Alternative dispute resolution in community schemes : the statutory intervention

Abstract

In order to utilise land resources optimally and adhere to the need of residential accommodation that recognises the social, economic and psychological needs of society, the use of various community schemes seems to flourish in South Africa. In terms of the Community Schemes Ombud Service Act 9 of 2011, community schemes include any sectional title scheme, share block company, house or property owner's association established to administer a development, housing schemes for retired persons and any other scheme or arrangement in terms of which there is shared use of and responsibility for parts of land and buildings. The most favourable scheme seems to be sectional title schemes as it is estimated that there are more than 780 000 registered sectional title schemes in South Africa. However, these types of housing schemes often pose difficulties in resolving disputes between members inter se and members and the governing body, resulting in expensive and time-consuming litigation. By virtue of the fact that the Department of Land Affairs, which administers the Sectional Title Act 95 of 1986, experienced a backlog regarding numerous complaints arising from the management and operation of sectional title schemes which could not be alleviated effectively by means of arbitration, the need for a recognised mechanism became clear. Therefore, the Department of Land Affairs lodged an investigation into the separation of consumer issues from registration issues together with the possibility of an ombud to attend to disputes that may arise in community schemes. This investigation led to the enactment of the Sectional Titles Schemes Management Act 8 of 2011 and the Community Schemes Ombud Service Act 9 of 2011 on 7 October 2016. Consequently, the Ombud Service, which has been established in terms of the Community Schemes Ombud Service Act 9 of 2011, has jurisdiction to settle disputes which may arise from sectional title schemes, share block schemes, time sharing schemes, retirement schemes and other communal residential schemes. The Sectional Titles Schemes Management Act 8 of 2011 separates management and consumer affairs from registration and survey aspects of the Sectional Titles Act 95 of 1986. This dissertation provides a critical analysis of the effectiveness of the Sectional Titles Schemes Management Act 8 of 2011 and the Community Scheme Ombud Service Act 9 of 2011