On 14 March 2023 the Community Schemes Ombud Service (the ‘CSOS’) issued a Draft Practice Directive on s39(7)(b) of the Community Schemes Ombud Services Act, 2011 (the ‘CSOS Act’).
The Executive Summary of this Draft Practice Directive reads as follows:
“As encapsulated in S36(1) of the Community Schemes Ombud Service Act, 2011 (the CSOS Act), the chief ombud must issue practice directives regarding any matter pertaining to the operation of the Service. Further, S36(2) provides that the practice directives must, subject to the CSOS Act and the regulations, direct the performance of any act in the operation of the Service.
Accordingly, in terms of S39(7)(b) of the CSOS Act, this practice directive seeks to determine ‘any other order proposed by the chief ombud’. This includes relief to be sought and other orders not provided for but, related or incidental to orders already provided in and through S39 of the CSOS Act.” (My underlining for emphasis).
The Draft Practice Directive goes on to propose 12 new prayers for relief and orders in respect of section 39(7)(b) of the CSOS Act, which, if the Draft Practice Directive is finalised, will purport to expand the scope of adjudication orders provided for in section 39 of the CSOS Act.
Is the Chief Ombud legally entitled to do this?
I see two sides when trying to determine the answer.
A) On the one side, in favour of the CSOS, there is an argument that:
- The Chief Ombud should have the authority to expand the scope of orders through practice directives to address new and emerging issues in community schemes that may not have been anticipated by the legislature when drafting the CSOS Act. This would allow the CSOS to be more flexible and adaptable in resolving disputes.
- Allowing the Chief Ombud to expand the scope of orders through practice directives could potentially streamline the dispute resolution process by providing additional avenues for relief that may not be available under the current provisions of Section 39 of the CSOS Act.
- Section 39(7)(b) of the CSOS Act allows the Chief Ombud to propose ‘any other order’, so why can’t they issue a practice directive, which the Chief Ombud is entitled to do under section 36, creating 12 new orders?
B) On the other side, against the CSOS, there is an argument that:
- Effectively adding 12 new orders to section 39 of the CSOS Act is beyond the jurisdiction of the CSOS and the Chief Ombud as it purports to amend and expand section 39 of the CSOS Act. Any expansion of the scope of orders that CSOS adjudicators can make requires an amendment to the CSOS Act itself, which can only be done through the legislative process. Allowing the Chief Ombud to expand the scope of orders through practice directives could be seen as an encroachment on the legislative function, which is reserved for the legislature and as such, breaches the separation of powers principle. The principle of separation of powers is a cornerstone of democratic governance, and it is embedded in the Constitution of South Africa Act, Act No. 108 of 1996 (the ‘Constitution’). This doctrine separates the powers of government into three branches dealt with in three different Chapters of the Constitution: legislative (the National Assembly and the National Council of Provinces), executive (the organs of state government, including the CSOS), and judicial (the courts that interpret and apply the law). This principle serves to prevent abuses of power and to safeguard democracy by ensuring that no single body has unduly extensive or absolute authority.
- Section 39 is a numerus clausus (a closed list) of orders provided for by statute which limits the CSOS’s jurisdiction to the orders contained in that provision, and the purpose of section 39(7)(b) is to provide flexibility to the Chief Ombud in addressing unique or unforeseen issues that may arise in specific cases, allowing them to propose additional orders tailored to the particular circumstances of a dispute brought to the CSOS under one of the prayers for relief listed in section 39(1) – (7)(a). As such, section 39(7)(b) of the CSOS Act does not entitle the Chief Ombud to publish a practice directive that includes 12 new orders that CSOS adjudicators can make. The provision allows the Chief Ombud to propose additional orders in the context of specific applications made under Section 38, but it does not grant the authority to unilaterally expand the scope of orders that CSOS adjudicators can make in general.
- The role of a practice directive is to provide clarity on the operations of the CSOS, and in this context particularly how the CSOS will act so as to implement the provisions of the CSOS Act and its regulations to the CSOS’s staff, the disputing parties, and other interested persons. Practice directives cannot alter or expand the substantive provisions of the CSOS Act which is what is required to create 12 new standing adjudication orders. Nor can a CSOS practice directive interpret the provisions of the CSOS Act or its regulations; only the High Court can interpret the law.
In conclusion, while there may be arguments for allowing the Chief Ombud to expand the scope of orders through practice directives, the principle of separation of powers suggests that the Chief Ombud is not legally entitled to do so. The scope of orders provided for in Section 39 of the CSOS Act should be amended by the legislature if it is deemed necessary to include new categories of orders not currently listed in the CSOS Act.
Article reference: Paddocks Press: Volume 18, Issue 5.
Jennifer Paddock is a dual-qualified lawyer with experience working as a strata title managing agent and solicitor in New South Wales. Prior to this, she served as a specialist sectional title attorney and practice manager at Paddocks for five and a half years. She brings a wealth of knowledge and expertise to the Paddocks team. Contact her at email@example.com.
This article is published under the Creative Commons Attribution license.