieces of legislation. The Sectional Titles Schemes Management Act (STSMA) and the Community Schemes Ombud Service (CSOS) Act play crucial roles in managing and resolving these disputes.

Key Legislation Overview

• Sectional Titles Schemes Management Act (STSMA): Regulates the management of sectional title schemes, including financial transparency and governance.
• Community Schemes Ombud Service (CSOS) Act: Provides a dispute resolution mechanism for community schemes, ensuring proper governance and management.

Comparison of Common Law Remedies and CSOS Remedies

Common Law Remedies

• Damages and Interdicts: Common law provides remedies such as claims for damages and interdicts to address harm caused by a neighbour’s actions. These remedies are primarily financial or prohibitory.
• Limitations: Courts may not order a neighbour to perform specific acts on another’s property, focusing instead on financial compensation.

CSOS Remedies

• Specific Repairs and Maintenance: The CSOS Act allows adjudicators to order specific repairs or maintenance to both private and common areas, providing a more proactive approach to resolving disputes.
• Preventive and Remedial Focus: CSOS orders can prevent future harm and address ongoing issues directly, offering a more practical solution for community schemes.

Key Differences

• Scope of Orders: CSOS orders are more flexible and can compel specific actions, unlike common law remedies which are often limited to financial compensation.
• Preventive and Remedial Focus: CSOS focuses on resolving ongoing issues and preventing future harm, whereas common law remedies may require a higher threshold of urgency.

Caution When Approaching a Court Rather Than CSOS

When dealing with disputes in community schemes, it is crucial to approach the Community Schemes Ombud Service (CSOS) first. The CSOS Act provides a mandatory adjudication process that must be followed before seeking court intervention. Failing to do so can result in adverse cost orders and may be seen as an abuse of court process.

Case Law: Wingate Body Corporate v Pamba and Another

Facts of the Case

This case involves Wingate Body Corporate and a dispute over the use of common property. Wingate sought a court order to prevent residents from interfering with their business operations. However, the residents argued that the matter should have been brought before the Community Schemes Ombud Service (CSOS) rather than the court.

The Court’s Decision

The court ruled that the dispute fell within the jurisdiction of the CSOS and should not have been brought before the court. The CSOS Act provides a mandatory adjudication process for resolving disputes within community schemes, emphasizing the importance of following this framework before resorting to court.

Key Points from the Judgment

• CSOS Jurisdiction: The CSOS has the authority to address disputes within community schemes, including issues related to common property.
• Mandatory Adjudication: Disputes should be resolved through the CSOS process before seeking court intervention.
• Cost Implications: Failing to follow the CSOS process can result in adverse cost orders.

Case Law: The Schumacher Case

In FC Schumacher v Michael Bronn (CSOS 8183/KZN/23), the CSOS adjudicator granted an order requiring the respondent to carry out specific repairs to both his balcony and the applicant’s damaged section. This case illustrates how CSOS adjudicators can compel specific remedial actions, unlike common law remedies.

Key Points from the Schumacher Case

• CSOS Orders: The adjudicator ordered specific repairs to both private and common areas.
• Preventive and Remedial Focus: The order addressed ongoing issues and prevented future harm.

Conclusion

When faced with disputes in community schemes, it is advisable to utilize the CSOS process rather than immediately approaching the courts. The CSOS Act offers more flexible and specific remedies tailored to community schemes, allowing for proactive resolution of disputes and prevention of future harm.