This judgment was handed down in respect of an application made by the CSOS against the Stonehurst Mountain Estate Owners Association (Association) in which the CSOS challenged a cost order against it in favour of the Association, after the Association successfully appealed an adjudication order handed down by a CSOS adjudicator.

The CSOS successfully challenged the cost order against it on the basis of section 37 of the Community Schemes Ombud Service Act 9 of 2011 (Act). Essentially, section 37 provides that: “In performing their functions in terms of this Act, the chief ombud, an ombud, a deputy ombud and an adjudicator have the same privileges and immunities from liability as a judge of the High Court.”

The court confirmed that under section 37(1) of the Act, these officials are immune from costs orders. Additionally, section 33 of the Act states that the CSOS and its employees are only liable for loss or damage if they act unlawfully, with gross negligence, or in bad faith.

The judge noted that although the adjudicator may have been wrong in his ruling, the legislation mentioned above is clear, and the legislature has in fact anticipated such a situation, which brought about section 57(1) of the Act, which allows for an automatic right of appeal to the High Court on a question of law. Consequently, there was no order as to costs against the CSOS in respect of the appeal.

This judgment could be problematic as it removes any liability for the CSOS in successful appeals against incorrect adjudication orders, potentially reducing the incentive for proper administration and informed adjudication.