By Bennie van Dyk – Senior Operations Manager: Community Schemes Management
When living in close proximity to each other, it only follows that conflict will arise at some point. How you deal with such conflict will determine the character of your community scheme and eventually the value of your investment.
When should a dispute be referred to the governing body of the scheme?
While you reside in a communal scheme that is managed by the governing body elected by all members, individual owners still have responsibilities concerning resolving a breach of the rules. Only where the complainant is unable to resolve the matter, and the breach is regarded as being against the body corporate/association and not against an individual owner, the governing body, on behalf of the community scheme, would proceed with legislated mechanisms of recourse. Quite often, these matters can be resolved amicably by the individual parties concerned without the involvement of the body corporate/association. When a community scheme becomes involved, it might incur liabilities on behalf of all owners where legislated mechanisms of recourse are followed.
One can divide disputes as personal transgressions and scheme transgressions. Personal transgressions affect you personally such as noise nuisance, parking space disputes, etc. Scheme transgressions affect the whole community such as badly maintained property, unapproved improvements, etc.
In the case of a personal transgression, approach the person yourself and attempt to resolve the matter amicably. Where required, get the SAPS to address the compliant and obtain a case number. Keep proper record of time and occurrences for future reference. If breach continues, forward a formal complaint to governing body of the scheme.
In the case of a scheme transgression, lodge a formal complaint to the governing body specifying the times, dates, and type of offence. The same will apply when referring a dispute to the CSOS. The more information and evidence provided, the quicker the matter can receive focused attention.
The governing body will evaluate complaints received and if not for their action, the complaint should be referred to CSOS by the complainant.
If the governing body decides to take up the dispute, the following process will be followed:
- A formal Conduct letter will be sent to the defaulting party.
- Should the breach continue, a meeting between the parties involved is recommended. The Audi Alteram Partem rule applies – “let all sides be heard”.
- Should the breach continue, a penalty in terms of the rules may be applied at the discretion of the governing body. Where the defaulting party disagrees with the dispute, legal adjudication is recommended prior to implementing any penalties.
Where a member of the governing body is also the complainant, that person should not be involved in the decision on the penalty, if any, to be imposed. The Nemo Iudex in Causa Sue rule applies – “no-one should be judge in his own cause”.
When referring a dispute to CSOS, it is of utmost importance to complete the required form correctly. This can be done online, and the form is available on the CSOS website.
- Make sure the correct party/parties are listed against which the dispute is declared as you cannot make a finding against a party not listed, nor can you add a party later during the dispute process.
- Be clear on what the dispute relates to. This is important as it will indicate what rules and regulations are relevant when resolving the dispute.
CSOS has 7 categories, i.e. financial issues, behavioural issues, governance issues, meetings, management services, work pertaining to private areas and common property, and general issues.
- When lodging a dispute with CSOS, the applicant must also clearly indicate the relief they sought, and it must be within the scope of Section 39 of the CSOS Act.
This said, the first and preferred course of action would be the amicable solution of the conflict between the complainant and the party in breach. Reaching an agreement this way will contribute to the overall goodwill between residents.
