Philip John Badenhorst – Candidate Legal Practitioner

Richards Attorneys

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Yes, an order by an Adjudicator can be appealed but there has always been uncertainty regarding the process that has to be followed to appeal an order in terms of section 57 of the Community Schemes Ombud Service Act 9 of 2011 (the “CSOS Act”) since the Act does not outline the process.

In the recent High Court judgement of STENERSEN AND TULLEKEN ADMINISTRATION CC v LINTON PARK BODY CORPARATE AND COMMUNITY SCHEMES OMBUD SERVICE ADJUDICATOR the court was called upon to determine in which category of appeals an appeal brought in terms of section 57 falls; and the process to be followed by an appellant in launching such appeal.

Section 57 deals with each party’s right to appeal and reads as follows:

“(1) An applicant, the association or any affected person who is dissatisfied by an adjudicator’s order, may appeal to the High Court, but only on a question of law.

(2)  An appeal against an order must be lodged within 30 days after the date of delivery of the order of the adjudicator.

(3)  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.”

From this section it is therefore clear that no leave to appeal is required to be given by the statutory body and that no order may be appealed after 30 days have lapsed. The section also provides that only a question of law may be appealed and the court may only consider this and no additional issues. This means that the determination of the facts is left solely to the adjudicator and the appeal court’s powers are limited to whether the adjudicator applied and interpreted the law correctly and properly applied the law to the facts.

The court also dealt with the appeals record after CSOS raised a concern about the costly expense of ensuring that all adjudication hearings are recorded so that they may be transcribed to form part of the appeal record, should the matter ever go on appeal. In this regard the court held that the application filed with CSOS, any subsequent exchange of written submissions between the parties together with the written reasons of the adjudicator are sufficient to form the appeal record. For this reason, the court further stated that it will be sufficient for the appeal to be brought by way of a notice of appeal.

The court prescribed the following procedure for all appeals on the question of law contemplated in section 57 of the CSOS Act:

“1. The appeal should be brought by way of notice of appeal where the grounds of appeal are set out succinctly.

2. The notice should be served on the respondent parties by the Sheriff.

3. Both the adjudicator and CSOS should be cited as respondents.

4. While the adjudicator or CSOS might be expected to abide by the judgement of the court, nothing precludes them for filing a report for the court in respect of any aspect of the law which they might consider to be helpful to the court.”