“Good rules make good neighbours.” (Old proverb, updated)
The many benefits of living in a residential complex come, naturally enough, with obligations as well as rights.
With its innate potential for conflict between competing rights, community living requires a fine balancing act between the individual rights of owners and residents, and the rights of the community as a whole.
Good rules make good neighbours
Which is of course where a complex’s rules and regulations come into play. Rules provide a structured framework to regulate issues of common concern. Management rules concentrate on administrative and financial issues, while conduct rules (which we’ll focus on in this article) address issues such as noise, pets, parking, use of common property and so on. They are essential not only for protecting everyone’s individual and communal rights, but also to minimise disputes, ensure long-term sustainability and maintain property values.
A well-managed complex benefits everyone – residents, investors, landlords etc.
The sight-impaired owner and his washing machine
Of course, conduct rules are meaningless without enforcement, and that exposes everyone concerned to another balancing act: consistent enforcement versus over-rigid and unconstitutional enforcement.
A recent Supreme Court of Appeal (SCA) decision highlighted this in the case of a complex with a communal washing area.
Before buying his unit in a complex in Gauteng, a visually-impaired man was assured by the estate agent – incorrectly as it turned out – that he would be entitled to modify the washing area directly outside his unit. He duly, without body corporate authority, moved his washing machine into the area and installed piping and a tap, with a security gate and plastic roof sheeting to protect it from the elements. All this, he said, was necessary both to ensure his safety (he cited the danger of slipping in water leaks which he wouldn’t be able to see) and security for his washing machine and clothes.
The body corporate was having none of that and removed the gate and plastic sheeting, citing its conduct rules which prohibit any owner from making alterations to the common washing area. It refused his request for an exemption from the rules on account of his visual impairment, a mediation attempt failed, and eventually his appeal against a CSOS (Community Schemes Ombud Service) ruling found its way to the SCA.
What came out in the wash
The end result? The body corporate is ordered to allow the owner exclusive use of a portion of the common washing area for his washing machine, plus he can install a protective cover over it at his own expense. He must maintain both in good repair, cannot damage the common area wall, has to pay a contribution levy, and must make good all changes when he leaves.
The Court’s reasoning gives us a clear roadmap to our rights, both as bodies corporate and HOAs trying to enforce rules and regulations, and as owners feeling prejudiced by unjustifiably rigid enforcement of them:
- The duty to reasonably accommodate persons with disabilities: Our Constitution prohibits unfair discrimination and enshrines a right to dignity and equality as per the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) which prohibits any failure to take steps to reasonably accommodate persons with disabilities.
- When rigid enforcement of rules isn’t justified: The body corporate’s refusal to accommodate the owner in this case didn’t take into account that his modifications were necessary for safety reasons, they were proportionate, tailored for his disability, and confined to what he considered essential to prevent harm to himself. They caused no undue inconvenience or hardship to other members of the scheme, nor any expense for the body corporate. Its rigid attitude in enforcing its conduct rules was not justified, and its failure to give him its conduct rules electronically or in Braille was unjust.
- What does “reasonable accommodation” entail? Perhaps the most critical of the Court’s findings is this: “To achieve the objective of equality, I find that reasonable accommodation in a case like this may include allowing structural modifications, granting exclusive rights or exempting disabled residents from burdensome rules.”
- The “minimum hardship to members” principle: At the same time, a body corporate must, in establishing what is and isn’t reasonable in the circumstances, “espouse the principle of minimum hardship to its members”. Witness the strict limits imposed by the Court in this case on the unit owner’s rights of usage.
Thin end of the wedge or just a balancing act?
There may be some concern amongst bodies corporate and HOAs that this is the “thin end of the wedge” when it comes to effective enforcement of rules and regulations. When faced with individual requests which go against the rules and regulations, where should bodies corporate and HOAs draw the line?
