. . .
Policies, procedures, our governing documents and our rules and regulations are binding on members
who choose to buy into a homeowners association or sectional title scheme. But, of course, the directors,
trustees, management, and the members themselves have to ensure that these are lawful, consistent
and fair, and that they protect the common interest of the community at large.
W
e have selected some cases that
readers may find interesting in
respect of judgments being
handed down that will impact
on the residential community
industry. It is, of course, important
that each of these judgments is read in the
context of the application itself. While these
cases are useful for reference and precedent,
it should not be assumed that any future similar
incidents would be decided in the same way.
Readers are also alerted to the fact that these
summaries are not to be interpreted as the
judgments themselves, and that they are
only a synopsis of the matters. The complete
judgments are available on the ARC portal.
ENFORCING SPEEDING RULES
The first matter is the case between Mount
Edgecombe Country Club Estate Two and a
member, pertaining to the rights of an HOA to
implement its rules – in this matter specifically
matter the defence presented by the member ‘HARASSMENT’ OF AN HOA
was that there was a rezoning in terms of the This matter, heard in the Gauteng division of
The matter was heard in the High Court and Land Use Ordinance Act, and that the rezoning the High Court, was between the Silver Lakes
went on appeal to the Supreme Court, where regulations had allowed her to conduct this Homeowners Association and a member.
the judges ruled in favour of the HOA. The business. The Silver Lakes HOA was the respondent
the rules relating to speeding.
in this matter. Evidence presented by the
member applied for leave to appeal in the
Constitutional Court, but this was denied. The While the matter, when heard in the High Court, respondent involved the constant barrage of
ruling therefore is that an HOA does have the went in favour of the member, the Supreme emails received by the HOA from the member,
right to enforce rules relating to speeding, Court found that the High Court had erred in going back several years. The HOA had made
whether on public or private roads, where the its interpretation of the rezoning in the Land numerous attempts – all of which had failed –
agreed-upon rules and regulations have been Use Ordinance Act. Consideration was made to request that the member refrain from the
properly and procedurally set. as to whether the constitution and rules of continuous, and in many cases abusive, emails.
the HOA were more or less restrictive than the The amount of time taken by HOA staff and
regulations in the Land Use Ordinance Act. management had become unacceptable and
RUNNING HOME BUSINESSES
This matter deals with the Vanilla Street
letters were sent to the member advising him
Homeowners Association and a member, heard The judgment, therefore, was that the HOA that no further written communications would
in the Western Cape division of the High Court. does have the right to implement its rules be received by the member from the HOA.
The HOA, which was in this matter the appellant, in accordance with its constitution. The The member continued to make demands of
is registered under the Land Use Ordinance judges ruled in favour of the homeowners the HOA in respect of his rights to information
Act. The constitution and rules stipulated that association, and that homes are to be used as contained in the Promotion of Access to
homes in the development may only be used solely for residential purposes, so the business Information Act.
for residential purposes, but the member of the member was running was not allowed to the HOA had been conducting a hair salon continue in order to preserve the nature and It was found that the applicant, in this matter
business on the estate for some years. In this lifestyle of the estate. the member, had failed to present a real
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INDUSTRY JOURNAL