It’s just not cricket: cost orders against CSOS and its adjudicators

The 2019 Cricket World Cup Final between England and New Zealand was marked by an umpiring controversy that left a lasting impact on the cricketing world.[1] In a nail-biting final over, an umpiring decision to award England an extra run during an overthrow proved crucial, ultimately allowing them to tie the match. An overthrow in cricket awards extra runs if a fielder’s throw misses the wickets, sometimes reaching the boundary. England then lifted the World Cup as they had more boundaries (a tiebreaker rule). This call was later acknowledged as incorrect by cricketing experts and the umpires, sparking debate over the need for accountability in high-stakes officiating. Despite the widespread debate, none of the umpires faced formal penalties. The International Cricket Council (ICC) typically does not impose retrospective penalties on umpires for on-field decisions, particularly in cases where the decision was made in good faith and under high-pressure conditions. Instead, the ICC defended its officials, maintaining that human error is an unavoidable aspect of sports officiating. It’s the same in many if not all sports. The controversy did lead to renewed discussions about accountability mechanisms for umpires and the possibility of further refining cricket’s laws on overthrows.

At the end of the day, that was a sports match. However, the incident does highlight the broader question of accountability in authoritative roles, such as those held by Community Schemes Ombud Service (CSOS) adjudicators, whose decisions can have lasting consequences. Adjudicating community scheme disputes is not a sport. The recent case of Lund and Another v Community Schemes Ombud Service and Others[2] (“the Lund case”) offers a lens through which the importance of accountability in CSOS adjudicative roles can be viewed. The Johannesburg High Court became curious enough to present some interesting commentary about cost orders against CSOS and its adjudicators.

In the Lund case, the Johannesburg High Court was tasked with reviewing an application in terms of the Promotion of Administrative Justice Act[3] (PAJA) to set aside a CSOS adjudication order, as well as an application to condone the late filing of the PAJA application, so that the CSOS can be ordered to rehear the matter for reconsideration.[4] The crux of the unit owners’ (the applicants’) complaint was that the CSOS adjudicator failed to provide a fair hearing by deciding the case based solely on written submissions, refusing requests for a site inspection, and imposing shortened response times that contravened CSOS Practice Directives.[5]

The High Court granted the application for condonation for the late filing of the review application, and also granted the review application, after considering several factors, including the conduct of the CSOS proceedings, the adjudicator’s decision to avoid oral hearings, and the implications of CSOS Practice Directives.[6] The Court also found that the adjudicator denied due process by not allowing further evidence, which could have been critical to resolving the dispute between the parties.[7]

The Role of the CSOS Act in Cost Orders

The unit owners initially sought a cost order against CSOS, or in the alternative, against CSOS, the adjudicator, and the Body Corporate jointly and severally, in the event that either one opposed.[8] However, counsel for the unit owners conceded that under sections 33 and 37 of the Community Schemes Ombud Service Act[9] (“the CSOS Act”), costs orders against CSOS and its adjudicators could only be granted if they acted unlawfully, with gross negligence or in bad faith.[10] Consequently, the unit owners withdrew their request for costs against CSOS and the adjudicator, focusing instead on the Body Corporate, which opposed the review application.[11] As is usual in these cases, neither CSOS nor the adjudicator opposed and rather abided by the decision of the Court.

Sections 33 and 37 of the CSOS Act extend a degree of immunity to CSOS and its adjudicators, shielding them from cost orders except in exceptional circumstances involving unlawfulness, gross negligence, or bad faith. This protection aligns with CSOS’s purpose as an accessible, low-cost dispute resolution service funded by contributions from community schemes.[12] This statutory immunity is meant to allow adjudicators to perform their duties without the deterrent of potential financial repercussions.[13]

Yet, the judgment raised questions about the equity of this immunity compared to other statutory bodies (for example, the Road Accident Fund). The Court questioned whether it was reasonable for CSOS adjudicators to be held to a high threshold of “gross negligence” requiring extreme departures from the standard of care before costs could be imposed.[14] This standard effectively prevents cost awards for negligence alone, which could unfairly burden applicants who bear the financial consequences of flawed adjudications.[15] The Court emphasised the potential inequity, perhaps lack of constitutionality, of the statutory protection for CSOS and its adjudicators, especially in instances where applicants incur significant legal costs due to adjudicator errors.[16] The Court states as follows:[17]

“At first blush, the answer to the aforesaid question would appear to be a simple one. In a dispute resolution process between two “warring” parties, it would seem imminently reasonable (and appropriate) to protect the “umpire” of that dispute by making it (CSOS) and him or her (the adjudicator), virtually immune from any adverse order in respect of costs. CSOS is, after all, a creature of statute created solely to serve the best interests of community schemes and individual homeowners. It and its appointed adjudicators should be entitled to carry out their duties independently and free of any threat of financial sanctions which may inhibit them from doing so.”

Recommendations for Legislative Reform

The Lund case brings to light a need for potential legislative reform in the CSOS Act.[18] The Court suggested that reducing the threshold from “gross negligence” to “negligence” for awarding costs could establish a more balanced approach, allowing applicants recourse to recover costs where they have been financially disadvantaged by an adjudicator’s actions.[19] Such an amendment would maintain the protection necessary for the independence of the adjudicator while fostering accountability, ensuring the integrity of the dispute resolution process in line with principles of fairness and justice.[20]

In cricket, as in other sports, the occasional error by an umpire is often accepted as part of the game, with the finality of on-field calls preserving the flow and outcome, despite the high stakes involved. It has become better and fairer (some would say) with new technologies to review on-field calls. But dispute resolution is not a sport. The impact of a CSOS adjudicator’s decision can extend beyond a single event, affecting lives, property values, and community harmony. The Johannesburg High Court’s analysis in Lund highlights a crucial distinction: while human error is generally tolerable and forgotten on the sports field, fairness and accountability are foundational in legal and administrative adjudication.

The Lund case underscores that, unlike sports officiating, decisions in community scheme disputes should withstand scrutiny and accountability measures, particularly where procedural errors or oversights occur. The court’s call to adjust the threshold for cost orders against CSOS adjudicators from “gross negligence” to “negligence” would possibly create a more equitable system that respects both fairness and independence. In this way, adjudicators could still fulfil their roles impartially, but with a necessary accountability that safeguards the rights of all parties, ensuring that community scheme justice is more than just a game.

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FOOTNOTES:

[1] For more information, see “That Was My Only Error”: Umpire Marais Erasmus Opens Up on Controversial England vs New Zealand 2019 World Cup Final, Asian News International, updated 2 April 2024, accessible at NDTV Sports.

[2] [2024] 4 All SA 608 (GJ). Accessible at https://www.saflii.org/za/cases/ZAGPJHC/2024/632.html#_ftnref11.

[3] Act 3 of 2000.

[4] Lund paras 4 and 7.

[5] Lund paras 23 and 24.

[6] Lund para 55.

[7] Lund para 34.

[8] Lund para 36.

[9] Act 9 of 2011.

[10] Lund para 37.

[11] Lund para 37.

[12] Lund para 46.

[13] Lund para 48.

[14] Lund para 50.

[15] Lund para 51.

[16] Lund paras 47 and

[17] Lund para 45.

[18] Lund para 55.

[19] Lund para 55.

[20] Lund para 55.