Body Corporate fines – how binding are they?

Can a Body Corporate fine an owner for, e.g. making too much noise, being discourteous to security officers, or keeping a pet, against the Conduct Rules of the complex?

Karen Bleijs kbleijs@ibalaw.co.za a colleague and sectional title expert, had this to say:

The issues of keeping pets in sectional title schemes, as well as the imposition of fines, are both extremely thorny issues, and both fall within the ambit of the Rules of a particular scheme. This means that each particular body Corporate will have its own Conduct Rules unless the generic Conduct Rules in terms of the Sectional Titles Act apply.

Two new Acts that govern sectional title schemes have just come into operation: the Sectional Titles Schemes Management Act and the Community Schemes Ombuds Services Act! (but this is by the by!)

As regards Rules and Bodies Corporate and in answer to your questions:

1.     A Body Corporate ONLY has the power to fine unit-owners (not tenants) subject to certain circumscribed conditions, which are fairly extensive but include inter alia the following:

1.1. The provision permitting fining must be contained in the Conduct Rules applicable to the scheme;

1.2. The Conduct Rules must have been approved by the unit-owners at a duly convened Special General Meeting by Special Resolution;

1.3. The provision must be reasonable and apply equally to all unit-owners;

1.4. A fair procedure must be followed and the provisions of the Administrative Justice Act must be adhered to – in other words fair warnings must be given to owners that have contravened the Rules that they will be fined if they continue to contravene the Rules/a Rule and the owner must be given the opportunity to rectify the situation, there must be a right of recourse and the owner concerned must be allowed to have his/her say and discuss the matter with the Trustees, the owner must know what the fine will be, and so on;

1.5.  The fine cannot continue indefinitely every month. If the Rules say “no dogs”, the owner must be placed on terms to remove the dog within a certain amount of time and if he does not, provided the Rules permit it, then he must be fined. Hereafter he must be taken to Court by the Body Corporate, or to arbitration (or now to the Ombud in terms of the new Act) to obtain an Order to remove the dog;

1.6. The amount of the fine must be known or ascertainable; AND

1.7. The Rules must be lodged with the Deeds Office (now with the Ombud’s Office) in order to be legally enforceable.

Conduct Rules most definitely have the ‘power of the Law’ behind them, provided that they are made in terms of the Act.

Is the power to impose fines sometimes abused? MOST DEFINITELY. This is why educating the public regarding the rights and duties of ownership of sectional title units and the law relating thereto is so critical, to avoid abuses of power.

One last thing, some sectional title schemes permit the keeping of pets and some do not allow it at all. Many schemes allow the keeping of pets subject to certain conditions. A number of others allow the keeping of pets subject to the permission of the Trustees, which permission cannot be unreasonably withheld.

Every individual case must be dealt with on its merits but fairness must prevail – so if someone moves into a scheme and they know beforehand that there is a rule that provides that: “NO PETS ARE ALLOWED”, then they must not be surprised if they bring a pet on to the premises and are required to remove it. HOWEVER, if the new owner is blind and NEEDS a dog to assist him in his day-to-day living, the situation is of necessity different, and the Trustees would be violating his constitutional rights to deny him the right to keep a dog in the scheme.

Thinking of getting divorced?

How divorce works

Once a married couple (whether married according to civil or customary law) has decided to get divorced, the person suing for divorce (the “Plaintiff”) needs to prepare a divorce summons, either through the High Court or the Family Court at a local Magistrates’ Court, suing the other spouse (“the Defendant”).

The person suing for divorce needs to show the court that the marriage has irretrievably   broken down. Evidence to support this could be that the parties don’t love each other any longer, that they have been living apart for a long time, one partner has cheated, or that there was physical or mental abuse involved in the relationship. Other grounds of divorce are that one party is in a coma or is permanently mentally ill.

The summons

The summons would include details such as how you split assets, who the kids live with, maintenance, visitation rights and responsibilities and rights of the parents regarding the kids.

Ideally, the parties will enter into a written agreement of settlement, recording these issues, that is made a court order. In this way, the marriage will proceed on an unopposed basis. This is much cheaper and reduces conflict.

The Sheriff of the Court will serve the summons on the Defendant. In some cases, the Defendant may decide to oppose the summons, in which case his or her attorney will send back a Plea (answer to the summons).

If the matter is unopposed, the Plaintiff applies for a court date, and sets the matter down.

If the matter is opposed, the lawyers for each side will exchange ‘pleadings’ and will set the matter down once the matter is ripe for hearing. This could take years and will cost a fortune. Unless you have limitless funds, rather settle, with help from a friend, mediator, priest or pastor.

Using a lawyer

The most frightening aspect of instructing an attorney is the prospect of high legal fees. Relax. We charge an agreed fee with you, up front, and will not bill you for every phone call or by the hour.

We’ll meet with you and hold your hand throughout the process, help you decide on how to divide your assets fairly and work out what is best for your children. We’ll help you to minimize the cost and stress of a divorce. Our fee includes all consultations and putting together a settlement agreement that will be made a court order. If money is tight, we will accept reasonable instalments.

Interested? Email roy@bregmans.co.za for more information.

Dismissal for refusing to sign an employment contract?

Employers are often at a loss when an employee refuses to sign a contract of employment. Can the employee be disciplined or dismissed? What other measures are available to the employer?

