By Alexander Ferguson – Attorney, Cilliers & Reynders Inc.
For years, many homeowners, trustees and even practitioners have assumed that disputes inside community schemes—especially disagreements about governance, voting, amendments to constitutions and rule changes—had to be resolved through the Community Schemes Ombud Service (CSOS). The Ombud was treated almost as a compulsory gateway.
The Supreme Court of Appeal’s recent judgment in Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owners’ Association (17 October 2025)
Parch Properties 72 (Pty) Ltd v…
has now corrected that assumption and re-opened a door that many thought had been closed. The ruling confirms, with welcome clarity, that homeowners, HOAs, trustees, sectional-title bodies and developers retain the right to approach the High Court directly. CSOS remains available, but it is not an exclusive or compulsory forum.
This jurisdictional point is the true legal significance of the case, although it arises from an emotionally charged dispute at a retirement estate in Strand.
Summervale Lifestyle Estate was originally developed as a retirement village and its constitution defined the perimeters of the estate strictly. Membership of the Homeowners’ Association (HOA) depended on ownership of property within Erf 5[…], the only land legally forming part of the estate.
Next to Summervale lay Erf 6[…], a separate property later developed into 55 garden cottages. Though adjacent, it was never included in Summervale’s constitution. A municipal approval suggested that the cottages should “resort under” the HOA and that the constitution should be amended accordingly, but no such amendment ever occurred.
Despite this, the two properties began to function in practice as though they were one community. Tenants on Erf 6[…] used Summervale’s access gates and security. The HOA charged levies to the owner of Erf 6[…], and those levies were paid. The owner even attended Summervale’s annual general meetings and exercised voting rights. All of this occurred informally, without the legal foundation of a constitutional amendment.
Years later, when Parch Properties purchased Erf 6[…], it sought to formalise what had developed in practice. Parch proposed amending the constitution so that Summervale’s “Area” would include both erf 5[…] and erf 6[…], effectively making the garden cottages a legal extension of Summervale.
The residents refused—twice.
Their reasons were varied but coherent. Many residents had chosen Summervale precisely because it was a retirement estate. They objected that the garden cottages were rented “without any regard for the age of tenants”, something the Supreme Court of Appeal acknowledged was “a relevant consideration”. Others raised concerns about fairness. The HOA’s common property was valued at approximately R60 million, and residents questioned whether Parch should gain membership rights to this property without compensation.
There were also concerns about process. Some trustees aligned with Parch were perceived as conflicted. Communications circulated to residents suggested that those who voted against the amendment could face legal action, leading one resident to lay a criminal charge of extortion. The Court noted that residents reported feeling “disrespected and bullied”.
Importantly, the residents were not opposed to continued access or cooperation. They indicated a willingness for Parch to continue using roads, access points and facilities through servitudes or negotiated agreements. What they opposed was a forced integration that would change the governance of their estate and its retirement character.
The Supreme Court of Appeal agreed with them. Applying an objective standard, the Court held that the residents’ refusal was reasonable “based on the existing objective facts”. Their decision was not arbitrary—it reflected legitimate concerns about identity, governance, fairness and process.
While this finding resolved the merits of the dispute, the judgment’s broader legal contribution lies elsewhere.
For many years, it was widely believed that disputes involving governance of community schemes—particularly those falling under section 39 of the CSOS Act—had to be taken to the Community Schemes Ombud Service. The Ombud was seen as the mandatory first port of call.
The SCA has now clarified that this belief was incorrect.
The Court reaffirmed a basic principle of South African law: there is a strong presumption against excluding the jurisdiction of the High Court. Nothing in the CSOS Act removes or restricts that jurisdiction. CSOS is an accessible, cost-effective forum for many disputes, but it does not replace the courts. Parties are entitled to choose the forum best suited to the dispute’s urgency, complexity or strategic importance.
This means that trustees, homeowners, HOAs and developers are no longer limited to a single pathway. Urgent matters can go straight to court. Cases involving constitutional interpretation or precedent can be brought before a judge without first approaching CSOS. The flexibility and strategic choice that existed before CSOS was created has been restored and confirmed.
For the public, this ruling has important practical implications.
Homeowners now know they are not locked into one process. Trustees and bodies corporate can escalate governance disputes to court where appropriate. Developers must engage transparently and cannot rely on assumptions, informal histories or municipal conditions to integrate new developments into established communities. Buyers, too, are reminded to scrutinise the true legal boundaries of estates—marketing language like “Phase 3” carries no legal weight unless the constitution reflects it.
The judgment also highlights a deeper truth about community living. These disputes are not only legal—they are relational. As the Court reminded, matters of this kind should ideally be approached “amicably rather than through confrontation”. Residents’ fears, expectations and lived experience matter, and the law protects them.
Ultimately, the Parch Properties v Summervale decision affirms two essential principles:
A community cannot be redefined without its consent.
And those affected by governance disputes may seek relief either from CSOS or directly from the courts.
For anyone living in or operating within a community scheme, that clarity is invaluable.
Cilliers & Reynders assists trustees, homeowners, developers and buyers in navigating these disputes—whether through CSOS or in the High Court—and ensuring that the governance of community schemes remains lawful, fair and aligned with the people who call those communities home.
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