Community scheme disputes: CSOS or the courts first?

Disputes within community schemes are a common occurrence. When attempts to resolve these disputes amicably fail, parties often find themselves contemplating whether to approach the Community Schemes Ombud Service (CSOS) or directly seek resolution through the courts. The answer to this question is not straightforward, as recent legal cases have shed light on the importance of understanding the jurisdiction and role of each entity involved.

In the case of Heathrow Property Holdings No 33 CC and Others v Manhattan Place Body Corporate and Others (“the Manhattan Place case”), the Cape Town High Court ruled that disputes related to sectional title schemes should be referred to the CSOS for resolution before approaching the court.

However, the court in the Manhattan Place case also recognised that exceptional circumstances could justify approaching the court directly without first engaging the CSOS. The determination of such exceptional circumstances is subjective and must be evaluated on a case-by-case basis. Subsequent cases, namely the Body Corporate of the Sorronto Sectional Title Scheme, Parow v Koordom and Another (“the Sorronto case”) and the Port O’Call Body Corporate v Verwoerdpark Liquors (Pty) Ltd (“the Port O’Call case”), provided further insights into this matter.

In the Sorronto case, the court reiterated the importance of acknowledging the CSOS as an available and cost-effective option for straightforward matters that require a conciliatory approach. Directly approaching the High Court in such cases may be seen as frivolous and vexatious.

In contrast, in the Port O’Call case, exceptional circumstances warranted approaching the High Court directly, as involving the CSOS would have caused delays and concerns for the body corporate.

To illustrate a situation where the CSOS had no jurisdiction at all, the Prag N.O and Another v Trustees for the time being of the Mitchell’s Plain Industrial Enterprises Sectional Title Scheme Body Corporate and Others (“the Mitchell’s Plain case”) demonstrated that an aggrieved party should have approached the High Court directly. This case highlighted the importance of understanding the appropriate jurisdiction for a specific dispute.

In this article, one of our Legal Professionals, Phumelele Masango and our Chief Legal Officer, Fausto Di Palma, discuss the importance of carefully considering whether exceptional circumstances exist to warrant approaching the High Court directly when the CSOS has the power to grant the relief sought. It is crucial for legal teams to evaluate each case on its merits and to determine the most appropriate course of action, saving costs, time, and resources.