By Auren Freitas dos Santos
On 18 July 2025, the Community Schemes Ombud Service (CSOS) published its long-awaited Consolidated Practice Directive, which aims to replace all prior circulars, guidelines, and directives with a single authoritative source. According to CSOS, “all stakeholders are expected to adhere to the updated practices”.
But what happens when the practices outlined in the Directive conflict directly with the law as interpreted by our courts?
In this first article in our series unpacking the Directive, we look at Chapter 5: Protection of Personal Information and Access to Information, where CSOS outlines its views on how POPIA (Protection of Personal Information Act) and PAIA (Promotion of Access to Information Act) apply to access to information in community schemes.
Unfortunately, the Directive appears to ignore important judicial precedent on the topic and may cause more confusion than clarity.
The High Court Has Spoken — And CSOS Didn’t Listen
In February 2024, the South Gauteng High Court handed down a crucial judgment in a case that had long been awaited by the industry. The dispute centred on whether a body corporate member needs to use PAIA to gain access to information such as bank statements or books of account, or whether their rights under the Sectional Titles Schemes Management Act (STSM Act) are sufficient.
Judge Wilson was clear:
“PAIA is not intended to apply to situations where a duty to disclose information arises from a pre-existing legal relationship between the person seeking information and the person or body holding that information.”
He held that:
- A member’s right to access Body Corporate records arises from Prescribed Management Rule (“PMR”) 26(2) and 27(4), not PAIA.
- Using PAIA in such circumstances is not only unnecessary, but “perverse”.
- PAIA applies only when no specific legal relationship or statutory right exists.
Put plainly: members already have enforceable statutory rights to access many types of scheme records, and PAIA is not the gateway to exercising those rights.
Judge Wilson’s conclusion was not an academic opinion—it was judicial precedent clarifying how POPIA and PAIA must be applied in the community scheme context.
The CSOS Directive Says the Opposite
Despite this clear authority, the CSOS Practice Directive repeatedly insists that requests for information from members must follow PAIA procedures, including completion of Form 2 and the payment of access fees. It also repeatedly states that member consent is required before personal information (including contact details) may be shared, except in narrow exceptions.
For example:
- Clause 16.22 – 16.23: Members must complete a PAIA Form 2 to request information from the scheme.
- Clause 16.24 – 16.25: Members may be charged a fee unless exempt.
- Clause 16.29: Common documents (e.g. minutes, rules, audited financials, books of account, bank statements, insurance policies) may only be provided if Form 2 is completed—despite PMR 26 and 27 entitling members to receive these on written request.
This not only contradicts Judge Wilson’s findings, but completely disregards the PMRs, which are themselves subordinate legislation.
The Fundamental Misunderstanding
The CSOS Directive operates from the assumption that POPIA and PAIA override scheme legislation. This is legally unsound.
The STSM Act and its Regulations (including the PMRs) are specific to the pre-existing legal relationship between members and bodies corporate. When legislation provides for access to certain documents “on request” or “on application,” it is that legislation—not PAIA—that governs the process.
Judge Wilson explicitly warned that using PAIA to regulate access to information already governed by other legislation would lead to:
- Unnecessary administrative burdens, and
- The erosion of statutory rights granted to members under the STSM Act.
In other words, CSOS is directing schemes to encumber access rights that should be readily available—contrary to both law and logic.
The Risk: Misapplication and Legal Challenges
If schemes follow the Directive and deny access to information unless a member completes a PAIA form, pays fees, and obtains consent, they may be acting unlawfully. Worse still, they may find themselves:
- In violation of PMR 26 and 27
- Facing review applications in CSOS or the High Court
- Disregarding binding judicial precedent
Furthermore, Clause 16.13 of the Directive attempts to override section 3(1)(n) of the STSM Act by suggesting that personal information can only be shared “upon consent,” whereas the Act requires trustees to furnish names and addresses “on reasonable request.”
This misinterpretation has serious implications for transparency, governance, and accountability.
Consider a scenario where a group of concerned owners believes the trustees are abusing their powers or acting in a manner contrary to the scheme’s interests. These members may wish to remove the trustees by calling a special general meeting (SGM), as permitted under PMR 17(4)—provided they obtain signatures from at least 25% of the members.
To do this, they need a way to contact other owners. The natural mechanism would be to request the names and contact details of all members in terms of section 3(1)(n) of the STSM Act, read with PMR 27, which entitles members to access these records.
But if the trustees instead follow the Directive and insist that:
- The request must be made using PAIA Form 2,
- And the requester must obtain the individual consent of all other owners,
…the process becomes impossible. The very members they are trying to contact must first consent to their details being disclosed—but without their contact information, there is no way to obtain that consent in the first place.
This is the precise “needless encumbrance” Judge Wilson warned against—one that has no basis in the Constitution, in PAIA, or in the STSM Act. It would effectively cripple members’ democratic rights and shield trustees from accountability, all in the name of privacy protection that does not apply in the context of a statutory access right.
What Should Schemes Do?
Until CSOS amends this aspect of the Directive to align with the law, we advise bodies corporate and managing agents to:
- Follow the PMRs when handling member requests.
- Do not require PAIA forms or fees for information members are entitled to in terms of PMR 26 and 27.
- Recognise that POPIA does not prevent disclosure of personal information where the law requires it and where it is necessary to give effect to a person’s statutory rights.
Closing Remarks
CSOS’s Practice Directive was meant to clarify, not confuse. But Chapter 5, as it stands, undermines the legal position established by our courts.
We echo Judge Wilson’s warning:
“To subject a body corporate member’s rights under the Management Rules to the strictures of PAIA … is a needless encumbrance, without foundation in the Constitution, or in PAIA itself.”
Have Your Say
If you believe that this Directive should be challenged in court, we invite you to let us know. We are currently gauging interest in launching an Review Application in the High Court to set aside these provisions of the Directive on the basis that they are unlawful and in direct conflict with binding judicial precedent.
If you are interested in supporting such a challenge—or would be willing to contribute towards the legal costs involved—please submit your name, scheme name, and contact details to info@theadvisory.co.za. Your input will help determine whether the industry is ready to act collectively to ensure that rights of access to information are preserved.
Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, is a Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law. Reach out to him via email at info@theadvisory.co.za to request an obligation-free quotation if you have questions about special levies in your sectional title scheme.
