Estate Living Magazine Invest SA - Issue 45 September 2019 | Page 49

c o m m u n i r t y
Running home businesses
This matter deals with the Vanilla Street Homeowners Association
and a member, heard in the Western Cape division of the High
Court. The HOA, which was in this matter the appellant, is
registered under the Land Use Ordinance Act. The constitution
and rules stipulated that homes in the development may only be
used for residential purposes, but the member of the HOA had
been conducting a hair salon business on the estate for some
years. In this matter the defence presented by the member was
that there was a rezoning in terms of the Land Use Ordinance
Act, and that the rezoning regulations had allowed her to
conduct this business.
While the matter, when heard in the High Court, went in favour
of the member, the Supreme Court found that the High Court
had erred in its interpretation of the rezoning in the Land Use
Ordinance Act. Consideration was made as to whether the
constitution and rules of the HOA were more or less restrictive
than the regulations in the Land Use Ordinance Act.
The judgment, therefore, was that the HOA does have the right
to implement its rules in accordance with its constitution. The
judges ruled in favour of the homeowners association, and that
homes are to be used solely for residential purposes, so the
business the member was running was not allowed to continue
in order to preserve the nature and lifestyle of the estate.
‘Harassment’ of an HOA
The amount of time taken by HOA staff and management had
become unacceptable and letters were sent to the member
advising him that no further written communications would
be received by the member from the HOA. The member
continued to make demands of the HOA in respect of his rights
to information as contained in the Promotion of Access to
Information Act.
It was found that the applicant, in this matter the member, had
failed to present a real purpose for wanting such information,
and his application was dismissed.
Building penalties and late payment of levies
This matter, between Cilantro Homeowners Association and a
member, dealt with the fact that the HOA was imposing its rules
relating to the fact that the member had failed to begin and
complete the building of his home on time, as well as the late
payment of ordinary levies by the member. The member claimed
that requests by the HOA to pay the late-building penalties were
not valid. These claims, essentially, were around the fact that the
HOA had not met its obligations procedurally and included the
issue of whether the HOA had suffered any damages as a result of
the late building by the member. Furthermore, the member also
claimed several irregularities within the HOA – for example that
the rules and regulations had not been registered, and that the
incorrect number of directors was serving on the board, according
to its governing documents.
This matter, heard in the Gauteng division of the High
Court, was between the Silver Lakes Homeowners
Association and a member. The Silver Lakes HOA was the
respondent in this matter. Evidence presented by the
respondent involved the constant barrage of emails received
by the HOA from the member, going back several years. The
HOA had made numerous attempts – all of which had failed – to
request that the member refrain from the continuous, and in
many cases abusive, emails.
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