Community schemes such as homeowners’ associations (HOAs), sectional title schemes and lifestyle estates are now a defining feature of South African property ownership. With shared rules, levies and common facilities come inevitable disputes. A recurring and important legal question is this: “Must disputes between homeowners and homeowners’ associations first be referred to the Community Schemes Ombud Service (CSOS), or can parties approach the High Court directly?”.

In October 2025, the Supreme Court of Appeal (SCA) provided authoritative guidance on this issue in Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owners’ Association and Others. This judgment offers welcome clarity for homeowners, trustees, developers and legal practitioners alike.

The Background: A Dispute Within a Lifestyle Estate

The dispute arose within a retirement lifestyle estate in the Western Cape. A developer sought to have an adjacent development formally incorporated into the existing homeowners’ association by amending the association’s constitution. When the required majority of members refused to approve the amendment, litigation followed.

Among other issues, the developer asked the High Court to declare that the refusal to amend the constitution was unreasonable — a form of relief expressly contemplated in section 39 of the Community Schemes Ombud Services Act 9 of 2011 (the CSOS Act).

Certain homeowners opposed the application, arguing that the High Court lacked jurisdiction. Their position was simple: because the CSOS Act provides a specialist dispute-resolution mechanism, the matter had to be referred to the Ombud first, and the High Court could only become involved on appeal or review.  This jurisdictional challenge ultimately reached the Supreme Court of Appeal.

The Role of CSOS: A Specialist but Not Exclusive Forum

The CSOS Act was enacted to provide an accessible, informal and cost-effective mechanism for resolving disputes within community schemes. It empowers the Ombud to grant wide-ranging relief, including orders declaring conduct or governance provisions unreasonable. Importantly, however, the Act does not expressly state that the High Court’s jurisdiction is excluded.

The SCA reaffirmed a long-standing constitutional principle: there is a strong presumption against the ouster of the High Court’s jurisdiction. Parliament must use clear language if it intends to deprive the High Court of its power to hear a category of disputes.

The Court held that the CSOS Act was designed to co-exist with the courts, not to replace them.

A Choice of Forum, Not a Jurisdictional Barrier

The SCA made it clear that parties to a community-scheme dispute generally have a choice of forum:

• They may approach the CSOS Ombud, particularly where disputes are routine, fact-based or capable of inexpensive resolution; or
• They may approach the High Court directly, even as a court of first instance.

Crucially, the Court rejected the notion that “exceptional circumstances” are required before the High Court may hear such matters. The High Court’s jurisdiction exists by default and is not dependent on the Ombud first declining to act.

In the words of the SCA, the fact that the Ombud enjoys wide statutory powers does not imply that the High Court’s jurisdiction is excluded.

But There Is a Catch: Costs and Judicial Discretion

While confirming the High Court’s jurisdiction, the SCA echoed earlier warnings from the courts. Litigants should not lightly bypass CSOS where the dispute is well-suited to that forum.

Courts retain a discretion to express their disapproval through cost orders, particularly where parties rush to court with matters that could have been resolved more efficiently by the Ombud. In appropriate cases, even a successful litigant may be penalised in costs for choosing the wrong forum.

Why This Judgment Matters

This decision has significant practical implications:

• Homeowners and trustees now have clarity that approaching the High Court is not procedurally barred simply because CSOS exists.
• Developers and associations can litigate complex, high-value or precedent-setting disputes without first navigating the Ombud process.
• Legal advisers can assess forum strategy based on substance, urgency and complexity — not jurisdictional fear.

At the same time, the judgment reinforces the policy objectives of the CSOS Act: disputes should be resolved proportionately, with due regard to cost, accessibility and the interests of the broader community.

Final Thoughts

The SCA’s ruling strikes a careful balance. It preserves access to courts — a cornerstone of constitutional justice — while recognising the valuable role played by specialist statutory bodies such as CSOS.

For participants in community schemes, the message is clear: CSOS is an important option, but it is not a gatekeeper to the courts.

If you are involved in a dispute within a homeowners’ association or community scheme, early legal advice is essential to determine not only the merits of your case, but also the most appropriate forum in which to pursue it. Contact us to assist you.