AUTHOR: GERARD VADIVALU
PUBLICATION DATE: 20TH FEBRUARY 2026
The Community Schemes Ombud Service Act 9 of 2011 (“the CSOS Act”), inter alia, establishes the CSOS Ombud Service, which has as one of its functions the provision of a dispute resolution mechanism aimed at addressing disputes that arise within community schemes.
Those disputes that fall within the jurisdiction of the CSOS Ombud are set out in Section 39 of the CSOS Act, such that the CSOS Ombud may not decide on disputes where the relief claimed is not one contemplated by Section 39.
Another key provision of the CSOS Act is Section 38(1), which states:
“Any person may make an application if such person is a party to or affected materially by a dispute”.
On the question of whether a litigant is obliged to (as opposed to, may elect to) approach the CSOS Ombud, the plain wording of Section 38(1) of the CSOS Act suggests that a litigant has a discretion, and is not obliged to do so, by use of the word “may”.
Brief summary of two High Court cases on the question of a choice of forums
The case of Coral Island Body Corporate v Hoge 2019 (5) SA 158 (WCC), concerned an application by a body corporate to the High Court for declaratory and interdictory relief regarding one of its members.
The relevant extract of the judgment for purposes of this article is paragraph 10, which provides:
[10] Compelling constitutional and social policy considerations informed the introduction of the legislation that is manifest in the Ombud Act. The promotion of access to justice by those not easily able to afford to litigate in the civil courts was but one of those considerations. Another was the social utility to be achieved by the provision of a relatively cheap and informal dispute resolution mechanism for the disposal of community-scheme-related issues. It requires little insight to appreciate that those commendable policy considerations would be liable to be undermined if the courts were indiscriminately to entertain and dispose of matters that should rather have been brought under the Ombud Act. Whilst judges and magistrates may not have the power to refuse to hear such cases, they should, in my view, nonetheless use their judicial discretion in respect of costs to discourage the inappropriate resort to the courts in respect of matters that could, and more appropriately should, have been taken to the Community Schemes Ombud Service.”
The High Court in the Coral Island case, in effect, recognised the discretion that a litigant had to approach either the CSOS Ombud or the Courts, but in circumstances where a case could more appropriately have been resolved via the CSOS Ombud, the courts should exercise their judicial discretion (not to refuse to entertain the matter but) to grant a costs order that discouraged resort to the courts.
In a later case, in Heathrow Property Holdings NO 3 CC and Others v Manhattan Place Body Corporate and Others 2022 (1) SA 211 (WCC), the High Court went further than the Coral Island case, and in regard to the question on whether a litigant had a choice of forums, the Heathrow case provided, in effect, that a litigant was obliged to approach the CSOS Ombud where the relief sought fell within the ambit of the CSOS Act, save in exceptional circumstances.
In this regard, the Court in the Heathrow case held:
- “The High Court is intended to be a secondary, supervisory forum which is to exercise review and appellate jurisdiction (ie oversight of the discharge by the Ombud and its adjudicators of their duties and powers), not adjudicatory jurisdiction.”
- “[61] In the result, I am of the view that where disputes pertaining to community schemes such as sectional title schemes fall within the ambit and purview of the CSOS Act, they are in the first instance to be referred to the Ombud for resolution in accordance with the conciliative and adjudicatory processes established by the Act, and a court is not only entitled to decline to entertain such matters as a forum of first instance, but may in fact also be obliged to do so, save in exceptional circumstances.”
- “[62] What will constitute exceptional circumstances entitling a litigant to approach the High Court directly will have to be determined on a case-by-case basis.”
The recent Supreme Court of Appeal (the ”SCA”) case
The case of Parch Properties 72 (Pty) v Summervale Lifestyle Estate Owners’ Association and Others 2026 (1) SA 449 (SCA), dealt with the question on whether the High Court had jurisdiction to entertain an application for declaratory relief concerning a dispute involving a community scheme, as a court of first instance.
On the issue of jurisdiction, the SCA held as follows:
- “[18] The CSOS Act does not explicitly or implicitly exclude the High Court’s inherent jurisdiction to hear community scheme disputes. The fact that the Ombud has wider powers does not imply the exclusion of the court’s jurisdiction. In our view, the Act was designed to co-exist with the court system providing the parties with a choice of a forum, not to replace it entirely.”
In regard to Section 38(1) of the CSOS Act, the SCA held that:
- “The section provides that ‘a person may make an application’. Once the choice is exercised, the application ‘must’ be made in the prescribed manner. That is a clear indication of a choice of forum.”
With reference to the Coral Island case, the SCA held that:
“[16] The Coral Island approach is consistent with the Constitution and the purpose of CSOS and related legislation.
Concluding remarks
On the question of whether a litigant is obliged to approach the CSOS Ombud when a dispute arises within a community scheme which falls within the ambit of the CSOS Act, the SCA has clarified the position that a litigant has a choice of forums, such that a litigant may approach either the CSOS Ombud or a Court.
However, on the question of costs, a litigant should be mindful of what was held in the Coral Island case, which is repeated below:
“Whilst judges and magistrates may not have the power to refuse to hear such cases, they should, in my view, nonetheless use their judicial discretion in respect of costs to discourage the inappropriate resort to the courts in respect of matters that could, and more appropriately should, have been taken to the Community Schemes Ombud Service.”.
Tel: +27 31 570 5398
Email: gerard.vadivalu@gb.co.za