Introduction

Community schemes in South Africa are regulated by a specialist dispute-resolution framework established under the Community Schemes Ombud Service Act 9 of 2011 (“the CSOS Act”). One of the core features of this framework is the appointment of adjudicators empowered to make binding orders in disputes arising within community schemes. While these orders are intended to bring finality and cost‑effective relief, the legislature has preserved a limited right of appeal. Section 57 of the CSOS Act provides that a person affected by an adjudicator’s order may appeal to the High Court, but only on a question of law. This article considers the scope of that right, with specific reference to property owners in community schemes, and explains what constitutes an “error of law” justifying an appeal.

Statutory basis for Appeal under Section 57

Section 57 of the CSOS Act states that an appeal may be lodged against an adjudicator’s order to the High Court on a question of law. The section reflects a deliberate legislative choice to limit judicial interference. Adjudicators are tasked with determining factual disputes through an inquisitorial process, and the High Court is not intended to function as a court of rehearing on the facts.

The consequence is that dissatisfaction with an outcome, or disagreement with factual findings, does not of itself found a competent appeal. A property owner must demonstrate that the adjudicator committed an error of law in reaching the decision or in formulating the order.

The nature of an “Error of Law”

An error of law arises where an adjudicator:

• applies the incorrect legal principle;
• misinterprets or misconstrues legislation, rules or contractual instruments such as a memorandum of incorporation or scheme rules;
• fails to apply the law to the facts as found; or
• ignores material and relevant evidence, resulting in a legally incorrect conclusion.

The High Court in Reddy N.O. and Another v Cedar Lakes Homeowners Association NPC and Others (A018904/2022) [2024] ZAGPJHC 468 (Gauteng Division, Johannesburg, 17 May 2024) reaffirmed that a failure to consider relevant evidence may amount to an error of law where it leads to the wrong legal conclusion.

Guidance from Case Law

In Stenersen & Tulleken Administration CC v Linton Park Body Corporate and Another 2020 (1) SA 651 (GJ), the court analysed the scope of appeals under section 57 and held that:

• questions of fact are exclusively within the adjudicator’s domain;
• the appeal court must adopt a deferential attitude to factual findings;
• the court is limited to assessing whether the adjudicator interpreted and applied the law correctly.

The court emphasised that the appeal is confined to whether the legal conclusion reached by the adjudicator was right or wrong on the facts as they appear from the record.

Practical examples of errors of law

Examples of appealable errors of law include:

Failure to consider relevant evidence

In Reddy, the adjudicator failed to consider uncontested evidence demonstrating the inconsistent application of architectural rules by a homeowners’ association. Although evidence had been placed before the adjudicator, it was ignored. The High Court held that such an omission constituted an error of law because section 50(c) of the CSOS Act obliges an adjudicator to consider all relevant evidence.

Misinterpretation of scheme rules

Where an adjudicator incorrectly interprets the wording or scope of conduct rules or architectural guidelines, and that misinterpretation informs the order made, the resulting decision is legally flawed.

Applying the wrong legal test

If an adjudicator applies a standard of fairness, reasonableness, or discretion inconsistent with established legal principles, this amounts to an error of law capable of correction on appeal.

What does not constitute an error of law?

It is equally important for property owners to understand what does not qualify as an error of law. These include:

• mere dissatisfaction with the outcome;
• disagreement with credibility findings;
• disputes about the weight attached to particular facts; and
• attempts to introduce new evidence on appeal.

These matters fall squarely within the factual domain entrusted to the adjudicator and are not susceptible to appeal under section 57.

The alternative remedies where no error of law exists

If a property owner believes that an adjudicator reached an unfair conclusion but cannot demonstrate an error of law, the alternative remedies may include:

• applying for rescission or variation of the order in limited circumstances provided for in the CSOS Act;
• seeking internal remedies within the scheme, such as reconsideration of decisions by trustees or the association; or
• ensuring that future disputes are more comprehensively motivated and supported during the adjudication process.

Judicial review proceedings under the Promotion of Administrative Justice Act are generally excluded, given the specialised statutory appeal mechanism created by section 57.

Conclusion

Section 57 of the CSOS Act offers an important, but narrow, safeguard for property owners in community schemes. It protects against legally incorrect decisions while preserving the finality and efficiency of the adjudication process. Property owners contemplating an appeal must carefully distinguish between factual dissatisfaction and genuine errors of law. Where an adjudicator misapplies the law, ignores relevant evidence, or reaches a legally unsustainable conclusion, the High Court remains empowered to intervene and correct the error. Otherwise, the adjudicator’s findings remain binding and enforceable.

For further assistance, consult an attorney at SchoemanLaw.