CAUTION WHEN APPROACHING THE COURTS PREMATURELY

Be cautious when approaching the courts prematurely to resolve a community scheme dispute.

The recent High Court decision of Wingate Body Corporate v Pamba and Another (33185/2021) [2022] ZAGPPHC has highlighted the danger of approaching the court to resolve a dispute between a community scheme (in this instance a Body Corporate) and its members, notwithstanding the court having concurrent jurisdiction, where a cheaper and supposedly quicker solution lies with a specialised body.

The Community Schemes Ombud Service Act 9 of 2011 (‘‘The CSOS Act’’) became law in 2016 and established an Ombud with jurisdiction to deal with financial, behavioural and governance disputes in community schemes.

In the matter before the High Court the Wingate Body Corporate brought an application on an urgent basis seeking an order prohibiting two residents in the complex from interfering with the business relationship with the contracted plumbing company, interfering with the Body Corporates` functions and powers and prohibiting the residents from threatening or intimidating the Board of Trustees.

The dispute between the parties related to the use of common property situated next to the resident’s residential unit. The common property was utilised as a carport and the residents denied access to plumbers contracted by the Body Corporate to replace aged water pipes running underneath the carport which resulted in recurrent water pipe bursts and excessive water charges.

The basis for the residents’ case was that the Body Corporate approached the court precipitately for resolution of the dispute. The rules and procedures for the regulation and management of sections and common property are prescribed by the Community Schemes Ombud Service (‘‘The CSOS’’). The CSOS is mandated by the Sectional Title Schemes Management Act 8 of 2011 (‘‘the STSMA’’) to grant orders in respect of behavioural issues including an order that behaviour constitutes a nuisance. CSOS also has the power to order that a person act or refrain from acting, in a specified manner.

The CSOS was established to provide an expeditious and cost-effective mechanism for the resolution of disputes. The CSOS Practice Directive on Dispute Resolution of 2019 makes provision for matters to be brought on an urgent basis in cases where there is, an immediate and serious health or safety risk, a deprivation of essential services and in disputes relating to access to a scheme by unit owners or occupiers.

The court in its finding highlighted a preference for adjudication by specialised structures in matters where such structures were created to resolve disputes of a particular nature effectively and expeditiously. In dismissing the Body Corporates` application with costs, the Court despite having concurrent jurisdiction cautioned that the courts should only be approached where there is no alternative relief.