Undesirable Rules often found in Community Schemes conduct rules18th Feb 2021
Our Constitution is woven through the very fabric of our daily lives, and this is so clearly seen (or should be clearly seen) in the Rules of Community Schemes all around the country!
It is inevitable though, that some schemes will try to register Rules that do not pass Constitutional muster, and at the CSOS, we still see this from time-to-time.
The aim of this article is to provide you, our reader, with a clear guideline of what is undesirable, non-compliant and UN-constitutional. Obviously, this list is not exhaustive.
Please note that these rules apply to ALL community schemes, inclusive of homeowner’s associations, sectional title and retirement schemes.
Rule: Domestic staff members are not allowed to receive visitors, not allowed to talk to one another on common property or walk around the community scheme without a name tag or pass, or in the instance that trustees may refuse a domestic worker entry to the common property,
Legislation: These rules are clearly discriminatory and contrary to the Constitution of the Republic of South Africa;
Slaughtering of animals
Rule: The slaughtering of animals for cultural or religious purposes prohibited;
Legislation: This type of rule cannot be prohibited in terms of the Constitution of the Republic of South Africa. Conditions for slaughter may, however, be imposed, for example:
- reasonable notice of the proposed slaughter must be given;
- A notice from the local authority must accompany the notice confirming that all by-laws with regards to the ritual or cultural slaughter have been/will be complied with;
- A certificate from the SPCA must accompany the above notice confirming that an OFFICIAL from the SPCA will be present at the proposed event to ensure that the animal to be slaughtered will not endure unnecessary pain and suffering during such slaughter;
- Notice must be given to all adjacent units of the date and time of the proposed slaughter and proof of the receipt of such notice by the owner/tenant responsible for the unit must be timeously submitted to the trustees ;
- Failure to comply with the requirements set out above will entitle the Body Corporate to prevent the act of ritual or cultural slaughtering from taking place on the premises or penalising the owner with a fine.
Rule: Only a certain agent may let or sell a unit in the scheme.
Legislation: This rule imposes an unreasonable limitation on the rights of an owner in the scheme to market, sell and let his or her unit through an estate agent of his or her choice, and the CSOS will certainly not register a rule of this nature.
The above are but a few examples of Rules that will not pass Constitutional muster and will thus be struck out by the CSOS and sent back to the Executive Committee for the Rules to be amended. The important questions to ask yourself before submitting draft Rules to CSOS for registration are the following:
– is the proposed rule reasonable?
– does it apply equally to all owners and occupiers?
– does it unreasonably discriminate against persons or classes of persons?
– does it have a legitimate purpose?
Should the proposes rule meet the aforesaid criterion, it should pass Constitutional muster.