1. The Supreme Court of Appeal on 17 October 2025 delivered a judgment which has given much needed clarification on the process to resolve disputes in community schemes, in the matter of Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owner’s Association and Others (171/2024) [2025] ZASCA

2. The appeal arose from a dispute in the Summervale Lifestyle Estate, a gated retirement village community scheme in terms of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act). The appellant, Parch Properties 72 (Pty) Ltd (Parch), who owns garden cottages adjacent to the main estate on a different erf, applied to the Western Cape High Court for a declaratory order to include her Erf in the HOA's constitution definition of "Area," making Parch a full member with voting rights and access to common property.

3. The opposing members argued the High Court lacked jurisdiction as a first-instance forum, claiming the CSOS Act vests exclusive primary jurisdiction for disputes in community schemes and for that reason submitted that the High Court should not have dealt with the matter in the first instance. They based their argument on previous High Court Judgments, which had held that parties to a dispute within a community scheme should refer the dispute to CSOS, which has specifically been established to deal with community schemes, as opposed to clogging up the courts with such disputes.

4. The Western Cape High Court had appeared to shut the door for the referral of disputes to the courts as a forum of first instance, save in exceptional circumstances, in the matter of Heathrow Property Holdings No 33 CC v Manhattan Place Body Corporate and others 2022 (1) SA 211 (WCC), where the High Court affirmed that disputes arising involving community schemes should primarily be resolved through the Ombud and its adjudicators, “who are required to have suitable qualifications and the necessary experience (not only in relation to the adjudication of disputes, but also in relation to community scheme governance) and thus not by the courts. The court referred to the fact that CSOS adjudicators possess broader and more flexible powers than the High Court, which include equity-based discretion, allowing adjudicators to determine what is "reasonable" and to direct alternative actions where necessary, while the courts lack such fairness-based and remedial powers under common law. According to this judgement the High Court is intended to be a secondary, supervisory forum which is to exercise review and appeal jurisdiction and not adjudicatory jurisdiction.

5. As a result of the Heathrow judgment, parties were required to refer all disputes to CSOS as the forum of first instance, unless the applicant/plaintiff could prove the existence of the vague and elastic concept of “exceptional circumstances”.

6. A further consequence of that judgment, was that in matters which had already been instituted in court, defendants were amending the grounds upon which they opposed the relief that was claimed, to raise a technical defence that the Court did not have jurisdiction to hear the matter as the dispute should have been referred to CSOS. This therefore created further uncertainty with matters which were pending at court.

7. Other than in exceptional circumstances, the consequence of the Heathrow judgment was therefore to limit the High Court’s jurisdiction in community scheme disputes to either appeals or reviews of CSOS adjudication awards. The grounds upon which a CSOS award can be taken on appeal is however extremely limited in ambit. In this regard in terms of Section 57(1) of the CSOS Act, a party, who is dissatisfied by an adjudicator’s order, may appeal to the High Court, but only on a question of law, which substantially limits the rights of a party to take issue with the award. The alternative would be to take the adjudicator’s award on review in terms of the Promotion of Administrative Justice Act 3 of 2000, which is also very limited in scope to the grounds upon which an administrative decision can be taken on review.

8. Thus, having gone through the expedited adjudication process at CSOS, the award of the adjudicator would for better or worse constitute the end of the road for the parties to that dispute, unless there were those limited grounds to take the award on appeal or on review, which was a highly unsatisfactory state of affairs. In addition, many disputes do not lend themselves to resolution in this rough and ready adjudication process and should rather be dealt with through the tried and tested adversarial court process.

9. In the Heathrow judgment the court however did go on to say that in the absence of a definitive ruling from the Supreme Court of Appeal or the Constitutional Court, the final word on the issue of the ambit and limits of concurrent jurisdictions had yet to be spoken.

10. The Supreme Court of Appeal in the Summervale Lifestyle Estate Owner’s Association matter, has now spoken.

11. The SCA in the abovementioned judgment unanimously held that the High Court retained concurrent jurisdiction as a court of first instance, rejecting any implied ouster of jurisdiction and that the court did not need the elusive exceptional circumstances to hear a matter, as held in the Heathrow matter.

12. In its reasoning the SCA took into account the following:

12.1 The wording of Section 38(1) of the CSOS Act, which stipulates any person who is a party to or affected by a dispute, may make an application to the Ombud, which “indicates is a clear indication of a choice of forum”.

12.2 The fact that CSOS Act does not explicitly or implicitly exclude the High Court's jurisdiction. In this regard it held as follows:

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.

12.3 Citing previous judgements, the SCA reaffirmed a "strong presumption against the ouster of the High Court’s jurisdiction." The SCA held that the mere vesting of powers in the Ombud (with broader remedies under s 39, e.g., declaring motions unreasonable) does not imply exclusion of courts.

13. In the circumstances the court held that Parch, as a non-member owner with a material interest, validly exercised this choice by approaching the High Court directly.

14. The broader impact of SCA judgment is that the doors have thus once again been opened to parties to refer disputes arising from community schemes to the courts as a forum of first instance for determination. The SCA has clearly affirmed that CSOS plays a complementary role to the court system and entitles and empowers the parties to choose the most appropriate forums for the resolution of their dispute and specifically in complicated matters or in matters which could have far-reaching consequences for an owner’s party’s property rights that requires the High Court’s attention. Many disputes involve complicated legal issues and do not require or lend itself to equity-based discretion or determining what is "reasonable" in terms of the SCA judgement A party’s right to take judgements on appeal on “traditional grounds”, as any other litigant, if deemed necessary, has thus been restored, as opposed to having to navigate the very limited grounds upon which a CSOS award can be challenged.

15. The upshot of the SCA judgment, is that the High Court can thus no longer refuse to entertain a dispute arising from a community scheme or between parties residing in a community scheme. The same would apply to a magistrate’s courts.

16. The judgement should not have the consequence of matters now being diverted en masse to the courts instead for determination, thereby defeating one of the very purposes of the CSOS Act and leaving adjudicators at CSOS sitting idle. The courts can and should discourage disputes being instituted at court, where CSOS would have been the more appropriate forum. If the court were to conclude having regard to the nature of the dispute, that the party, which instituted the proceedings, should have referred the dispute instead to CSOS, then it can make an appropriate cost order as proposed in an earlier Western Cape High Court matter of Coral Island Body Corporate v Hoge 2019 (5) SA 158 (WCC), before the Heathrow judgement upset the proverbial community scheme applecart.

17. In short, a party to a dispute arising in a community scheme is entitled to choose the most appropriate forum and must do so with full consideration of the nature of the dispute, the relief sought and the purposes and ambit of the CSOS Act. 

Contact Antony Arvan for assistance with property-related disputes.