Finding a proper balance between slack management and management by dictatorship in housing schemes is an ongoing challenge, and a particular solution is not necessarily appropriate for all schemes. We know that if the administration or management of a sectional title scheme or home owners’ association is neglected, it will inevitably lead to loss of unit values. On the other hand, too tight a rein on the lifestyle of owners leads to unhappiness and disputes.
Adding to the problem of finding a suitable balance is the fact that many owners are not prepared to serve as trustees, but are quick to complain whennthings are not done to their taste. The opposite side of this coin is that owners who are prepared to serve are sometimes inclined to wield excessive authority and forget that the management of a home owners’ association or body corporate is supposed to be based on democratic principles.
A further factor is that owners, and even trustees, are often not sufficiently conversant with basic legal principles, the provisions of the applicable legislation, or even their own rules and constitutions. Drawing the line between a despotism and disorder is seldom easy, as is demonstrated by the recent judgment of the Western Cape High Court in the matter of Kenrock Homeowners Association v Mewett. The dispute was about the fact that the respondent, an owner of an improved erf within the scheme, had erected a wire fence around his property which the executive committee regarded as being “in clear contravention of the Kenrock Architectural and Landscape Design Manual.” This manual allowed the use of a “simple black metal fence ” and alternatively a fence of “Bekeart Mesh – 50m X 50mm supported on 125mm diameter machined and treated poles with round tops, to a maximum height of 1,8 on the side and common boundaries.”
Clause 13.6 stipulated as follows:
“Fences not permitted include –
13.6.1 Vibracrete type fencing
13.6.2 Timber fences
13.6.3 Face brickwork.”
Clause 2.1 4 states:
“Under no circumstances will vibracrete walls or walls in an unsuitable style or colour be allowed .”
Clause 2.1.5 encouraged the use of creepers on fences.
The fence erected by the owner was of the ordinary mesh type, the pattern ofwhich is different to the specified Bekeart Mesh. The owner offered to cover the fence with creepers, but this was rejected by the committee, which insisted upon the fence being removed and replaced with a fence which complies with the provisions of the design manual. The matter was not resolved and penalties were imposed. Eventually the owner indicated that he would remove the fence, provided that the penalties were waived. At that time the penalties imposed amounted to R 7 880,00. The committee was not prepared to accept this offer and proceeded to launch an application for an interdict to enforce compliance.
The judgment commences with the words:
“This matter has a long and protracted history and is reminiscent of the Shakespearean comedy Much ado about Nothing .”
This introduction was already a clear indication of the judge’s feelings about the matter and the representatives of the home owners’ association must have uttered a collective sigh of disappointment upon hearing this. Judge Traverso found that “a proper interpretation of the constitution makes it clear that the provisions regarding the fences are not absolute or peremptory.”
The only peremptory parts of the provisions, in her view, were the provisions which prohibited vibracrete, etc.
The judge was of the opinion that the difference between Bekeart Mesh and the ordinary wire mesh used by the owner was hardly noticeable to the untrained eye and if creepers were planted (as encouraged by the provisions) it would be impossible to tell the difference.
The application to enforce compliance was dismissed with costs.
After initial hesitation I found myself in agreement with the judge that the clauses referred to are not absolute or peremptory. This conclusion is based upon the words “may be used” when referring to the types of fencing and affirmed by the fact that clause 2.1.4 in effect allows the use of walls, provided that they are not ” in an unsuitable style or colour.” This means that even walls (although not facebrick walls) are allowed and that the ‘prescribed’ fencing is no more than a suggested type.
What should we learn from this judgment?
Firstly, constitutions, rules and architectural guidelines should be drafted with great care and expertise.
Secondly, elected officers seeking to enforce provisions of their founding documents should make sure that they understand the material properly and should obtain legal advice in the case of any uncertainty. In the Kenrock case the committee probably did obtain legal advice to the effect that they had a sound case. And this brings us to the third lesson:
A private residential township or sectional title scheme is not a military compound and management should resist an impulse to blindly suppress all forms of individualism to the tiniest detail.