- Lara Gelderbloem, Candidate Legal Practitioner
Many of us reside in homes which form part of a Sectional Title Scheme, in terms of which a Body Corporate is established. Where disputes between residents or with the Body Corporate arise, it is important to be cognisant of the available legal routes which may be taken.
In terms of the Sectional Title Schemes Management Act 8 of 2011, every Body Corporate is required to be registered with the Community Schemes Ombud Service (“CSOS”). As a result, all Bodies Corporate are subject to the rules and regulations published by CSOS. In 2011, CSOS was established in terms of the Community Schemes Service Act 9 of 2011 (“CSSA”), which intended to regulate the conduct of parties within community schemes and to provide for a cost-effective and expeditious dispute resolution mechanism.
The jurisdiction that CSOS has over certain matters is expressly set out in the CSSA, and it has previously been held that where a matter does fall within the ambit of CSOS, it is improper to bring such a matter before a High Court as a first resort. The Western Cape High Court, on 1 June 2021, awarded costs on a punitive scale on the basis that the matter should have been pursued in terms of the alternative dispute measures as established by CSOS, and circumventing this jurisdiction amounted to an abuse of process in the High Court. In this case, the High Court rejected the notion that an applicant has the prerogative to approach either the High Court or utilise CSOS, where concurrent jurisdiction in respect of the dispute exists.
In Coral Island Body Corporate v Hoge 2019 (5) SA 158 (WCC), the Western Cape High Court adjudicated similarly on a sectional title scheme dispute wherein it was ruled that the object of the CSSA must be upheld. In this regard, the dispute resolution mechanism was introduced to promote the interests of residents of sectional title units who do not have the financial means nor the access to justice to defend or pursue disputes in a court of law readily.
It therefore cannot be ignored that there is a recent movement in our High Courts towards approaching CSOS first rather than simply negating this route and proceeding straight to Court. The recent Court judgments illustrate a lesser degree of tolerance for litigants who do not utilise CSOS at the outset.
However, it is worthwhile to consider the advantages and disadvantages of pursuing a claim in a Court of law instead of referring a dispute to CSOS:
The time frame associated with a trial process in a Court, should the action be defended, can entail at least a year before the matter is heard in Court and judgment is granted. Regarding the process at the CSOS, there is currently a backlog of matters and whilst the process is intended to be expedient, the time frame is uncertain.
In respect of costs, the CSOS process is likely to be more cost-effective due to the process being less complicated in that it is a more informal forum. Such a process could still naturally incur legal fees through drafting the relevant documents and facilitating the CSOS process. On the contrary, the fees and costs associated with litigation in a Court can be exorbitant, especially in light of the likelihood that the opponent will defend such action and may use dilatory tactics to its benefit.
In the case of a dispute surrounding a debt in a Sectional Title Scheme, where a Body Corporate, for instance, approaches a Court to illicit payment and successfully obtains a judgment, in enforcing the judgment, a warrant of execution will need to be issued. After that, the Sheriff with jurisdiction can attach movable property belonging to the judgment debtor and sell same in execution to satisfy the judgment debt. In the alternative, a CSOS adjudication award can also be made a Court Order in terms of which a warrant of execution can then be issued and executed.
When considering the options available to you as a resident, trustee of a Body Corporate or any other party to a Sectional Title Scheme, do not hesitate to reach out to our team at Spence Attorneys at our Johannesburg or Cape Town branch.
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