Do CSOS Practice Directives have legal force and effect?

By Auren Freitas dos Santos

The release of the Community Schemes Ombud Service Consolidated Practice Directive 1 of 2025 has sparked heated debate across social media. Spanning 170 pages, this document appears to be an attempt by CSOS to centralise and standardise its previously scattered and inconsistently published Practice Directives. While this effort might seem like a step in the right direction, the lack of clear communication and transparency surrounding these Practice Directives has long been a source of frustration for stakeholders.

One of the biggest issues with CSOS Practice Directives is how they are published—or rather, how they aren’t. Instead of following a structured and predictable process, CSOS has often taken an ad hoc approach, sometimes releasing draft directives quietly on Facebook, of all places, for public comment. Even once finalised, there is rarely a clear announcement to the industry that a Practice Directive has come into effect.

One would expect that the CSOS website would be the central hub for finding the latest Practice Directives, but it is often outdated or incomplete. There is no single, reliable source where stakeholders can verify which Practice Directives are current, revised, or repealed. This uncertainty creates serious problems for community scheme management, leaving trustees, managing agents, and owners unsure of which Practice Directives to follow.

Despite this lack of clarity, what we do know is that on 27 March 2025, the Acting Chief Ombud, Kedibone Phetla, published the draft revised and Consolidated CSOS Practice Directive for public comment. Stakeholders have until 4 April 2025 to submit their comments via email to practicedirectives2025@csos.org.za.

While we will be analysing the content of the draft Practice Directive over the coming months—starting with Ane’s article in this month’s newsletter—there is a crucial preliminary question that must be addressed: Do CSOS Practice Directives even carry legal force and effect?

What Is a Practice Directive in Legal Terms?

To determine whether a CSOS Practice Directive is legally binding, we must first define what a Practice Directive is from a legal standpoint. Broadly speaking, legislation falls into three categories:

1. The Constitution – The supreme law of the land, against which all other laws and conduct must be measured.
2. Original Legislation – Acts of Parliament, Provincial Acts, Provincial Ordinances and Municipal Legislation, which derive their authority directly from the Constitution.
3. Delegated Legislation – Regulations, proclamations, and directives made by bodies or officials under the authority of an Act of Parliament.

CSOS Practice Directives fall into the third category—delegated legislation—and must be examined in that context.

Acts of Parliament, such as the Community Schemes Ombud Service Act, 2011 (CSOS Act), are often drafted in broad terms (a “skeleton”), while delegated legislation “adds the flesh” by setting out practical details. However, the power to make delegated legislation is not unlimited—it must be authorised by the enabling legislation and cannot conflict with it.

The CSOS Act provides for two forms of delegated legislation:

1. Regulations (issued under section 29), which have clear legislative force; and
2. Practice Directives (issued under section 36), which raise a more complex legal question.

Does the CSOS Act Give Practice Directives Legal Authority?

Section 36 of the CSOS Act states:

1. Section 36(1): “The Chief Ombud must issue practice directives with regard to any matter pertaining to the operation of the Service.”
2. Section 36(2): “Practice directives must, subject to this Act and the regulations, direct the performance of any act in the operation of the Service.”

A key legal principle in administrative law is that a delegated authority cannot exceed the powers granted to it by its enabling statute. This means that in terms of section 36, CSOS Practice Directives must strictly relate to the “operation of the Service“—a term which is not defined in the Act but which, in ordinary language, refers to the functioning and administration of the CSOS itself—not how community schemes should be governed. In legal terms, these directives are meant to function as internal Standard Operating Procedures for the CSOS, guiding its employees and service delivery.

There are, indeed, legitimate examples in the draft directive that align with this purpose, such as the provisions dealing with:

1. The registration of schemes;
2. The lodgement of rules for approval;
3. The payment and collection of CSOS levies; and
4. The submission of annual returns.

These provisions provide valuable guidance to community schemes in meeting their obligations under the CSOS Act.

However, several provisions in the draft directive go far beyond CSOS’s legal authority, attempting to impose rules that CSOS has no legal authority to enforce. Here are just a few concerning examples:

1. Scheme Governance Under the Disaster Management Act

The directive attempts to prescribe how community schemes must conduct meetings and use common property during a national state of disaster. However, the CSOS Act provides no authority for the Chief Ombud to regulate schemes in this manner, nor does the Disaster Management Act grant CSOS such powers.

2. Appointment of Administrators

The directive suggests that CSOS will allocate administrators from a panel once a magistrate’s court has issued an order for appointment. However, section 16 of the Sectional Titles Schemes Management Act grants no such power to CSOS. The right to propose an administrator belongs to the applicant, and this cannot simply be overridden by a CSOS directive with no legal basis.

3. Approval of Unanimous and Special Resolutions in Non-Sectional Title Schemes

The Practice Directive suggests that CSOS can approve resolutions in homeowners’ associations and other non-sectional title schemes, similar to its role under section 6(9) of the Sectional Titles Schemes Management Act. However, CSOS has no statutory authority to approve resolutions for non-sectional title schemes.

4. Protection of Personal Information (POPIA) and Access to Information (PAIA)

The directive seeks to regulate how community schemes handle personal information under POPIA and PAIA, effectively assuming the role of the Information Regulator. The CSOS Act does not empower CSOS to issue directives on data protection laws—this is squarely within the jurisdiction of the Information Regulator.

Why This Matters and What You Can Do

While some provisions in the draft Practice Directive provide useful operational guidance, several others represent a clear overreach of CSOS’s authority. If these provisions are implemented and enforced, they could be legally challenged and overturned by the courts.

This is why stakeholders must scrutinise the draft Practice Directive carefully and submit comments on any provisions that exceed CSOS’s lawful authority. If left unchallenged, these directives could create confusion, conflict, and unnecessary red tape for community schemes across the country.

We strongly encourage you to review the draft Practice Directive and send your comments to practicedirectives2025@csos.org.za before the 4 April 2025 deadline. Your feedback can help ensure that CSOS operates within its legal mandate and does not overstep its boundaries.

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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 CSOS’s operations.