CONDUCT RULES - GEDRAGSREËLS
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CONDUCT RULES - GEDRAGSREËLS
Gedragsreëls is 'n kragtige wapen in die arsenaal van die beheerliggaam van 'n deeltitelkompleks, wie statutêr verplig is om in die algemeen die gemeenskaplike eiendom van 'n deeltitelkompleks te beheer, bestuur en administreer tot voordeel van al die eienaars. 'n Deeltitelskema word bestuur en gereguleer by wyse van reels, insluitende gedragsreëls, onderworpe aan die bepalings van die Deeltitelskema Bestuurswet. Dit moet voorsiening maak vir die regulering, bestuur, administrasie, gebruik en genieting van deeltiteleenhede en gemeenskaplike eiendom.
Accordingly, body corporates are required to have a set of rules known as conduct rules in place when they are established. These are binding, by law, on all owners and occupiers in a scheme. In terms of the STMSA, a body of owners in a sectional title scheme is allowed to make its own rules or alter or amend existing rules so long as any amendments are approved by the Community Schemes Ombud Service. Only once approved by the ombud, will the new rules be valid and binding on all residents. We recently had to advise a body corporate of a scheme with more than 300 sections on whether the following conduct rule is enforceable by the body corporate.
"No vehicles without valid license plates and license disks will be allowed into the complex".
The residents in the scheme constitutes mostly tenants of units. A large portion of the residents are of foreign African origin. Some of the vehicles driven by them are not licensed and stolen vehicles have been found on more than one occasion to be hidden in the scheme. Attempts to enforce this specific conduct rule was met with fierce resistance and aggressiveness by affected residents. According to them the body corporate is not part of the traffic authorities, and the body corporate has no right to usurp the duties of the traffic authorities by disallowing access to unlicensed vehicles. The specific conduct rule forms part of the set of conduct rules regulating access to the scheme and vehicular usage and movement inside the scheme. The conduct rules have been in force since 2015.
The roads inside the scheme are common property and owned by the body corporate. A vehicle that is unlicensed may not be driven on a public road. The National Road Traffic Act, (the "Act"), defines a "public road" as "any road, street or throughfare or any other place (whether a throughfare or not) which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access...".The road network within the scheme is not public roads. This issue was considered in the appeal court matter of Mount Edgecombe Country Club Estate Management Association II RF NPC vs Singh & Others 2019(4)SA 471(SCA). The appeal court ruled that in applying the definition of "public roads" the roads within the particular estate are not public roads. The estate is a private township and in terms of the township approval the owner had to construct all the roads in the township to the satisfaction of the local authority.
Although this judgement refers to a gated estate, it is our view that it also applies to the road network inside a sectional scheme. The roads are part of the common property and can only be private roads. The provisions of the Road Traffic Act do not apply, and it will not be a transgression of the provisions of the Road Traffic Act to drive an unlicensed vehicle on the roads inside the scheme.
When the owners of units in the scheme chose to purchase property within the scheme and become members of the body corporate, they agreed to be bound by its rules, the management rules and the conduct rules. The relationship between the body corporate and the owners are thus contractual in nature. The conduct rules and the restrictions imposed by them are private ones, entered into voluntarily when an owner elects to buy property within the scheme. By agreement, the owners of property within the scheme acknowledge that they and their invitees are only entitled to use the road laid out within the scheme subject to the conduct rules. Any third party invitee only gains access to the scheme with the prior consent of the owner concerned. This will be the instance where a resident is a tenant of an owner.
Upon gaining access to the scheme, responsibility for any breach of the conduct rules by the invitee is that of the owner. Any breach of the conduct rules is therefore a matter strictly between the owner concerned and the body corporate. That is why conduct rules can make provision for the imposition of a sanction or penalty on the owner whose tenant breaches any specific conduct rule. No sanction is imposed on the third party. There is nothing in the rules which provides for any consequence for a third party who fails to comply therewith.
