Litigation as the first choice: You can go to court, but should you?
25 June 2026
Sarah’s Socials | Post 9
What a major SCA case means for community scheme disputes
For anyone living in a sectional title scheme, a Homeowners Association (HOA), or any other kind of community scheme, disputes are a fact of life. Parking. Noise. Maintenance. Money. Governance. At some point, something goes wrong, and you find yourself asking: what do I do now?
Until recently, there was genuine uncertainty about the fundamental question: if you have a dispute in a community scheme, are you required to go to the Community Schemes Ombud Service (“the CSOS”) first, or can you go straight to the High Court?
A case decided by the Supreme Court of Appeal (“the SCA”) in October 2025, Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owners' Association, has given us the clearest answer yet.
The short version: you have a choice. But having a choice does not automatically mean that the court is always the right one.
What the case was about?
Summervale Lifestyle Estate is a retirement village in Strand, Western Cape. A property developer called Parch Properties owned a section of the estate, 55 garden cottages on a neighbouring piece of land, that had never been formally included in the HOA, despite being physically connected to the estate for years.
Parch tried twice to amend the HOA's constitution to include its properties. Both attempts failed at the ballot box, blocked by a group of existing residents (“the Venter group”) who had serious concerns: the garden cottages were being rented to tenants of any age, with no retirement restriction, threatening the retirement character of the estate.
They were also unhappy that Parch stood to gain a share of the HOA's common property, worth an estimated R60 million, for free.
Unable to get the votes, Parch went straight to the High Court rather than first approaching the CSOS. The Venter group argued it had no right to do that.
The SCA disagreed.
What the SCA decided regarding the CSOS-vs-court question
The CSOS Act 9 of 2011 says any person affected by a community scheme dispute "may" apply to the Ombud. The SCA said the word "may" means exactly that: it is a choice, not an obligation. The High Court has its own inherent jurisdiction over disputes like this, and the CSOS Act does not take that away. Parch was entitled to go to court directly.
This is a significant confirmation for community scheme members. You are not locked into the CSOS process. If you believe your matter warrants the attention of a court, because it involves complex legal questions, because it is urgent, or because the other remedies available at CSOS are insufficient, you can go to the High Court.
So why use the CSOS?
Here’s the thing though: having the right to go to court, and it being a good idea to go to court are two different things.
The CSOS was created specifically to give community scheme members access to a dispute resolution process that is faster, cheaper, and less formal than litigation. For the vast majority of disputes, noise complaints, maintenance failures, contribution arrears, conduct rule enforcement, trustee disputes, the CSOS is more than adequate, and a great deal kinder to your bank account.
But before you even get to the CSOS, there is a step that is even cheaper and often more effective: working through your scheme's internal dispute resolution process, and if that fails, try mediation. In a previous article we set out our step-by-step guide to raising a complaint in your community scheme, the CSOS should be thought of as the ambulance: vital when you need it, but far better to put your seatbelt on first. Mediation is that seatbelt: faster, collaborative, and designed to preserve relationships rather than destroy them.
In the Parch case, the SCA itself made a point of noting that the parties had "a real opportunity to reach a mutually satisfactory arrangement" if they had approached the matter in a spirit of conciliation rather than confrontation. That observation did not change the outcome, Parch still lost, but it is a useful reminder that litigation, even when you win the right to use it, is not always the most constructive path.
At TVDM Consultants, our advice to clients is straightforward:
Start inside the scheme
Use your scheme's internal dispute resolution process first. Most schemes have a formal complaints procedure: use it, and document everything as you go. The CSOS will often ask for proof that you tried the internal route before escalating.
Consider mediation
If the internal process does not resolve the matter, mediation with an accredited mediator is a powerful next step before resorting to formal proceedings. It is faster and less adversarial than the CSOS process, and it gives both sides a genuine opportunity to find a solution that works. Nicole Nel at TVDM Consultants is an accredited mediator with an LLM from Stellenbosch University where her dissertation focused specifically on community scheme dispute resolution. She knows this territory inside out.
Use the CSOS process
If mediation does not resolve the matter, the CSOS is the right forum for most community scheme disputes. It is cost-effective, accessible, and adjudicators understand the specific legislation governing community schemes.
Reserve the courts for the right cases.
The Parch judgment confirms you have the option. But litigation is expensive, slow, and emotionally draining. Reserve it for matters where the legal questions are genuinely complex, where the stakes justify it, or where the CSOS route has been exhausted and has not produced a workable outcome.
The bottom line | Make the right choice
The Parch case is a useful reminder that the law gives community scheme members more flexibility than many people realise. You are not forced into any single channel. But flexibility cuts both ways, the existence of a choice means you have to make a good one. For most people, most of the time, working through your scheme's internal process, using mediation where needed, and only then turning to the CSOS is still the wisest, most cost-effective path to resolution.
If you are unsure which route is right for your dispute, get advice before you file anything. The wrong forum at the wrong time can cost you far more than the dispute was ever worth.As always, if your scheme needs guidance on how to navigate this, reach out to us at info@tvdmconsultants.com or call 061 536 3138. We are here.
About the author
Sarah Sydenham is a community schemes consultants at TVDM Consultants.
Sarah is also an admitted attorney, brings a well-rounded legal background and a passion for community schemes to her role.
Learn more about Sarah Sydenham.
