Background and Introduction
The Community Schemes Ombud Service Act, 2011(the Act) has been signed by the President. It will however only become operational when the Regulations contemplated by section 29 of the Act are promulgated into law. The Act requires the Minister of Human Settlement to make Regulations after consultation with the Board of the Service. The Regulations must be approved by Parliament and thereafter published in the Gazette (section 29 of the Act).
The Act establishes, for the first time in the history of South Africa, a forum for dispute resolution in community schemes known as the Community Schemes Ombud Service (the Service).
The main functions of the Service are the following:
– To develop and provide a dispute resolution service;
– To regulate, monitor and control the quality of all sectional titles schemes governance documentation;
– To take custody of, preserve and provide public access to sectional title schemes governance documentation;
– To promote good governance of community schemes;
– To provide education and information to raise awareness among stakeholders.
The Act empowers the Chief Ombud to appoint full-time and part-time adjudicators to adjudicate disputes relating to the community schemes. The subject matter jurisdiction of the Service is broad and encompasses the following: financial issues, behavioural issues, scheme governance matters, conduct of meetings in community schemes, management services, performance of work in private and common areas in community schemes, and matters relating to access to information or documents. Adjudicators can adjudicate and make appropriate orders with respect to any of the issues listed above. The adjudication process is triggered by an application launched in terms of section 38 of the Act which provides that any person may make an application if such a person is a party to or affected materially by a dispute.
The Act endows adjudicators with wide ranging powers and these include but are not limited to the following:
– To require the applicant, managing agent or relevant person to give information in the form of an affidavit or statement;
– To invite persons to come to the office of the adjudicator for an interview;
– To invite persons whom the adjudicator considers able to assist in the resolution of issues raised in the application, to make written submissions to the adjudicator; and
– A right to enter and inspect assets of an association, records or other documents (section 51 of the Act).
Any person who fails to co-operate with the Service by amongst other things, failure to comply with a directive issued under this Act, failure to or refusal to give data or information, or giving false or misleading data or information when required to give information under the Act, can be found guilty of an offence and be liable on conviction to a fine or imprisonment for a period not exceeding five years or to both such fine and imprisonment (section 34 of the Act). An order of an adjudicator is enforceable as if it were a judgment of a court of law (section 56 of the Act). The decision of an adjudicator can be appealed to the High Court of South Africa but only on a question of law (section 57 of the Act).
With all the powers afforded to adjudicators of the Service, the question to be explored here is whether the Act provides the adjudicators with enough independence to be able to perform their functions without undue influence from any other source and this writer seeks to explore the subject of operational independence for adjudicators. The article will also interrogate the issue of training for adjudicators. The point of departure for the discussion on the issue of independence of Adjudicators will be section 35 of the Act.
Independence of Adjudicators
Section 35 provides that all employees of the Service must act independently and impartially in making decisions with regard to the resolution of disputes. The Act further provides that once an application is referred to an adjudicator, the Ombud plays no role in relation to the substance of the dispute or the outcome sought by the applicant. It should be noted that the level of independence provided in section 35 of the Act is similar to the one offered by the Constitution of our country with regard to courts of law. The Constitution states that the courts are independent and subject only to the Constitution and the law, which they must apply without fear, favour or prejudice (section 165 of the Constitution). While the Act does not go this far in providing for independence of Adjudicators, it nonetheless requires all Service employees to act independently and impartially in making decisions with regard to the resolution of disputes.
In the context of adjudication in the courts of law, the principle of independence is understood to consist of two elements, (a) decisional independence and, (b) institutional independence. Decisional independence also known as personal independence, relates to the ability of a Judge (adjudicator) to render decisions based solely on the facts of a given case and the applicable law, free from improper influences, pressures or threats from litigants/applicants or other interested parties. Institutional independence on the other hand focusses on the ability of an institution to run its own affairs independently. The main features of an independent institution include the security of tenure for the decision makers of the institution, Budget Vote, ability to make policies, ability to hire and fire staff. The focus of this article though is on decisional independence such that institutional independence will not be discussed beyond this point.
As already indicated above, the Act does provide adjudicators with some independence when they perform their functions. The level of decisional independence the Act affords adjudicators of the Service should be appreciated in that it will enable them to perform their functions with impartiality and integrity. For obvious reasons, this independence is not as extensive as the one the Constitution provides to Judges and Magistrates of our courts. This should be expected in that the Service is not a court of law and Adjudicators of the Service are not Judges or Magistrates.
