The services we offer in terms of sectional titles, a body corporate or owners:
- Drafting Conduct Rules;
- Representation at CSOS;
- Prepping of parties for CSOS hearings;
- Drafting applications and bundles for CSOS;
- Collection of Levies;
- Representation of parties at courts;
- Representation of parties at meetings;
- Independent appointments at meetings; and
- Sending correspondence;
Sectional titles are currently being governed by the Sectional Titles Schemes Management Act, Act No 8 of 2011. This Act also governs homeowners associations, and full title sectional titles.
There is a lot of confusion and misinformation online regarding sectional titles, which is primarily on account of the fact that the applicable legislation has changed three times since sectional titles became regulated, and various online sources refer to outdated legislation, and not necessarily the current legislation.
Sectional titles were initially governed by the Sectional Titles Act, No. 66 of 1971. This changed on 1 June 1988 with the enactment of the Sectional Titles Act, Act No. 95 of 1986 and the corresponding management regulations. This then changed again in October 2016.
The current Act and corresponding management regulations that have been operative since October 2016 are:
Any information obtained online, where it refers to certain rules, should be cross-referenced with the current Act and Management Regulations, to ensure that what is being read refers to the current legislation, and not the outdated legislation. Information online usually contains references to the abbreviation PMR, which stands for Practice Management Regulations. This is a reference to the Management Regulations linked above. The problem is that both the outdated and the new regulations use the exact same abbreviation as referencing style. The articles on this site all refer to the current legislation, and not the outdated legislation, but any information obtained elsewhere, should be double checked.
It is inevitable that there will be disputes when people live in a small community. The question becomes, where should you refer a dispute, when it arises?
The underlying legal principle in South Africa is that approaching a court should be the absolute last resort. This means that parties are first encouraged to try and settle the dispute among themselves, and then to refer it to an alternative dispute resolution forum, such as CSOS (Community Schemes Ombud Service), if it cannot be settled. It should only be referred to the court if the matter is to complex for CSOS, or if a party is dissatisfied with the ruling of CSOS.
There are certain instances where the dispute can be referred to the High Court first, such as for instance when the dispute is legally complex, and a party should use their discretion wisely. If a party does not use their discretion wisely, they can be penalised by a cost order from the court. In the case of Coral Island Body Corporate v Hoge, the trustees referred a relatively uncomplicated and simple matter to the High Court. The High Court then penalised the trustees by ordering that the parties pay their own fees, meaning that the Body Corporate, even though the body corporate "won", should pay their own fees. The court further reprimanded the trustees by implying that they acted recklessly and that they may even be held personally liable by the body corporate for the legal costs.
The primary differences between CSOS and the courts come down to legal complexity and costs. CSOS is more of an informal forum than the courts are. Legal practitioners are also, on the outset, not allowed to litigate in CSOS, as the intention of CSOS is to "dispense justice between man and man" - which is similar to the principle of the CCMA. There are however exceptions where legal practitioners are allowed, and the following factors, as per section 52 of the Community Schemes Ombud Service Act, No. 9 of 2011, are taken into consideration whether CSOS will grant the right to legal practitioners:
- The nature of the questions of law rasied by the dispute;
- The relative complexity and the importance of the dispute; and
- The comparative ability of the parties to represent themselves in the adjudication.
This is to say that if a body corporate has a trustee with a legal background or experience with CSOS, or if the managing agent has undergone formal training or has sufficient experience at CSOS (which is commonly the case), the owner may have prospects of appointing legal representation, and vice versa.
This is also applicable if the dispute is legally complex in nature, where the appointment of a legal representative may resolve the dispute quicker.
The procedure and atmosphere at CSOS is more informal than that of the courts, but despite this informal nature, the formal rules of evidence and cross-examination still apply. The following acts generally govern most of the rules of evidence that are used at CSOS and the courts:
This means that if you bring evidence along which does not fully conform with this legislation, there is a chance that you will not be able to use it, and if not, you could lose your whole case on the basis of this.
In terms of cross-examination, in addition to the aforesaid, there are also certain principles of the Criminal Procedure Act that are applicable, such as the inadmissibility of hearsay, similar fact evidence, and supposition.
So while legal representation may not necessarily be allowed, it is suggested that an attorney be consulted to help prepare for the proceedings, the cross-examination, the objections that can be made when someone testifies, and the preparation of a bundle with legally admissible documents.