Can't resolve your dispute internally, what's next?
Category Newsletter: Did you know?
Should you be a party to a dispute in a community scheme, such as a sectional title scheme or homeowners' association, and you disagree on a matter relating to the administration and/or management of the scheme, such as the outcome of a vote, the contribution levied on you, or the application of the scheme's rules, you can approach the Community Schemes Ombud Service ("the CSOS") for resolution of your dispute, in terms of section 38 of the Community Schemes Ombud Service Act 9 of 2011 ("the CSOSA").
Provided that you are a member (owner), trustee or director, tenant or managing agent of a scheme, you can make an application to CSOS, who have the ability to offer dispute resolution, through a guided process, if the issue experienced falls within one of the categories of relief as set out in section 39 of the CSOSA.
One of the important prerequisites of approaching the CSOS, is that you must have, at least, tried to resolve the issue in dispute internally, including speaking to the relevant parties, meeting, obtaining advice, and approaching the members. If you have tried, on a reasonable basis, and have not been successful, you can then approach the CSOS. In this regard, the CSOS asks that you provide "evidence" of your attempts at "exhausting" your remedies before approaching their offices.
To start off an application, all you need to do is "tell your side of the story" on the prescribed application for dispute resolution form, carefully and properly completed, with any relevant information attached, such as emails, rules, minutes of meetings etc. You then send this form into the CSOS offices, within your jurisdiction, easily via email, and you may send a copy to the "other side".
The CSOS will review your application, and come back to you if there is anything that needs clarification or amendment. If the matter is one that they can take on, they will send your application to the "other side", known as the respondent, for their reply, within a period of approximately one (1) week. It is possible for the Respondent to ask for an extension with a valid reason, and a further one (1) week may be granted.
The CSOS will then send this reply to you, as the applicant, for your response. This is not your opportunity to raise new issues, or ask for more assistance from the CSOS, but rather to answer the comments made to your application. You should have just less than one (1) week to do this. You, too, could obtain an extension, if reasonably required.
If there is a possibility of resolving the issues, via discussion, the CSOS will hand the matter over to a conciliator, employed by the CSOS, who will contact both parties with a proposed date for a conciliation telephone call or MS Teams meeting. This is normally scheduled for one (1) hour. The CSOS do not like to reschedule / postpone these calls / meetings, so an extension is not likely.
During conciliation proceedings, the conciliator will attempt to facilitate a resolution of the dispute without "taking sides" or giving advice. During these proceedings, the applicant is asked to explain the issue and what outcome is wanted. The respondent may then reply in answer confirming their view of the issue and whether or not they believe that the outcome can be achieved. The conciliator will allow this back and forth until they are of the opinion that the matter can or can not be resolved. If it is possible to resolve, the conciliator will note the resolution in the form of a written settlement agreement for signature by both parties, after which the file will be closed. If no resolution is achieved, the conciliator will issue a notice of non-resolution and referral to adjudication.
At this stage, the investigating officer will make contact with the parties to request that no further information is submitted until a request for same. The adjudicator appointed (or upon a participant's request) will request, via the investigator, final written submissions or attendance at adjudication proceedings, either via MS Teams, at the offices of the CSOS, or at the scheme, if an on-site inspection is required. This process is quite fluid, and depending on how the matter progresses, it can be dealt with quickly or be delayed for quite some time.
Once the adjudication proceedings are concluded, the adjudicator will consider both sides and make a written award, known as an adjudication order, that is final and binding, and can be enforced via the court. An order can be taken to the High Court on review or appeal, and the CSOS is working on an internal review / appeals process. It is important to note that the orders are reviewed for quality assurance, and this is done internally by the CSOS.
In our opinion, it is always best to try to resolve issues within community schemes internally, before approaching any external forum, including the CSOS, but we understand that sometimes it is not possible to resolve an issue without some form of outside influence.
About the Author
Please click on the following link to learn more about the Author and her company, TVDM Consultants - https://www.tvdmconsultants.com/zerlinda-van-der-merwe.
Author: Zerlinda van der Merwe, TVDM Consultants
