Dispute Resolution in Sectional Title Schemes: Ideas for Improving the Ombud Service

Abstract

Dispute resolution in sectional title schemes in South Africa has come a long way – from litigation, to the arbitration mechanism introduced by management rule 71, to referral to the Ombud Service created by the Community Schemes Ombud Service Act 9 of 2011 (the CSOSA). The two-stage dispute resolution mechanism provided by the Ombud Service, comprising conciliation and adjudication, has undoubtedly reduced the number of sectional title disputes reaching our courts. It also saves applicants time and money. However, judging by case law of matters that, having gone through the Ombud Service process, ended up in court for clarity, there is room for improvement in the implementation of the CSOSA and the operation of the Ombud Service. This article first examines selected case law to highlight some practical challenges detracting from the effectiveness of the CSOSA and its dispute resolution system. Secondly, a comparison between the CSOSA and New South Wales's Strata Schemes Management Act 50 of 2015 offers further insight into how the South African system may be streamlined. Key recommendations relate to the training requirements for adjudicators and other staff of the Ombud Service, as well as the introduction of a provision that specifically deters court applications where disputes can and should be resolved by the Ombud Service. An internal appeals mechanism, to be conducted by the Ombud Service itself, may also be beneficial – not only to lighten the judiciary's load, but also in light of the current murkiness around the correct way for bringing adjudication appeals to court.