Supreme Court of Appeal Confirms: CSOS Does Not Oust High Court Jurisdiction

By Auren Freitas dos Santos

In a long‐awaited and important ruling handed down on 17 October 2025, the Supreme Court of Appeal (“SCA”) has laid to rest the uncertainty surrounding the jurisdiction of the High Court in disputes falling within the Community Schemes Ombud Service Act 9 of 2011 (“CSOS Act”).

The SCA has confirmed that the CSOS Act does not oust the High Court’s inherent jurisdiction, and litigants may approach the High Court as a court of first instance without needing to demonstrate “exceptional circumstances.”

The Background

Many courts had relied on the earlier case of Heathrow Property Holdings No 3 CC v Manhattan Place Body Corporate and Others handed down on 1 June 2021 in which the Western Cape High Court held that the High Court should decline to entertain matters covered by the CSOS Act unless “exceptional circumstances” were shown. That approach became a significant barrier and created uncertainty for parties to community‐scheme disputes.

In August 2024 I published an article entitled “Challenging the Heathrow Judgment: High Court Jurisdiction over Community Scheme Disputes” in which I argued:

1. The CSOS Act was intended to provide an additional dispute‐resolution mechanism, not an exclusive one;
2. The High Court retains jurisdiction and cannot decline to hear a matter solely because the CSOS is available;
3. The Heathrow decision misinterpreted legislative intent and undermined access to justice.

What the SCA Has Now Ruled

In the matter of Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owners’ Association and Others, the SCA set out the following key findings:

1. The CSOS Act does not expressly or implicitly deny the High Court its inherent jurisdiction to hear community-scheme disputes.
2. The existence of the CSOS and its broad powers does not automatically mean that the High Court is excluded.
3. The previous requirement of “exceptional circumstances” before the High Court could act in first instance is no longer good law.
4. Parties have a genuine choice: they may approach the CSOS or proceed in the High Court, depending on strategy, urgency, complexity, or preference.
5. South African law presumes courts retain jurisdiction unless expressly excluded — and no such exclusion appears in the CSOS Act.

Why This Is Important

This ruling brings welcome clarity and confirms that litigants cannot be forced into the CSOS via procedural handcuffs when they reasonably prefer the High Court. The SCA’s decision achieves the following:

1. Overrules all High Court judgments in the various provincial divisions that followed Heathrow, and applies uniformly across South Africa;
2. Supports the position taken in my previous article that the High Court’s jurisdiction remains intact and that litigants are free to choose their forum.
3. Overrules the restrictive Heathrow approach, removing the need to demonstrate “exceptional circumstances” as a precondition to High Court access.
4. Restores legal certainty and enables owners, associations, attorneys and managing agents to confidently make strategic choices about where to litigate.
5. Promotes access to justice, ensuring parties are not compelled into CSOS merely because it is perceived as cheaper or more convenient.

Practical Implications Going Forward

1. Practitioners and parties should now treat the High Court as a viable first-instance forum for community-scheme disputes without needing to exhaust CSOS remedies first or demonstrate “exceptional circumstances”.
2. Strategy will focus less on procedural forum debates and more on substantive merits, costs, urgency and complexity.
3. The CSOS remains a valuable, accessible alternative—but it is not the only path.

Conclusion

With this decision, the SCA has decisively clarified the law: the CSOS Act does not oust the High Court’s jurisdiction in community-scheme disputes. In doing so, it has confirmed the view I published in August 2024 and restores certainty and flexibility for legal practitioners, owners, trustees and community schemes.

For those interested in the original analysis published in August 2024, the full article is available here. Notably, it was also referenced in a judgment handed down by the North Gauteng High Court, Pretoria, on 25 July 2025.

If you have any questions regarding this topic, feel free to contact us at info@theadvisory.co.za for a no-obligation quote.

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  for a no-obligation quote to discuss this topic in more detail.