You can appeal the award on a question of law within a set time period, or now in terms of the
latest Case Law from the Gauteng High Court, you can also take the matter on review.
Under the old Sectional Titles Act 95 of 1986, Management Rule 71 (now obsolete), you were
not entitled to take an arbitration award on appeal. You were only allowed to take it on
review.
This, in essence meant that there must be one or more of the following grounds:
• either the arbitrator displayed bias during the course of the arbitration,
• the arbitrator did not follow the correct administrative procedure,
• or lastly, the arbitrator exceeded his powers.
The Community Schemes Ombud Service Act 9 of 2011 is quite clear about the fact that an
adjudicator’s award is appealable on a question of law, however, is silent on the question of
review.
So, what happens when an adjudicator exceeds his powers and makes an award which he is
not legally entitled to make? The answer lies in the case of Turley Manor Body Corporate
vs Jeseelen Pillay, Ebrahim Patelia and the Community Schemes Ombud Service. Heard
in the first week of March 2020, a judgement was noted by Judge Unterhalter of the Gauteng
High Court.
The case, briefly distilled is as follows.
The parties initially went to a CSOS mediation. It was understood that a settlement was reached
on a question of whether to convert garden areas to exclusive use areas or leave them as
common property.
The settlement agreement referred the parties back to a Body Corporate meeting for a
decision. The Body Corporate then received a letter from the Ombud referring the matter to
adjudication. The adjudicator made an order to the effect that the trustees of Turley Manor
Body Corporate were to register the garden areas as notarial exclusive use areas in terms
of Section 27 of the Sectional Titles Act 85 of 1986.
The Body Corporate took this matter to the High Court, requesting an order that the award
was reviewable. BBM Attorneys, on behalf of the Body Corporate argued that the adjudicator
had no jurisdiction to make the order that he did.
The Judge agreed, and stated that the right to administrative action is lawful, reasonable,
procedurally fair and is in fact a Constitutional right. Further, he submitted that – “A limitation
of a right of appeal entails no limitation of the right to review.”
We welcome this judgement which opens the way to review applications on awards where
the appeal process would not apply.
