Working with Prof. CG van der Merwe, Graham has analyzed numerous Community Schemes Ombud Service (CSOS) adjudicators’ orders in order to prepare the Paddocks CSOS Casebook series of ebooks. Drawing on this experience, in this article he provides advice to bodies corporate, owners, trustees, and tenants seeking a favorable outcome from their application to the CSOS for an adjudication order to resolve a dispute. By following these suggestions, applicants can enhance their chances of obtaining the best possible result.
When seeking recourse through the CSOS, it is crucial to understand that adjudicators only have jurisdiction to conciliate and adjudicate disputes as defined by the Community Schemes Ombud Service Act 9 of 2011 (the ‘CSOS Act’). This means that (a) applicants must be individuals with a material interest in the community scheme, (b) one of the parties to the dispute must be either the community scheme itself, an occupier, or an owner and, most importantly, (c) the dispute must pertain to some aspect of the scheme’s administration.
Choosing the Appropriate Relief Category
Applicants must ensure that the relief they seek falls within one of the categories outlined in section 39 of the CSOS Act. Section 39 provides for seven categories of orders classified under the headings: Financial Issues, Behavioural Issues, Scheme Governance Issues, Meeting Issues, Management Services Issues, Works Issues and General Issues. We recommend that applicants carefully read each possible order under each of the seven headings before determining the type or types of relief to pursue. Understanding the specific category that aligns with their dispute is essential for a successful application.
In addition, we suggest that applicants should not assume that the ‘general’ order under section 39(7)(b), for “any other order proposed by the chief ombud” can be applied to a type of relief that is outside the scope of the other orders set out in section 39. This order exists to allow the chief ombud to innovate, but only within the scope of the other orders and it is extremely unlikely that such an order will be granted except in truly unusual and deserving circumstances. The High Court has repeatedly confirmed that applications cannot be made to CSOS for relief that is not specifically mentioned in section 39 of the CSOS Act.
Avoid a “Catch-All” Approach
Applicants should focus on one or two crucial issues that form the crux of their dispute and ask only for orders that clearly cover the relief applied for. Simplifying the adjudication process allows for clearer communication of the key points to the adjudicator. It is important to note that adjudicators have limited time to dedicate to each dispute, so providing all relevant information while avoiding superfluous details is a sensible strategic approach. Including long chains of email exchanges and responses can needlessly burden adjudicators and hinder the efficiency of the process and the likelihood of a positive result.
Submission of Relevant Documents and Scheme Rules
Applicants should ensure they submit copies of all relevant documents that support their case. This includes any scheme governance documents and rules that are applicable to the dispute at hand. Providing the necessary evidence and supporting materials in a well-organized and comprehensive manner strengthens the applicant’s position and aids in the adjudicator’s understanding of the matter.
The Responsibility of Applicants and Respondents
The standards of CSOS adjudication orders are gradually improving. However, both applicants and respondents bear a heavy responsibility in providing adjudicators with the information and arguments they require to draft a well-reasoned order. By offering clear and concise submissions, supported by relevant documents and rules, the chances of a favorable outcome increase significantly.
Applying for an adjudication order through the CSOS can be a complex process. To optimize the chances of a successful outcome, applicants should adhere to specific guidelines. Focusing on essential issues, selecting appropriate relief categories, and providing relevant documents and scheme rules are key factors to consider. For the standard of CSOS adjudications to continue to rise, it is essential for applicants and respondents to fulfill their responsibility by equipping adjudicators with the necessary information and arguments to draft sound and fair orders. By doing so, the entire community benefits from a well-resolved dispute and improved harmonious living within the community scheme.
Graham Paddock is a specialist community schemes attorney, notary and conveyancer. He has been advising clients and teaching students for over 40 years, and was an adjunct professor at UCT for 10 years.
Article reference: Paddocks Press: Volume 18, Issue 5.
This article is published under the Creative Commons Attribution license.