Navigating sectional title disputes: Choosing between ombud and court

Dear Conviction 

I was wondering if you could advise me on a sectional title matter. I have a dispute in my complex, and I have heard that I can escalate it to the Community Schemes Ombud Service. 

However, I also read that the same dispute can be taken to court. My question is: how do I know if the dispute falls under the Ombud’s jurisdiction or if it should go to court? I am asking because I understand that the Ombud does not allow legal representation. 

Ashwini Singh provides the following insight:

The Community Schemes Ombud Service can only handle sectional title disputes that fall within the ambit of the relief prescribed in Section 39 of the Community Schemes Ombud Service Act 9 of 2011. 

If a dispute cannot be resolved through the prayers for relief outlined in Section 39, it is likely a matter for the court. In such a case, consulting an attorney specializing in sectional title and property law is advisable. It is also important to note that the Ombud cannot provide relief that falls under the jurisdiction of any other legal authority.

For instance, a person cannot institute a delictual claim for damages with the Ombud, as this is a civil remedy that must be proven on a balance of probabilities in court. Similarly, some courts have specific statutory functions that the Ombud cannot perform. For example, only a High Court can issue a Declaratory Order under Section 21 of the Superior Courts Act 10 of 2013. Therefore, declaratory relief cannot be provided by the Ombud, as this is (by statute) a function of a superior court. 

If you are uncertain, it is always wise to consult a legal practitioner who specializes in sectional title matters for further advice on the appropriate legal forum for your dispute. 

Singh is a law academic and an affiliate of the Association of Certified Fraud Examiners, South Africa.

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