A High Court ruling has highlighted the limits of relying on previous Community Schemes Ombud Service (CSOS) adjudications to bring disputes to an end.
Source: Supplied.
The case, involving a body corporate, its managing agent, section owners and a company operating two nightclubs, followed an earlier CSOS decision.
According to Johlene Wasserman, director of community schemes and compliance at Van Deventer Dowlath & Marx Inc, the judgment underlines why trustees, managing agents and homeowners’ associations need clear records and processes when handling complaints that may resurface as new disputes.
“The case centred around some of the sectional-title scheme’s owners and the managing agent who believed that the body corporate was protecting a company that ran two noisy nightclubs on the premises. They also claimed that the company owed money, broke rules, and caused problems for residents,” explains Wasserman.
“The applicants approached the High Court alleging that the trustees had failed to take proper action. The body corporate argued that an earlier CSOS adjudication prevented the issues from being raised again. The Court disagreed. It found that the earlier adjudication had not determined all of the issues subsequently raised and, in relation to the issue it had determined, that it would not be equitable in the circumstances to prevent the applicants from pursuing it.”
The key lesson, she states, is that an earlier CSOS adjudication does not automatically dispose of every later dispute arising from the same underlying conflict. “The precise issue previously determined, and whether it is fair to treat that determination as final between the parties, remain important.”
Why the judgment matters
Directors, trustees and managing agents must be able to show what complaint was made, what documents were considered, what decision was taken, and why, says Wasserman. “This is particularly important where complaints contain allegations of trustee inaction, unpaid amounts, conduct rule enforcement, zoning, nuisance or the treatment of a particular owner or occupier.”
Nor does an owner become vexatious because they lose a case, she emphasises. “An unsuccessful application does not, by itself, take away their right to raise a genuinely new dispute based on new facts. Often, it is the persistent owners who expose governance failures, so the word ‘vexatious’ cannot simply be used as a label for anyone who is outspoken or difficult.”
The proper question, she asserts, is whether this is a genuinely new dispute based on new facts, or an issue that has already been decided being repackaged and raised again.
The CSOS process
Section 53 of the Community Schemes Ombud Service Act allows an adjudicator, after investigation, to dismiss an application that’s frivolous, vexatious, misconceived or without substance. When considering a costs order following such a dismissal, the adjudicator must also have regard to previous applications brought by the applicant.
And if an application is dismissed on one of these grounds, an adjudicator may award costs to the respondent, currently capped at R5,000, Wasserman says.
“While this amount won’t usually cover the real expense of defending repeated disputes, the more important result may be the actual finding. An order that found the proceeding to be frivolous, vexatious, misconceived or without substance could become important evidence if the same pattern continues.”
Further, she says CSOS can’t fine an owner just for being difficult. “Section 53 is mainly about dismissing a flawed application and awarding limited costs. It is not a general power to punish someone merely for complaining, and section 53 does not itself provide for a blanket prospective prohibition on an owner bringing future disputes.”
Repeated litigation
While the second case doesn’t involve property, Wasserman says the Constitutional Court’s ruling in Motjamela v George Local Municipality [2026] ZACC 31 confirms another important principle about repeated proceedings.
“This case involved a temporary municipal employee who repeatedly instituted proceedings arising from the termination of his employment. The Constitutional Court accepted that a restriction on further vexatious litigation was justified, but held that the High Court’s order went too far. It therefore replaced the broad restriction with a narrower order directed at the particular employment disputes and emphasised that restrictions on litigation must respect access to courts and the safeguards contained in the Vexatious Proceedings Act.”
For community schemes, the two judgments work together, she says. “Living Moad illustrates the need to identify precisely what an earlier adjudication actually determined. Motjamela demonstrates that, even where persistent proceedings justify court intervention, the scope of any restriction must be properly supported by the evidence and consistent with the constitutional right of access to courts.”
Create a record, not another email war: Schemes that deal with regular disputes need to stop treating every new email as if nothing came before it, Wasserman warns. “Instead, they need to create a dispute chronology recording the complaint, the documents requested, the response, the internal process followed, the relief sought, the issue actually decided, the outcome and whether the same point later resurfaced.
"The test is not that this person keeps complaining but rather: here is the history of the issues, the outcomes, any overlap between successive cases, the absence of reasonable grounds, and the protection that is now required.”
How to respond to a complaint
The five steps for responding to a complaint are:
- Centralise complaints instead of allowing the uncontrolled exchanges of emails
- Separate genuinely new disputes from matters that have already been answered or adjudicated
- Use and document the scheme’s internal dispute resolution process
- Where the facts justify it, ask the CSOS adjudicator for a reasoned section 53 finding and a costs order
- Keep every application, response and outcome so that any later court application arising from a pattern of repeated litigation can be precisely framed and properly supported
The High Court has an important role where litigation becomes persistent and abusive, she says. “Under the Vexatious Proceedings Act, where a person has persistently and without reasonable ground instituted legal proceedings in a court or inferior court, the High Court may order that no further legal proceedings may be instituted without its leave. The scope of any restriction must be justified by the evidence before the court.”
Retirement schemes face particular pressure: Repeated disputes can be particularly detrimental for retirement schemes, owing to the amount of trustee and managing agent time involved as well as legal fees and management capacity, which all ultimately have to be paid by the community, says Wasserman.
“The system therefore has to protect two legitimate interests at the same time: the right of a resident to have a genuine grievance heard, and the right of the rest of the community not to pay for the continuous re-litigation of matters that have already been fairly determined.”
The objective is not to silence owners, she concludes. “It is to restore finality while preserving access to justice. A legitimate dispute deserves a fair hearing, but it does not necessarily deserve an infinite number of them.”
