One of the most important reasons for the establishment of the CSOS is to provide a cost effective dispute resolution mechanism to community schemes.  Although there have been a number of reported “growing pains” related to this relatively young platform, we believe that it is proving to be useful.

While there may be a long list of improvements that need to be made by the CSOS, we believe that there is equally a massive improvement required in the way which applicants and respondents interact with the CSOS.

One of the most important things that both the CSOS and the parties to a dispute need to understand and appreciate, is that the CSOS has very limited and specific jurisdiction when dealing with disputes.

Section 38 of the CSOS Act states that an application to the CSOS must include a statement setting out the relief sought by the applicant, which relief must be within the scope of one or more of the prayers for the relief contemplated in section 39.

We often find that applicant’s take a shotgun approach when making applications to the CSOS for relief, by asking the CSOS to make orders based on very wide and often ambiguous prayers for relief.

In Joseph Maria Balk v Marius Matthews and Others, which involved an appeal against certain parts of a ruling by an adjudicator, the Western Cape High Court warned of the dangers of failing to comply with the formalities of the CSOS Act dealing with jurisdiction.

The appeal turned on the question whether the adjudicator had the necessary jurisdiction to grant the relief, which he did. Ultimately the High Court upheld the appeal with costs and set aside the relevant parts of the adjudicator’s order, because it found that –

1. the respondent (being the applicant in the CSOS adjudication) did not ask for relief in the manner that they were required to in terms of section 38 and therefore the respondent was not entitled to the relief that was granted; and
2. the adjudicator went beyond the scope of the relief that he was required to determine in terms of the provisions of section 38(3)(a).

The High Court explained that the adjudicator was required to exercise his powers in terms of the jurisdiction afforded to him and could not, because the proceedings may be less formal, ignore the provisions within which he exercised his jurisdiction under the CSOS Act.

It is therefore very important for any potential applicant to ensure that their application complies with the strict requirements set out in section 38 and that their relief sought falls within the scope of section 39.

Should you require assistance to prepare your CSOS application, please don’t hesitate to contact our consulting department at consulting@paddocks.co.za for a no-obligation quote to provide the necessary legal assistance.

---

Article reference: Paddocks Press: Volume 14, Issue 10.

Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, has previously been a Portfolio Manager and a Legal & Compliance Officer of a large managing agency.

This article is published under the Creative Commons Attribution license.

Back to Paddocks Press – October 2019 Edition.