Unveiling Unconstitutional Rules: A Closer Look at Community Scheme Regulations

Living within a community scheme brings a unique set of rules and regulations that shape our daily lives. These rules, governed by the Constitution of the Republic of South Africa, ensure harmony and fair treatment for all residents. However, the reality is that not all rules align with constitutional standards, and the Community Schemes Ombud Service (CSOS) is no stranger to encountering such challenges. In this blog post, we explore instances of unconstitutional rules within community schemes.

Constitutional Integration in Community Scheme Rules

The fabric of our daily lives is intricately woven with the threads of the South African Constitution, and nowhere is this more evident than in the rules of community schemes nationwide. Despite the clear constitutional guidelines, some schemes attempt to register rules that fall short of constitutional standards. The CSOS often witnesses such attempts and addresses them on an ongoing basis. The primary objective of the article is to provide our readers with some examples of undesirable, non-compliant, and unconstitutional rules within community schemes.
 

Domestic Staff Rights: A Fair Evaluation

One striking example of contentious rules within community schemes pertains to the rights of domestic staff. Rules prohibiting them from receiving visitors, talking to each other on common property, or even walking around without specific identification have raised ethical concerns. It's essential to ask whether such rules are fair, and according to Section 23 of the Constitution, the answer is a resounding "NO." In a landmark case (Singh and Another v Mount Edgecombe Country Club Estate Management Association), the Kwazulu-Natal High Court declared these rules unreasonable and unlawful.
 

Slaughtering of Animals: Balancing Beliefs and Rules

Another area of concern involves rules prohibiting the slaughtering of animals for cultural or religious purposes. While conditions for slaughter may be imposed, outright prohibition contradicts the Constitution. Section 31 of the Bill of Rights guarantees the right to practise religious or cultural beliefs, emphasising that community schemes are not exempt. The detailed conditions include notifying trustees, authorities, and adjacent units to ensure humane treatment.
 

Estate Agents: Balancing Choice and Exclusivity

The limitation on the choice of estate agents is another issue that raises eyebrows. While estates or complexes can request the registration of estate agents, restricting owners to only deal with a few specific agents violates their rights to market, sell, and let their units as they see fit. This limitation directly contradicts constitutional principles.
 

Quality Assurance of Scheme Governance Documentation

To ensure that community schemes adhere to constitutional principles, the CSOS requires the quality assurance of all scheme governance documentation. This includes making sure that the scheme is adhering to the various CSOS documents such as Form B1 or Form B, as well as providing the CSOS with all scheme Rules, Resolutions, and Minutes of the Meeting. This adherence to CSOS processes ensures that any and all community scheme governance documentation meets the necessary standards.
 

Administrative Processes: Navigating CSOS Requirements

Submitting documentation to the CSOS involves adherence to specific procedures. This includes sending submissions to designated CSOS email addresses, with allocation timelines of 30 days for existing rules and one week for new developments. The CSOS further offers a template Memorandum of Incorporation (MOI) upon request, along with free training, education, and awareness on the Companies Act and CSOS Legislation.
 

So, before submitting draft rules to the CSOS, it is crucial to ensure they are reasonable, apply equally to all residents, avoid discrimination, and have a legitimate purpose. By doing so, community schemes can create rules that not only enhance communal living but also stand up to constitutional scrutiny.
 

If you require any assistance with ensuring that your community scheme is fully compliant, contact our Community Schemes department on 031-251 7300.