Attorneys appearing @ CSOS or not?

Section 52 of the Community Schemes Ombud Service Act states that the applicant and any other relevant person are not entitled to legal representation during adjudication subject to:

• The adjudicator and all other parties consent; or
• The adjudicator, after considering -

(i) the nature of the questions of law raised by the dispute;
(ii) the relative complexity and importance of the dispute; and
(iii) the comparative ability of the parties to represent themselves in the
adjudication,

• concludes that it would be unreasonable to expect the party to deal with the adjudication
  without legal representation.
  

CONCILIATION

Directive on Dispute Resolution.

• In terms of Directive 19.3 the body corporate may be represented at the conciliation hearing by the managing agent or trustees.
• It stems from the above that when the managing agent is an attorney, this directive will allow an attorney to attend a conciliation meeting in his / her capacity as managing agent.

ADJUDICATION

Directive on Dispute Resolution.

• Directive 27 states that parties are not entitled to legal representation but the Adjudicator has a discretion to allow legal representation.
• If the managing agent is an attorney good arguments can be presented that the attorney attend in his / her capacity as managing agent.  Arguments may be presented that the managing agent is an integral part of the day to day management of the body corporate and of such would be in a better position to represent the body corporate than a trustee of the body corporate.
• Trustees are however at all relevant time entitled to appear at adjudication hearings on behalf of the body corporate.
• If the body corporate elect an attorney as a trustee, then that attorney would be able to attend an adjudication hearing in his/her capacity as trustee.

TRUSTEES

• A body corporate may appoint anybody to be a trustee.  That person does not have to own a unit in the body corporate.

SECTIONAL TITLES SCHEMES MANAGEMENT REGULATIONS

• In terms of PMR 7(7) the trustees may appoint, for a specified period, a person as a replacement for any trustee who is absent or otherwise unable to perform the duties of that office.  The PMR does not define what the reasons for a trustee who is not able to perform the duties should be.  It can therefore be any reasons.
• A trustee may therefore indicated that he will not be able to perform his duties for a certain period, for personal reasons.
• The remaining trustees may then appoint for that period a replacement trustee, who may or may not be an attorney.  As soon as the specified period lapse, the trustee who was not available will automatically resume his/her duties as a trustee, and the replacement trustee will cease to be a trustee.
• During that specified period the replacement trustee who may be an attorney, may appear on behalf of the body corporate at adjudication hearings.
• In terms of PMR 7(5) the remaining trustees may appoint replacement trustees should any trustee cease to hold office for whatever reason.  The replacement trustee may or may not be an attorney and so appointed trustee may appear on behalf of the body corporate at adjudication hearings.
  

Please send an email to riaan@lawyersa.com to find out about our trustee services as well as our body corporate management services.