A perception exists that the Sectional Titles Act 95 of 1986 ("the Act") does not have sufficient certainty nor provide adequate remedies for the trustees to enforce sectional title rules. The author feels that this is not so, provided the rule is valid i.e. a management or conduct rule of the type which appears in Annexures 8 and 9 of the Regulations of the Act.
Central to his argument is Section 38 (j) of the Act which reads as follows:
"Powers of bodies corporate. - The body corporate may exercise the powers conferred upon it by or under this Act or the rules, and such powers shall include the power -
(j) to do all things reasonably necessary for the enforcement of the rules and for the
control, management and administration of the common property."
In enforcing the rules, management rules 28(2) and (3) are also of importance, since they place a duty on the trustees to:
"28. (2) ... do all things reasonably necessary for the control, management and administration of the common property in terms of the powers conferred upon the body corporate by section 38 of the Act.
(3) ... do all things reasonably necessary for the enforcement of the rules in force."
In the light of these sections two aspects of the application of the rules are then looked at.
1) Can a fine be imposed?
Regarding s 38 (j) the following is quoted from The Law of South Africa (LAWSA) First reissue, Vol 24, in paragraph 289 on 237:
"This implies inter alia that the body corporate can decide by majority resolution on a penalty for the enforcement of a particular rule of the scheme. The wide residual power embodied in the final phrase validates numerous actions taken by the body corporate as long as it concerns the control, management and administration of the common property."
The wide residual power therefore should allow for a fine to be imposed especially as the words "do all things reasonably necessary for the enforcement of the rules in force" imply this. In investigating the raising of a fine the author finds further support in the fact that - Conduct Rule 3(1) allows trustees to "... cause to be removed or towed away, at the risk and expense of the owner of the vehicle, any vehicle parked, standing or abandoned on the common property without the trustees consent." - because, after all, having ones car towed away is surely more expensive and maddening than a fine. Further, the rules do not explicitly prohibit fines; it is only a question then that they meet the criterion of being "reasonably necessary".
Under certain circumstances Section 38 (j) does not apply and one of these is when a difference exists between the owner and the body corporate. Arbitration can be entered into in terms of regulation 71 of the Act only if a dispute exists, and according to Graham Paddock -
"There must be a real difference of opinion between the parties. An owner who does not pay his levies or fails to comply with his obligations in terms of the Act or the Rules does not automatically have a dispute with the body corporate. A simple refusal or inability to perform an obligation does not give rise to a dispute. But if the owner refuses to pay a levy because he believes that the trustees have not followed the proper procedures in raising that levy, there is a dispute. A dispute will exist if, for example, an owner refuses to remove a pet from the premises because he believes that the trustees have been unreasonable in withholding their consent to his keeping his pet."
Disputes cover much aspect and include differences over the control, management and administration of a scheme as well as the use and enjoyment of the sections and common property. In looking at the use of arbitration, the author notes that one must remember that a sectional title is a small community and if arbitration is abused it could create the perception that the trustees are in opposition to the other owners. The use of an interdict is also mentioned briefly.
The article ends with the conclusion that the application of management rules 28(2) and (3) and Section 38 (j) can be used to impose a fine, but only if it is reasonable. If the owner resorts to arbitration then the trustees are bound by the arbitrator's ruling.