Understanding Jurisdiction and Reasonableness
By Rudi Jack Heerschop, (Director) and Dilen Heerschop (Associate Attorney) at Heerschop Pienaar Attorneys.
In the world of community schemes, the path to justice is often paved with choices and rarely in a straight line. When disputes arise, stakeholders are faced with a fork in the road – should they approach the Community Schemes Ombud Service (CSOS), or take their matter directly to court?
The Supreme Court of Appeal has provided long- awaited clarity by confirming that both forums are open and available, immediately and without restriction, but with choice comes responsibility, and the SCA has also
weighed in on what constitutes a “reasonable” refusal in the context of scheme governance.
Disputes in community schemes are seldom straightforward. Whether the issue is an amendment to governance documents, a challenge to scheme administration, or a clash of members’ interests, stakeholders often find themselves at a crossroad – should they pursue relief through the Community Schemes Ombud Service (“CSOS’”) or to head straight to the courts?
Equally, those aggrieved by a decision (or indecision) often grapple with the question: what makes a decision “reasonable” in the eyes of the law?
In the recent judgement of Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owner’s Association and Others (171/2024) [2025] ZASCA 155 (17 October 2025) (“the Summervale-matter”), the Supreme Court of Appeal (“the SCA”) was tasked with answering these two burning questions head-on.
Does CSOS have executive jurisdiction?
For many years, it was widely alleged that the Community Schemes Ombud Service Act (“the CSOS Act”) required parties to exhaust Ombud remedies before approaching the courts. This myth has now finally been dispelled.
In the Summervale matter, the SCA held that the CSOS Act was designed to co-exist with the judicial system, not to replace it. Parties, therefore, have a genuine and unencumbered choice of forum between the Ombud or the courts.
The SCA’s reasoning was clear: unless a statute expressly excludes the courts, and its powers remain intact. To this end, it was determined that a court’s jurisdiction is not ousted by the CSOS Act.
Considering the foregoing, the mere existence of the Ombud does not, in any sense, imply that the court’s authority no longer exists.
In conclusion, this judgement confirms that parties may elect to resolve disputes either through the Ombud (if the CSOS Act caters for such a dispute) or by approaching the courts directly, regardless of the nature and complexity of the matter.
Stakeholders are therefore encouraged to take a value-driven approach, by weighing the strategic advantages of each forum before deciding where to institute proceedings.
What constitutes a “reasonable” refusal or decision?
The Summervale-matter also required the SCA to clarify what “reasonableness” means in the context of a decision, or refusal to adopt a resolution, by the members of a community scheme.
The dispute centred on whether a neighbouring erf and its owners could become members of the community scheme by introducing amendments to its Constitution that supports such membership, and whether the existing members’ refusal to adopt such an amendment was reasonable.
The objective (or reasonable person) doctrine was adopted by balancing all relevant factors pertaining to the refusal, including the interests of all owners and occupiers of the community scheme.
On the facts, the SCA found that the refusal to amend the constitution was reasonable, given legitimate concerns about the character of the retirement village and the impact of indiscriminate rentals.
Importantly, the SCA emphasised that the test is not whether a decision is “correct”, but whether it is objectively reasonable in the circumstances. In practice, this would mean that reasonableness will always be assessed by weighing all relevant factors and interests.
For role-players, the takeaways are clear: choice in forum and sets a clear benchmark for what constitutes a reasonable decision.
Scheme executives should ensure that decisions (especially refusals), are well-motivated, fact- based, and properly documented.
Where opposition to any decision is based on legitimate concerns (for example, preserving the scheme’s character, protecting members’ interests, or the like), it is more likely to be upheld as reasonable.
Decisions tainted by bias, conflict of interest, or lack of transparency may be vulnerable to challenges.
Conclusion
The Summervale judgment is a watershed moment for all matters relating to community schemes and community scheme governance. It affirms the right of choice in forums and sets a clear benchmark for what constitutes a reasonable decision.
For managing agents and trustees, the message is clear: act with transparency, document your decisions, and seek guidance when in doubt.
At HP Inc., we don’t just interpret the law, we empower community schemes and stakeholders to make informed, lawful, and strategic decisions.
Whether you are weighing up your dispute resolution options or navigating the complexities of scheme governance, our team stands ready to provide tailored, compliant, and court-ready solutions.
As always, HP Inc. remains your trusted legal partner in all matters relating to community schemes and property governance.