1. Establish the type of breach
Something that has affected you personally e.g. noise nuisance, parking dispute.
Something that affects the whole scheme, e.g. badly maintained section/s or common property, unapproved improvement/s on common property.
2. Handling the Breach
- If it is a personal transgression, approach the person/s yourself, and attempt to resolve the matter amicably. Has the owner/occupant already been approached regarding this breach?
Where required, call SAPS to address the complaint. Where the matter is reported to SAPS, retain the case number for future reference.
- If it is a scheme transgression or if the personal transgression could not be resolved verbally, send a formal complaint form specifying dates, times, and the type of breach.
- The Governing Body will review the complaint and decide whether the Community Scheme should take up the matter.
If the Governing Body decides to take up the matter, the following process will be followed:
- A formal breach of rules letter will be sent to the respondent.
- If the breach continues, a meeting between the parties is recommended. Audi alteram partem – “let all sides be heard” rule to be applied.
- If the breach continues, a penalty in terms of the rules may be applied at the discretion of the Governing Body. Where the respondent disagrees with the dispute, legal adjudication is recommended prior to implementing penalties.
Note: Where a member of the governing body is also a complainant, that person will not be involved in the decision on the penalty, if any, to be imposed. Nemo iudex in causa sue – “no-one should be a judge in his own cause”.
Should the breach continue and/or there are no penalty clauses in the rules then in respect of Sectional Title Schemes, the trustees may follow the process set out in CSOSA, Section 38 & 39.
CSOSA 38 – Applications
(1) Any person may make an application if such person is a party to or affected materially by a dispute.
(2) An application must be— (a) made in the prescribed manner and as may be required by practice directives; (b) lodged with an ombud; and (c) accompanied by the prescribed application fee.
(3) The application must include statements setting out— (a) the relief sought by the applicant, which relief must be within the scope of one or more of the prayers for the relief contemplated in section 39; (b) the name and address of each person the applicant considers to be affected materially by the application; and (c) the grounds on which the relief is sought.
(4) If the applicant considers that the application qualifies for a discount or a waiver of adjudication fees, the application must include a request for such a discount or waiver.
CSOSA 39 – Prayers for relief
An application made in terms of Section 38 must include one or more of the following orders:
(1) In respect of financial issues.
(2) In respect of behavioral issues.
(3) In respect of scheme governance issues.
(4) In respect of meetings.
(5) In respect of management services.
(6) In respect of works pertaining to private areas and common areas.
(7) In respect of general and other issues.
In HOA’s the right of recourse as set out in the relevant governing documents (whether Companies Act, MOI, or Rules) must be followed.
If the breach continues and the governing body believes the matter should not be dealt with by the Body Corporate/Association then the complainant can follow CSOSA, Section 38 & 39 (Sectional Title) or the recourse defined in the governing documents (HOA) in their personal capacity against the respondent.