‘Specific performance’ CSOS rulings only enforced by High Courts
Orders handed down by CSOS arbitrators that relate to “specific performance” can be enforced only by the High Court.
A practice directive signed last year by the Community Schemes Ombud Service (CSOS) Chief Ombudsman states that “an adjudication order for specific performance relates to an order that has no quantum or monetary value”.
The directive clarifies the steps to be taken in enforcing an adjudication order. Once those steps have been followed the order can be enforced by the Sheriff of the Court at the cost of the party in whose favour the order has been handed down.
Clause 56 of the CSOS Act envisages enforcement via the Magistrate’s Court or the High Court “as if it were a judgement handed down in that court”. CSOS Directive 2 of 2018 provides additional clarity by stating that “an adjudication order for specific performance can be enforced only in the High Court”.
Specifying the timing and the process to be followed in matters in which the arbitrator’s rulings have not been followed, the directive says “the adjudication order will have an implementation date. In the event that the party against whom the order has been issued has not complied with the adjudication order, the person in whose favour the order is issued must approach CSOS.
“The person in whose favour the order was issued must file with the Clerk of the Magistrates Court or Registrar of the High Court, as the case may be, the following documentation:
- a copy of the adjudicator’s order certified by the Ombud as a true copy,
- if the original cannot be located any relevant form/s required by the Magistrates Court or the High Court to be completed
- the court order to be endorsed by Clerk of the Magistrates Court or Registrar of the High Court.
“Once the Clerk of the Magistrates Court or Registrar of the High Court has issued the order and allocated a case number, the party may submit the order to the Sheriff of Court for further execution. CSOS will not be involved in this process and the party will bear the costs related to the execution of the order.
“An application for enforcement lodged with the Magistrates Court or High Court is not an appeal or a re-hearing of the merits of the original application,” the directive states.
The right of appeal (but only on a question of law) in terms of clause 57 of the CSOS Act remains whereby “an applicant, the association or any affected person who is dissatisfied by an adjudicator’s order may appeal to the High Court. An appeal against an order must be lodged within 30 days after the date of delivery of the order of the adjudicator. A person who appeals against an order may also apply to the High Court to stay the operation of the order appealed against to secure the effectiveness of the appeal.”
Under a heading Amendment of Adjudication orders, the directive stipulates that an adjudicator “has no legal capacity to review or amend a final adjudication order or reason for the judgement once issued, except where directed to by a court or under circumstances set out in clause 25.3 of the CSOS Act. Where an order or a statement of reasons contains an accidental grammatical error or omission, such as a typo or spelling mistakes, an adjudicator has an inherent power to issue a further order correcting the error. The capacity to correct accidental errors is limited to correctly stating what was decided and intended at the time of the original judgment. It does not extend to a reconsideration of the substantive issues of fact or legal interpretation and is not a mechanism to re-open an application to consider further evidence.”
Referring to urgent matters, the directive states that an applicant can ask for a hearing to be held urgently provided that strong reasons can be provided to show that there is genuine urgency. If it is later found that the matter was not urgent, the Ombud has the right to order the applicant to pay costs.
Grounds for an urgent hearing include an immediate or serious health or safety risk, depravation of essential services not limited to disconnection of water and electricity, and access to the scheme by unit owners or occupiers.
“The fact that the applicant has failed to take appropriate or necessary action to address an issue over time does not necessarily create emergency circumstances,” the directive states.
Regarding public access to information about orders made by adjudicators (Section 58 (2) of the CSOS Act), the directive re-iterates the fact that all correspondence and documents sent to the CSOS may also be accessible to members of the public. However, the directive states, anyone requesting copies of adjudication orders must pay the prescribed access fee even if the CSOS has waived the application fee.
The directive includes a code of conduct for conciliators and arbitrators. No such code for them was included in the CSOS Act.
* The objective of a practice directive is to provide further information on the procedures and content requirements for dispute resolution applications lodged with the CSOS.
Words: Blake Wilkins