Auren Freitas dos Santos, Paddocks

The procedure to be followed to appeal a CSOS adjudicator’s order is not one for which provision is made in terms of the rules of court, and no procedure has been prescribed for it in terms of the Community Schemes Ombud Services Act (“the CSOS Act”) or the regulations made thereunder.

However, following the judgment in the Western Cape High Court, delivered on 10 May 2018, in the matter of The Trustees for the time being of the Avenues Body Corporate v Shmaryahu and Another, the procedure to be followed for all appeals in terms of section 57 of the CSOS Act was thought to have been clarified by the High Court.

In the Shmaryahu judgement, the Court held that the proper manner in which such an appeal against a CSOS order should be brought, is upon notice of motion supported by affidavit(s), which should be served by the sheriff on the Community Schemes Ombud Service, as well as the adjudicator who made the determination.

Based on this judgment, the CSOS issued a Practice Directive on Dispute Resolution No. 1 of 2019, which came into effect on 1 August 2019, echoing the High Court’s findings.  This appeal procedure was subsequently followed by the KwaZulu-Natal High Court, in the matter of The Body Corporate of Duroc Centre v Singh, in a judgment delivered on 13 May 2019.

However, in the recent matter of Stenersen and Tulleken Administration CC v Linton Park Body Corporate and Another, the South Gauteng High Court differed from the findings of the Western Cape High Court in the Shmaryahu Judgment.

In this judgment, delivered on 24 October 2019, the South Gauteng High Court was called upon to determine which category of appeals an appeal brought in terms of section 57 of the CSOS Act falls into and what process must be followed by an appellant in launching such an appeal.

The South Gauteng High Court focused on the interpretation of section 57 of the CSOS Act and drew the following conclusions:

1. No leave to appeal is required to be given by the Community Schemes Ombud Service;
2. An appeal against a CSOS order may not be made after 30 days has elapsed;
3. A specific question of law must be identified by the appellant and that question must be considered by the High Court, and that the court will not be permitted to consider additional issues.  In other words the conclusions drawn from the evidence made by the adjudicator cannot be re-considered on appeal;
4. And finally, that speed, economy and finality is the reason the legislature limited the appeal process.

Based on these conclusions, the High Court held that an appeal court is limited to considering whether the adjudicator:

1. Applied the correct law;
2. Interpreted the law correctly; and/or
3. Properly applied the law to the facts as found by the adjudicator.

Accordingly, an appeal court may only determine whether the conclusions of law reached by the adjudicator were right or wrong.  The High Court held that this demonstrates not only the need to finally resolve disputes of facts at adjudication level, but also the necessity of avoiding or limiting the number of appeals brought to the High Court, thereby alleviating the burden of the High Court in dealing with matters of this nature and that to conclude otherwise would defeat the purpose of what the CSOS Act seeks to achieve.

The High Court found that an appeal against a CSOS order as contemplated in section 57 is a re-hearing on the merits, but limited to the evidence or information on which the decision under appeal was given, and in which the only determination to be made by the court of appeal is whether that decision was right or wrong in respect of a question of law.

Interestingly, when considering whether adjudication hearings must be recorded and subsequently transcribed, which the CSOS had noted was a costly expense, the High Court held that the application filed with the CSOS, and any subsequent exchange of written submissions between the parties for the adjudication, together with the written reasons for the determination which the adjudicator is required to provide, are sufficient for purposes of forming an appeal record.  For this reason, the High Court held that it is sufficient for the appeal to be brought by way of a notice of appeal, which sets out the grounds of appeal, as opposed to being brought by way of a notice of motion supported by affidavit(s) as previously suggested in the Shmaryahu judgement.

The High Court eventually made the following order:

1. That an appeal against a CSOS order should be brought by way of notice of appeal where the grounds of appeal are set out succinctly,
2. That the notice of appeal should be served on both the adjudicator and the CSOS by the Sheriff, and
3. While the adjudicator or the CSOS might be expected to abide by the judgment of the court, nothing precludes them from filing a report for the court in respect of any aspect of the law which they might consider to be helpful to the court.

Article reference: Paddocks Press: Volume 15, Issue 1

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