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The Community Schemes Ombud Service (CSOS) is the custodian of the Community Schemes Ombud Service Act 9 of 2011 (the CSOS Act). Notwithstanding the fact that the purpose of the CSOS Act is: ‘To provide for the establishment of the Community Schemes Ombud Service; to provide for its mandate and functions; and to provide for a dispute resolution mechanism in community schemes; and to provide for matters connected therewith’, the CSOS Act came into effect on 7 October 2016, the same date as the Sectional Titles Schemes Management Act 8 of 2011.
No reason was given to the unsuspecting public regarding the five year wait before effect can take place, which in my considered view is against the ‘batho pele’ principle. However, the purpose of this piece is to ensure a forward and effective looking process at CSOS.
In terms of Bryan A Garner (ed) Black’s Law Dictionary 7ed (Minnesota: West Group 1999), the definition of ‘alternative dispute resolution’ (ADR) is – ‘A procedure for settling a dispute by means other than litigation, such as arbitration, mediation, or minitrial.’
My assessment is that chapters 3, 4 and 5 of the CSOS Act calls for role clarity, which undermines the ADR mechanism.
Chapter 3 deals with applications, chapter 4 deals with investigation and representation, and chapter 5 deals with adjudication orders.
If one is to contrast the CSOS Act with the Competition Act 89 of 1998, as amended (the Act), the CSOS Act can be improved in the following respects:
If one takes a stroll down memory lane, the Act ‘in the latter part of 1999 and with the Commission starting its first complaint referrals to the Tribunal, there were immediate legal challenges to the Commission and Tribunal’s powers and the nature of competition law enforcement in general. The debate can be split into two broad points of contention,’ namely, the nature of the regulator and the adjudicator, including their respective processes (Deon Prins and Pieter Koornhof ‘Assessing the nature of competition law enforcement in South Africa’ (2014) 18 Law Democracy and Development 136).
Now that the teething stages are over, in the present day, the Act clearly dictates that chapter 2, in particular ss 4, 5, 8, 9, 12, 13 and 15 of the Act are plausible remedies for anyone in contravention of the Act. Following this to its logical conclusion, the CSOS Act would equate to s 39 relief, which is in chapter 3 of the CSOS Act to the identified sections.
This is precipitated by the fact that the Western Cape Division of the High Court in the case of Trustees, Avenues Body Corporate v Shmaryahu and Another 2018 (4) SA 566 (WCC), the court held that: ‘the character of the various types of substantive relief that an adjudicator is empowered to grant in terms of the Act appears from the provisions of s 39’.
The CSOS Act requires proper reform to accommodate the needs of its intended purpose, which it presently lacks. It is essential to note that where jurisdiction is in question, it may be dangerous to rely on authority not falling within exclusive jurisdiction because the principles may differ, as may the perception of the requisite argument traversed.
The purpose of the CSOS Act has not been realised in its present state. This is precipitated by the fact that when an aggrieved party brings an appeal in terms of s 57 of the CSOS Act, CSOS processes look up to the High Court, which sometimes misunderstands the function and purpose of CSOS.
The High Court under those circumstances is supposed to aid the parties in interpreting the meaning and purpose of the CSOS Act within the confines of the dispute as there is no specialist forum to deal with community scheme challenges outside CSOS. This appears to be innocuous until the reports of backlog (Bernadette Wicks ‘Court backlogs continue to grow as targets missed’ (www.citizen.co.za, accessed 20-11-2024)) in busy divisions of ‘court proper cases’ are forced to accommodate CSOS disputes, which should strictly be dealt with in their own forum before the High Court can assist further (Kabelo Khumalo ‘Justice denied: Joburg High Court backlog worsens’ (www.businesslive.co.za, accessed 20-11-2024)).
