- Two recent High Court rulings confirm that bodies corporate and homeowners’ associations must operate within the powers given by law and their own constitutions.
- Courts have rejected efforts to disconnect municipal services for unpaid levies and to approve building plans that break architectural guidelines.
- Legal experts warn that poorly written rules, inconsistent enforcement, and unlawful decisions are now much harder to defend.
Community schemes across South Africa are under closer scrutiny about how they draft, apply, and enforce conduct rules. Recent court decisions send a clear message that trustees and directors must not exceed their legal authority.
Erin Sutton from VDM Incorporated says trustees, directors, and managing agents are now under more pressure to ensure conduct rules are lawful, clearly written, and applied consistently. She warns that poor governance can lead to disputes, regulatory action, and costly legal battles.
Sutton notes that conduct rules often only receive attention after tensions between neighbours have already escalated. However, these rules actually shape daily life in community schemes long before any complaints reach trustees, managing agents, or the Community Schemes Ombud Service (CSOS).
She explains that recent case law reinforces a simple principle that conduct rules must be fair, clear, consistently enforced, and legally valid. In addition, trustees and directors cannot enforce rules beyond their statutory powers or exercise powers not granted by law or their scheme’s own documents.
Court rejects attempt to cut off electricity and water
In one recent case, a body corporate tried to disconnect a unit’s electricity and water after the owner failed to pay levies. The court decided that this action went beyond the body corporate’s powers. The ruling found that only the local municipality, not the body corporate, could disconnect basic services.
The judgment also criticised the body corporate for failing to follow proper debt collection procedures. The court stressed that decision-makers must stick to the powers granted by law and the scheme’s own rules, and that they must respect due process when enforcing conduct rules and collecting debts.
Court overrules homeowners’ association trustees
In another case, a homeowners’ association approved building plans that did not meet the estate’s architectural guidelines. Neighbours objected and took the matter to court.
The court reviewed and overturned decisions that approved building plans which did not comply with the scheme’s architectural guidelines. Trustees later tried to excuse the non-compliance without following the proper application process, but the court also set aside that attempt.
The ruling made it clear that trustees must apply architectural and governance rules as they stand and cannot fix non-compliance by acting outside the powers granted to them by their own documents.
Following proper process is essential
Sutton says that following the right procedures is now central to whether conduct rules can actually be enforced.
For sectional title schemes, any changes to conduct rules must be approved through the CSOS before they can be enforced. If not, enforcement can be legally challenged.
Homeowners’ associations follow a different compliance process, but Sutton points out that their documents must still fit with the association’s constitution. This covers the memorandum of incorporation, architectural guidelines, and other key documents that regulate how decisions are made and rules are followed.
Courts are getting tougher on poor governance
Sutton urges schemes to keep their conduct rules up to date and easy for owners, trustees, and decision-makers to find. Clear rules help everyone know their rights, obligations, and what can be enforced before problems turn into formal complaints or court cases.
She says the courts are sending a clear signal. Decision-makers in community schemes must stick to the powers they have been given, and rules must be drafted with care and enforced legally.
The legal trend is clear. Decision-makers in community schemes must act within their powers, and the rules must be drafted and enforced carefully, Sutton says.
She concludes that recent judgments show it is getting harder to justify or defend poor governance when these decisions are challenged in court.
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