It is desirable for the Adjudicators to be independent, as provided in the Act, so that they can perform their functions without undue influence from litigants or other external parties. This ensures that the decisions they render are impartial and of high integrity. It must be emphasized that the independence provided by the Act is not for the benefit of Adjudicators but for the benefit of the members of the public who are users of the Service.
It should be pointed out though that the independence of adjudicators, like any independence in other contexts, is not absolute. Adjudicators must still account to the appointing authority (Chief Ombud) for the performance of their functions. Specifically, the Act states that Adjudicators must adjudicate disputes under the supervision of the Ombud or Deputy Ombud (section 21 of the Act).Additionally, Adjudicators are required to observe the principles of due process when they conduct investigations to resolve disputes lodged with the Service (section 50 of the Act). Finally, the High Court of South Africa does play an oversight role over some aspects of the work of Adjudicators through the appeal process. The orders of Adjudicators can be appealed to the High Court on a question of law and this enables the High Court to ensure that the decisions of Adjudicators meet the standards of legality and rationality. If Adjudicators are found to have misdirected themselves on a point of law, the High Court will intervene when there is an appeal and issue an appropriate order to remedy the situation (section 57 of the Act).
Overall though, the introduction of the Service is a good and positive development for the people who reside in community schemes and other users of the Service. There is now an informal and user-friendly dispute resolution mechanism and people will no longer be compelled to go to courts of law on matters that fall within the jurisdiction of the Service.
Training of Adjudicators
A close reading of the Community Schemes Ombud Service Act, 2011 (the Act) reveals that the resolution of disputes is a core element of the mandate of the Community Schemes Ombud Service (the Service).The centrality of the dispute resolution service puts Adjudicators at the centre of the Service. The provisions of section 21 as well that of section 4 of the Act bear testimony to the assertion that Adjudicators are at the centre of the Service. In pertinent part, section 21, empowers the Chief Ombud to appoint Adjudicators with suitable qualifications and experience necessary to adjudicate disputes. For its part, section 4 of the Act requires the Service to provide training for Adjudicators. However, the Act does not elaborate on what kind of training would be appropriate for Adjudicators.
The training to be provided to Adjudicators will have to be informed by the mandate of the Service as well as the subject matter jurisdiction of Adjudicators. With this in mind, it is envisaged that the training curriculum for Adjudicators will consist of the five main themes listed below here:
2. Civil Procedure;
4. Decision Writing; and
5. Subject Matter Content.
There will be a need for the training of Adjudicators around the issue of investigations. The Act requires Adjudicators to investigate an application contemplated in section 38 of the Act to decide whether it would be appropriate to make an order (section 50 of the Act). It is interesting to note that the powers of an Adjudicator are modelled on civil law jurisdictions of Europe in that an Adjudicator will not be a passive participant when considering an application, but will be expected to participate in the gathering and presentation of evidence. For instance, and in the course of an investigation, an Adjudicator may invite persons whom the Adjudicator considers able to assist in the resolution of issues raised in the application to make written submissions to the Adjudicator (section 51 of the Act). For Adjudicators to be able to execute these functions effectively, it is critical that they receive training in this regard.
In conducting investigations Adjudicators are required to observe the principles of due process of the law and must consider the relevance of all evidence but are not obliged to apply the exclusionary rules of evidence as they are applied in civil courts (section 50 of the Act). Even in an informal and less technical setting such as the one provided by the Act, Adjudicators will still need training on the rules of accepting evidence, and the civil procedure theme listed above relates to the training suggested here. Adjudicators are also required to observe the principle of due process of the law when conducting investigations.
Due process of the law means procedural safeguards that must be observed by a dispute resolution forum when considering an application brought before it. One of the elements of due process is the right to be heard and the right to an impartial adjudicator. The due process of the law also includes fairness in the adjudication process. This means that the decision (order) of an adjudicator must meet the standards of (a) legality and (b) rationality and these standards could be tested when dissatisfied applicants/parties appeal the decision of an Adjudicator. This is critical given the fact that the decisions of Adjudicators can be appealed to the High Court on a question of law and whether or not a decision meets the requirements of legality and rationality will be a question of law subject to review on appeal. Central to the functions of an Adjudicator is the adjudication of disputes. Adjudicators will have to be trained on issues such as statutory interpretation and application of law to facts in order to reach a particular conclusion and formulate an appropriate order. The formulation of orders leads one to the next theme suggested for the curriculum and that is Decision Writing.
