A CSOS Adjudicator must investigate an application made for dispute resolution in terms of section 38 & 39 of the CSOS Act and having considered the details of the case presented by the opposing parties, decide whether it would be appropriate to make an order. The adjudicator must make an order granting or refusing each part of the relief sought by the applicant. An order may require a person to act, or refrain from acting, in a specified way. The order may contain such ancillary and ensuing provisions as the adjudicator considers necessary or appropriate. If there is no compliance with the adjudication order issued, then the adjudication order will have to be enforced.
This article is extracted from an article written by Mervyn Dorasamy, the acting adjudicator- general of the CSOS and can be found in the CSOS quarterly magazine “Shared Living Magazine Issue 3 of 4.
(b) The date and time within which the order must be complied with.
In the event that the party against whom the order has been issued, has not complied with the adjudication order within the time frame and in the manner specified on the adjudication order, then the person in whose favour the order is issued, must approach the court of jurisdiction to obtain an enforcement order.
Without an enforcement order the adjudicator’s order cannot be enforced and the person or body in whose favour the adjudication is made must not take the matter into their own hands to enforce the order or they risk being on the wrong side of the law.
An adjudicator’s order, may in terms of section 56 of the CSOS Act, be enforced in the Magistrates Court or the High Court as if it were a judgment handed down by that Court.
An adjudication order for specific performance, can only be enforced in the High Court. An adjudication order for specific performance, relates to an order that has no quantum or monetary value.
The person or legal body in whose favour the order was issued, must file with the Clerk of the Magistrates Court or with the Registrar of the High Court the following documentation:
a. a copy of the adjudicator’s order certified by the Ombud as a true copy if the original document cannot be provided.
b. any relevant form/s required by the Magistrates Court or the High Court to be completed by the applicant – documents available from the clerk or the registrar of the court at the court buildings.
c. the court order to be endorsed by Clerk of the Magistrates Court or Registrar of the High Court.
Once the Clerk of the Magistrates Court (or the Registrar of the High Court if applicable) has issued the order of court and allocated a case number, the party may take and submit the order to the Sheriff of the Court of jurisdiction for the order to be executed by the Sheriff,
The CSOS will not be involved in this process and the party will bear any costs that are related to the enforcement and execution of the order.
An application for enforcement lodged with the Magistrates Court or High Court is not an appeal or a re-hearing of the merits of the original application, it a procedural administrative matter handled by the clerk ( or registrar ) of the court of jurisdiction.
If an adjudicator’s order is for the payment of an amount of money or any other relief which is within the jurisdiction of a magistrate’s court, the order must be enforced as if it were a judgment of such Court and a clerk of such a Court must, on lodgement of a copy of the order, register it as an order in such Court.
If an adjudicator’s order is for the payment of an amount of money or any other relief which is beyond the jurisdiction of the magistrate’s court, the order may be enforced as if it were a judgment of the High Court, and a registrar of such a Court must, on lodgement of a copy of the order, register it as an order in such Court.
If the clerk ( or registrar ) of the court is not familiar with the CSOS adjudication process and the CSOS Act, it may be necessary to appoint an attorney to attend to the enforcement procedure, although this is at one’s own cost. In order to enforce a CSOS order a warrant of execution needs to be issued ( usually drafted by an attorney if the court officials are unwilling) so that the warrant can be issued by the appropriate court and taken to the sheriff for service on the defaulting party.
The article by Mervyn Dorasamy, the acting adjudicator -general of the CSOS can be found on the CSOS website https://www.csos.org.za/newsletters/ in the Shared Living magazine October – December 2020 ( Issue 3 of 4)
More information about the CSOS and its role in the management of community schemes may be found on the CSOS website – www.csos.org.za
