12 Feb How to deal with CSOS applications
With the promulgation of the Community Schemes Ombud Service Act of 2011 (the Act), community schemes and its members are given an alternative forum where they may resolve their differences.
Disputes between owners, with the trustees or with the managing agent may be lodged with the Ombud service for conciliation.
The functions of CSOS
The Community Schemes Ombud Service has a juristic nature, meaning that any adjudication made by the service is binding and may only be challenged in the highest court. In addition, an adjudication made by the Ombud service can only be overturned in such a court.
The function of the Ombud service is to provide a platform for dispute resolution, and to monitor and govern the quality of scheme management in the country. The role of storing relevant scheme documentation has also become the responsibility of the Ombud service; previously this function was left to the Deeds Office to fulfil.
The service must also, in terms of its mandate, promote and provide education and training to its employees and members of community schemes.
Making applications
Any person that may be affected materially by a dispute – even if that person is not party to the dispute – may approach the Ombud service with an application to resolve the dispute.
There are seven categories under which applications can be made. Each category has specific topics that may be considered when lodging an application. The categories range from financial issues to common area disputes.
An application may be rejected if it is outside the jurisdiction of the Ombud service. The Ombud service may also reject an application if it feels that it will be better served if it is dealt with in a court of law or any other authority.
Applications must adhere to the specific requirements of the Act which includes appropriate application and supporting documentation relevant to the dispute. Applications may be rejected if – after having requested the information – it has not been provided by the applicant.
If there is a possibility that an application may be resolved between the parties, the application must be referred for conciliation by an adjudicator. During this process the adjudicator may request further information to assist with the process. The parties are not allowed any legal representation during the adjudication process.
Results
An application to the Ombud service will either be dismissed or an order will be made setting out the adjudicator’s ruling. In both instances, the adjudicator must inform the affected parties in writing of the outcome.
An order made by an adjudicator will either be registered as an order of a magistrate’s court or the High Court, depending on the jurisdiction of the ruling of the adjudicator.
Any person or association that feels it is negatively affected by an adjudicator’s order, may appeal against the adjudication to the High Court within 30 days after the adjudication has been made.
Costs involved
The availability of the Ombud service to deal with disputes without incurring major legal fees has created a frenzy of dispute applications.
The Ombud service must ensure that adjudication orders are fair and reasonable, and within the relevant acts governing community schemes. If not, the cost of appealing an order in the High Court will always outweigh the minimal costs of using the Ombud service.