Decision Writing for Adjudicators is critical in that the High Court of South Africa is mandated to perform a supervisory role over some aspects of the decisions (orders) of Adjudicators through judicial review. In terms of the Act, appeals from an order of an Adjudicator lie with the High Court of South Africa. The reader will recall that any party who is dissatisfied by an Adjudicator’s order may appeal to the High Court on a question of law (section 57 of the Act).The right of appeal to the High Court may present policy and procedural implications for the Service in general and Adjudicators in particular.
For one, the High Court may require Adjudicators to produce decisions that are reasoned as contemplated in section 54 of the Act. A “reasoned decision” will be a decision that includes a statement of the Adjudicator’s reasons for the order formulated to resolve an application/dispute. To satisfy the reasoned decision requirement, an Adjudicator will have to explain how she/he reached a particular conclusion and the rationale for the order handed down in an application. While this is already a statutory requirement, the High Court might seek to enforce it by insisting that the decisions that are appealed must be found to meet this standard for the court to be able to perform a proper review of appealed orders of Adjudicators. The High Court may also prescribe the format and style of the record that must be transmitted by the Service to the High Court in the event of an appeal.
Should the High Court insist on the requirements anticipated here, the Service may respond by including these in the Practice Directives contemplated in section 36 of the Act. The Act mandates the Chief Omud to issue Practice Directives with regard to any matter pertaining to the operation of the Service. Such Practice Directives could include protocols of engagement relating to the envisaged interaction between the Service and the High Court around appeals. It is anticipated that the training curriculum for Adjudicators will touch on these matters.
It is envisaged that the training manual for Adjudicators will also include a module relating to the content of the housing sector regulatory frameworks. The content theme should include the regulatory instruments that inform the mandate of the Service. These regulatory instruments include the Constitution of the Republic of South Africa, Community Schemes Ombud Service Act, 2011, Sectional Titles Schemes Management Act, 2011, Sectional Tittles Act, 1986, Housing Act, 1997, Housing Development Schemes For Retired Persons Act, 1988, Share Blocks Control Act, 1980, and the Co-Operatives Act, 2005.
With regard to the Constitution, the focus should be on the Bill of Rights, as access to housing is a human right and is enumerated in section 26 of the Constitution. Likewise, the property clause of the Constitution is listed under the Bill of Rights in section 25 of the Constitution. Training around the Bill of Rights will be necessary as the resolution of some of the applications lodged with the Service might require an interpretation of the Bill of Rights. It has been mentioned that access to adequate housing is a human right and is part of the Bill of Rights to our Constitution (section 26 of the Constitution). Likewise, the right to property is a human right and is protected through the property clause of the Constitution (section 25).
When the Bill of Rights is interpreted, there are certain requirements that must be satisfied in terms of our Constitution, but these will not be discussed here as they are deemed to be an unnecessary detail. Suffice it to mention that these requirements are enumerated in section 39 of the Constitution. However, for an Adjudicator who is dealing with an application whose resolution hinges on the interpretation of a provision(s) of the Bill the Right, this could be an important detail, hence a suggestion that the Bill of Rights should be included in the training manual for Adjudicators.
Finally, it is anticipated that the training curriculum for Adjudicators will include Rules and Regulations, and Practice Directives. There are Rules and Regulations relating to a number of regulatory instruments that form the basis for the mandate of the Service. It will be critical for Adjudicators to be familiar with these Rules and Regulations.
The Service is responsible for the development of the training manual for Adjudicators as well the training of these officers.
The central role Adjudicators are mandated to play in the Service prompted the writer to explore issues around their independence and the training they ought to receive in order to be able to execute their functions effectively and efficiently. More conversation on these matters is necessary because the Service is new and there is no past experience to draw from. This article is a humble contribution to the conversation on the matters raised.
Article reference: Paddocks Press: Volume 10, Issue 5, Page 1.
Mr. Gagai obtained a Bachelor of Arts in Law (B.A. Law) from the University of Swaziland; Master of Human Services (MHS) from Lincoln University, State of Pennsylvania; Master of Laws (LLM) and Juris Doctor (JD) from Widener University, School of Law, the State of Delaware, USA. He worked as a Workers Compensation Judge for the State of Pennsylvania; the Head of Research and Documentation Programme at the South African Human Rights Commission; Head of Research and Development Unit in the Office of the Speaker of the National Assembly. He joined the Office of the Chief Justice in 2012 as Deputy Head: Judicial Policy, Norms & Standards. Mr. Gagai was also appointed the Registrar of Judges’ Registrable Interests in February 2014.
This article is published under the Creative Commons Attribution license.