In the Mount Edgecombe-decision the issue that had to be determined was whether the imposition of a speed limit within the estate is subject to the provisions of the National Road Traffic Act. The Homeowners Association imposed a speed limit of 40km per hour. The court of first instance ruled in favour of the applicants and ordered that a speed limit may only be imposed subject to the approval of the relevant traffic authorities. The appeal court ruled otherwise. The appeal court, with reference to the contractual nature of the relationship referred to above, ruled that the control of the speed limit within the estate therefore falls within the provisions of the contract concluded between the Association and the owners of the properties within the estate. The rules are obviously enforceable only as between the contracting parties and not against the public at large. It follows that the Association is not endeavoring to impose the provisions of the National Road Traffic Act upon third parties. Neither do the rules purport to exonerate the parties from, or exclude the operation, of the Act. Once it is accepted that the rules are private ones, the respondents' argument that the Association is usurping the functions of the recognized authorities or contravening the provisions of the Act cannot be sustained. The appellant was not, in crafting and applying the rules, purporting to carry out any function under the National Road Traffic Act. The specific rule does no more than prescribe that the speed limit throughout the estate is 40km per hour and that any person found driving in excess thereof will be subject to a penalty.
In considering whether the specific rule was unreasonable, the court found further that the imposition of the speed limit within the estate goes beyond promoting, advancing and protecting the interests of the members of the Housing Association or that it is unreasonable. This is especially so, reasons the court, given the presence of children, pedestrians, and animals upon or in the immediate vicinity of the roads themselves. The specific rule went no further than to record that the operating of any vehicles in contravention of the Act within the estate is prohibited. The court failed to see why that would be objectionable. The court decided further that:
"Those principles apply equally in respect of the regulation of the roads within the estate. The mere fact that the rules provide additional contractual requirements for the operation of vehicles on those roads does not mean that the rules themselves have a public-law content. Nor does the enforcement of those contractual obligations involve the usurpation of public power. Statutory obligations on members of the public generally are obviously enforceable by the relevant authorities. Contractually binding regulations are enforceable by the parties to the contract, and against them only. There is therefore no conflict between the Act and the rules of the Association, agreed to privately. The position may have been different if the Association has sought to appropriate powers under the Act.
Applying the above to the facts under consideration, should the body corporate refuse a resident access to the scheme with a vehicle that has an expired license disk, it will be enforcing the particular conduct rule, nothing else. Access is denied, not to the resident, but to the non-qualifying vehicle. The majority of owners voted that such a conduct rule be created. It does not refer to vehicles of owners only, but to all vehicles whose drivers wish to enter the scheme with the vehicles. Spoliation will not be an issue as the body corporate, by refusing vehicular access to the scheme, is not disturbing the possession that the resident has of the particular vehicle. The resident is free to have access to his vehicle, in other words to have possession thereof, but he may not enter the scheme with the particular vehicle until such time as the vehicle is properly licensed. In our view it will not be unlawful to refuse to grant a resident an access tag if the license disk of his/her vehicle has expired or the vehicle has no license plates, in circumstances where a conduct rule makes provision for such action, as in this instance.
Any owner has the right to attack the validity of the conduct rule for being unreasonable or unlawful. It will be advisable for the body corporate to have a letter prepared and delivered to each and every owner and resident of the scheme to inform them of the new access system that is being put in place and secondly that a resident or owner that resides in the scheme, will not be provided with an access tag under the new system unless the vehicle driven by the particular owner or resident carries a valid license disk and has valid number plates. The letter must quite specifically refer to the applicable conduct rule. A sufficient period, three months or longer, should be afforded to every resident to enable them to comply. After the expiry of the period and should a vehicle then not be in compliance, no access tag must be provided. Taking this preliminary action will strengthen the case of the body corporate should any owner decide to take the body corporate to court on this issue after expiry of the period granted.
Author: Van Zyl Kruger Attorneys
