It has been almost six years since the Community Schemes Ombud Service Act (“the CSOS Act”) came into operation and by now it is generally understood by most stakeholders in community schemes that any person who is dissatisfied by an adjudicator’s order, may appeal to the High Court, but only on a question of law, and provided that the appeal against an order must be lodged within 30 days after the date of delivery of the order of the adjudicator.

According to the Annual Report of CSOS for 2020/21, it appears that a total of 45 appeal applications were filed with the High Court against adjudication orders in terms of section 57 of the CSOS Act during the period under review. In my experience, the overall quality of the administration of adjudication procedures and the substance of adjudication orders has been relatively poor, which leads me to believe that the number of appeals filed with the High Court should be much higher, however there are a number of factors which probably limit the amount of people who are either willing or able to lodge an appeal against an adjudication order.

These limiting factors include the following:

1. The costs of lodging an appeal in the High Court are unrealistically high for most people;
2. The time period of 30 days in which an appeal must be lodged is arguably too short for most people to make an informed decision on whether or not to lodge an appeal; and
3. The fact that an appeal may only be lodged in relation to a question of law limits the amount of adjudication orders which qualify for an appeal in terms of section 57 of the CSOS Act.

The purpose of this article is to highlight the fact that an appeal in terms of section 57 of the CSOS Act is not the only remedy available to persons who are dissatisfied with the decision of an adjudicator.

Most people don’t realise that they have a fundamental right to administrative action that is lawful, reasonable and procedurally fair, in terms of section 33(1) and (2) of the Constitution of the Republic of South Africa, and as set out in the Promotion of Administrative Justice Act (“PAJA”).

The High Court has declared that an adjudication order issued by a CSOS adjudicator is a decision that has been taken by a functionary of a juristic person (i.e. the CSOS), exercising a public function, and as such adjudication orders fall squarely within the definition of administrative action as defined in section 1 of the PAJA.

In terms of section 6 of the PAJA there are a number of grounds upon which a person may institute proceedings in the High Court for the judicial review of an adjudication order.  Below is a non-exhaustive list of examples where the High Court has the power to review an adjudication order:

1. Where the adjudicator was materially influenced by an error of law;
2. Where the adjudicator was biased or reasonably suspected of bias;
3. Where the adjudicator failed to take relevant and material considerations;
4. Where the decision of the adjudicator was not rationally connected to the information before the adjudicator;
5. Where the adjudication process was procedurally unfair; and
6. Where the adjudication order was unconstitutional or unlawful.

Any person who has been denied their fundamental right to just administrative action that is lawful, reasonable and procedurally fair based on the grounds set out in section 6 of the PAJA is entitled to institute legal proceedings in the High Court, in order to bring the adjudication order under review in terms of the PAJA.  This raises the question of whether review in terms of the PAJA is possible in light of the provisions of section 57 of the CSOS Act.

Fortunately, the High Court has found that an interpretation of section 57 of the CSOS Act that excludes the High Court’s review jurisdiction would exclude the appellant’s fundamental right to an adjudication order that is lawful, reasonable and procedurally fair. Therefore, an appellant is not excluded from launching review proceedings when they are dissatisfied with an adjudicator order.

There are several advantages linked to review proceedings, the most notable being that a review extends to far more issues than an appeal. The grounds for review as set out in the PAJA are extensive and are matters that cannot be determined in terms of an appeal in terms of section 57 of the CSOS Act.  One of the other advantages of a review is that the application for review must be made within 180 days, as opposed to 30 days in the case of an appeal, which allows for more time to make an informed decision on whether or not to launch legal proceedings. The only unavoidable drawback is that as with all High Court proceedings, the costs involved are relatively high.

So it is important to understand that adjudication orders are not only capable of being appealed in terms of section 57 of the CSOS Act, but in certain circumstances they are also open to being challenged on review and I expect this practice to become more prevalent in the future.

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Article reference: Paddocks Press: Volume 17, Issue 3.

Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, is the Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law. Contact him at www.theadvisory.co.za if you require any assistance with a dispute in your community scheme.

This article is published under the Creative Commons Attribution license.

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