At best, if one takes one’s case to CSOS for relief, then ordinarily it must be conciliated, and then if conciliation fails, then the matter must be referred to adjudication. Alternatively, in certain circumstances, some cases jump the queue and are directly referred to adjudication in terms of s 48 of the CSOS Act read with Clause 21.5.7 of the Practice Directive on Dispute Resolution.
As regards the practice directive, there is neither a narration to the unsuspecting public why there is no uniform practice directive, nor is there a need for a multiple practice directive for the same institution. If one casts one’s eye over the CSOS website (Practice Directives – CSOS (https://csos.org.za)), then more than 12 documents appear. However, when orders are being made, only version 2 (Practice Directive on Dispute Resolution (https://csos.org.za)) is sent to the parties.
This is something that CSOS has to urgently address because s 36 of the CSOS Act provides that:
‘(1) The chief ombud must issue practice directives with regard to any matter pertaining to the operation of the Service.
(2) Practice directives must, subject to this Act and the regulations, direct the performance of any act in the operation of the Service.’
A uniform practice directive, well consolidated will serve a better purpose from a practical perspective than the many documents that presently exist.
Section 173 of the Constitution provides that ‘the Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.’ Adjudicators at CSOS should have the inherent power to regulate their own process, once a uniform practice directive is available.
In terms of the Black’s Law Dictionary, ‘adjudicator’ is defined as: ‘A person whose job is to render binding decisions; one who makes judicial pronouncements.’ Note must be had that in construction disputes, ‘an adjudicator operates as a tribunal created by contract’ (K Bailey SC ‘Adjudicator’s jurisdictional powers to award costs’ (www.arbitrators.co.za, accessed 20-11-2024)). Express contractual terms govern the procedure that the adjudicator must follow (Bailey (op cit)). The proceedings culminate in the adjudicator’s decision or determination.
Any astute thinker and reader would recognise that a judicial pronouncement carries the effect of s 165(5) of the Constitution, which states: ‘An order or decision issued by a court binds all persons to whom and organs of state to which it applies.’ This effectively means that an adjudicator should be well vested with judicial skills. However, CSOS does not make such investments in its adjudicators. Since the advent of the tendering system, has the quality of the CSOS adjudicators increased or decreased as per the criticisms from appeals? This has to be urgently addressed by CSOS.
The adjudicators at CSOS are deemed to be employees of CSOS, whether on a part time or permanent basis. If one is to compare CSOS with the Commission, then there are valuable lessons to learn. The Commission is the regulatory body, which is an independent and separate body from the Tribunal, yet they are part of the same ministerial portfolio.
The mere fact that CSOS adjudicators belong to the same regulatory framework, usurps the true intention of a clear split between the regulatory and adjudication processes. This is incongruent with any reality and the true definition of adjudication.
Even the most recently accented legislation on 18 July 2024 (Public Procurement Act 28 of 2024) in chapter 6 indicates the intentions of establishing a specialised Tribunal (s 36) and the establishment of a public procurement office (s 4). There is wisdom in separating the two as their roles and functions are quintessentially separate, as a matter of law.
Thus, it is advisable for CSOS to compare the mandate of the CSOS Act with the Act. This can be done by considering the Act from its infancy stage in 1998, to date, and yearn for such growth and victories as have been experienced in the competition sphere. The Act has through proper consideration by astute jurists and through system maturity, developed and continues to develop to date.
If one looks at the CSOS website dealing with orders (Adjudication Orders – CSOS (https://csos.org.za)), one would find orders from 2022 to date. However, the following aspects are noteworthy:
It took the Act 14 years to have its first landmark case (Competition Commission of South Africa v Senwes Ltd 2012 (7) BCLR 667 (CC)), which opened doors to subsequent competition cases at the Constitutional Court, including inter alia the following:
How long will it take for the CSOS Act to reach its intended purpose?
Kamogelo Maputla LLB (UL) is an International Mediator and legal practitioner at the Tshwane Society of Advocates in Pretoria.
This article was first published in De Rebus in 2025 (Jan/Feb) DR 46.
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