One of the most common that employers make is to appoint a person without having agreed on all the terms and conditions of employment. When the employee is subsequently required to sign a contract of employment, the employee refuses or fails to sign the contract. This may be due to some misunderstanding or unhappiness with regard to particular provisions in the contract.

Our law states that verbal employment contracts are perfectly binding. But, obviously, it’s better for both employer and employee to enter into a written contract, to record all the pertinent rights and obligations of both parties. This avoids vagueness.

What should an employer do if it does not have a written agreement in place?

It is important to explain to the employee that it is to the benefit of both parties to have a written contract of employment. The provisions of the contract should be explained to the employee and the parties must establish whether there are any areas of disagreement. If there are none, and the employee still refuses to sign the contract, it serves no purpose to attempt to compel the employee to do so.

The Basic Conditions of Employment Act does not require the parties to enter into a written contract of employment. It simply requires the employer to supply the employee with written particulars of employment and it provides that certain items must be included in such particulars. The employer complies with the provisions of the Act if it provides the employee with a copy of the draft contract with a note that the employee has refused to sign it.

A signed written contract does, however, have definite advantages. It brings certainty and reduces the likelihood of disputes. There might also be provisions that are important to the employer, e.g. confidentiality or a restraint of trade undertaking. The enforcement of such provisions would be very difficult, if not impossible, without a signed contract. 

If the employee refuses to agree explicitly with a provision that is reasonable, the employer may embark on a procedure that could lead to the termination of the employee’s services due to operational requirements (retrenchment). 

Professional advice and assistance are recommended in these circumstances.

How to get that noisy neighbour to shut up

I am often asked what a person can do about excessive noise coming from a neighbour’s property.

The term ‘nuisance’ is derived from the Latin word nocere which means ‘to harm’.

A person may sue his neighbour for damages suffered as a result of excessive noise caused by the neighbour. The person must show that that the noise has detrimentally affected his quality of life, his health, comfort or well-being. An interdict is also available in these instances and can be granted if the neighbour’s conduct is unlawful or threatens to be unlawful. The factors that are normally considered in determining whether the defendant’s conduct was unlawful include the type of noise, the degree of its persistence, the locality involved and the times when the noise is heard. No fixed standard is available to determine the unlawfulness of the defendant’s conduct, the criterion being ‘not the individual reaction of a delicate or highly sensitive person who truthfully complains that he finds the noise to be intolerable is to be decisive, but the reaction of the ‘reasonable man’, one who, according to ordinary standards of comfort and convenience, and without any peculiar sensitivity to the particular noise, would find it, if not quite intolerable, a serious impediment to the ordinary and reasonable enjoyment of his property’.

In Prinsloo v Shaw 1938 AD 570 575 the court stated: ‘A resident in a town, and more particularly a resident in a residential neighbourhood, is entitled to the ordinary comfort and convenience of his home, and if owing to the actions of his neighbour he is subjected to annoyance or inconvenience greater than that to which a normal person must be expected to submit in contact with his fellow-men, then he has a legal remedy’.

When can a CCMA commissioner rely on a polygraph test?

Our case law is uncertain. In misconduct matters an employer must present evidence that it used an outside expert to conduct the lie-detection test that links the employee to the offence. 

The person hearing the dispute will decide on the weight to be given to the evidence.  Employers will take a risk if they retrench employees on the ground merely that they declined to submit to a polygraph test.

When is a polygraph test admissible evidence in CCMA proceedings?

The results of a polygraph test should not be admissible if the person who conducted the test is not qualified to testify as an expert about the validity and reliability of polygraph testing in general and the fact that the test in question has been conducted in terms of acceptable standards.

In Truworths Ltd v CCMA and Others (2008) JOL 22565 (LC) the applicant applied to review and set aside an arbitration award.  The test for review is whether the arbitrator’s decision is one which a reasonable decision-maker could not have made.  The arbitrator had ignored the outcome of a polygraph test despite the fact that a trained polygraphist was called to testify at the arbitration proceedings.  The court stated that ”it cannot be said that a decision was reasonable if the arbitrator disregarded material relevant facts or factors placed before her in coming to a decision” and held that this was a reviewable irregularity.  This conclusion lead to the review application being granted and the arbitration award set aside.  The lesson is that a commissioner may not disregard polygraph evidence but still has discretion as to how much weight to accord to the evidence. 

What evidentiary weight must a commissioner place on a polygraph test?

Little weight should be given to polygraph evidence when it is not corroborated by further evidence linking the dismissed employee to the offence.  A dismissal based only on polygraph evidence will thus not be upheld.

Does the refusal to submit to a test justify retrenchment?

In SA Transport & Allied Workers Union & Others v Khulani Fidelity Security Services (Pty) Ltd (2011) 32 ILJ 130 (LAC) the employees were contractually obliged to submit to periodic polygraph tests. They refused to do so and were retrenched.  The employees argued that the reason for their dismissal was theft, but the court disagreed and held that “[T]he purpose of the polygraph test was manifestly not to show that theft had actually taken place; it was to test the integrity of all who worked in positions where considerable amounts of theft had previously taken place”.  The court ruled that the retrenchments were fair. However, in National Union of Mineworkers & Others v Coin Security Group (Pty) Ltd t/a Protea Coin Group (2011) 32 ILJ 137 (LC) the labour court expressed misgivings about the correctness of the decision in Khulani although it was bound by it. 

The law on this issue is thus not clear and employers should think twice before they dismiss and employee because he or she failed a polygraph test.