Ultimately, the safest course is probably to keep on performing that delicate balancing act we mentioned above, plotting a careful course between individual and communal rights fairly, impartially and reasonably. Common sense isn’t as common as it should be.
Whether you’re an owner, body corporate or HOA, we’re here to help you plot that course!
Bad Manager or Workplace Bully? Where the Law Draws the Line
“To avoid criticism, do nothing, say nothing, be nothing.” (Elbert Hubbard)
An unpleasant boss. A strained working relationship. A manager whose style leaves much to be desired. Sound familiar? For many employees, the line between a miserable workplace and an unlawful one is frustratingly blurry. A 2023 Labour Court judgment helps draw that line more clearly. And the verdict may surprise some employees who’ve been banking on a harassment claim.
A senior official takes her employer to court
A Deputy Director-General at the Department of Justice and Constitutional Development referred a claim of unfair discrimination to the Labour Court. She alleged that she had been harassed on arbitrary grounds (as opposed to listed grounds like “race” or “gender”) in contravention of the Employment Equity Act (EEA).
Her complaints were wide-ranging: inadequate administrative support and resources, the removal of some of her work functions and reportees, what she viewed as selective disciplinary sanctions, a precautionary transfer she experienced as a demotion, being denied international travel and refused leave requests, plus a failure by the Department to consider her grievances.
The Court dismissed her claim in full.
What does “harassment” actually mean in law?
The Court was at pains to distinguish between exercising ordinary managerial authority and conduct that crosses into unlawful harassment. The two are easily confused, and employees sometimes interpret unwelcome management decisions as harassment simply because the consequences are unpleasant.
For conduct to constitute harassment under the EEA, it must meet an objective test. It must:
- Impair the employee’s dignity. Feeling sidelined or unhappy is not enough. The conduct must cause demonstrable harm to dignity.
- Create a hostile or intimidating work environment. Tension and friction are regrettably common in workplaces. The bar is higher than mere discomfort.
- Be linked to a prohibited or arbitrary ground. This is the element that catches many claimants off guard. An “arbitrary ground” is an unlisted personal characteristic, but it must be inherent to the person, form the basis for the ill-treatment, and result in substantial harm comparable to listed grounds like race or gender. Generalised management decisions, however unwelcome, do not qualify.
Crucially, the test is objective, not subjective. What matters is not solely how the employee experienced the conduct, but how a reasonable person would assess it in context.
Where the DDG’s case fell short
The Court found that, objectively assessed, her complaints amounted to the unpleasant consequences of management decisions rather than harassment in the legal sense. Significantly, she was unable to explain why the treatment she experienced amounted to unfair discrimination. A bald allegation is not sufficient. Employees must clearly establish the link between the conduct and a dignity-impairing ground.
What employers and employees should take from this
Employers may take some comfort here. Issuing instructions, reallocating duties, managing performance, declining travel requests, and initiating investigations are ordinary management functions. Provided those decisions are rational, grounded in legitimate operational reasons, consistently applied, and properly documented, they will not automatically expose employers to harassment claims.
That said, the Court was clear that managerial discretion has its limits. Decisions must be fair, transparent, and free from personalisation or arbitrary whim. When they are not, they may give rise to legal challenge.
Employees should be aware that the EEA is not a catch-all for general workplace dissatisfaction. If your complaint relates to a transfer, disciplinary steps, or benefits, the proper route is likely the Labour Relations Act’s unfair labour practice framework, not an EEA harassment claim.
The distinction between a difficult manager and a workplace bully matters enormously, both legally and practically. If you are uncertain which side of the line your situation falls on, come and talk to us.
She Fell Out of a Safari Vehicle: When Disclaimers Fail
“The big print giveth and the fine print taketh away.” (Tom Waits)
You have almost certainly signed a disclaimer at some point. A waiver before a trail run, an indemnity form before a bungee jump, a clause buried in a brochure. Businesses rely on these documents to limit their exposure when things go wrong. A 2026 Supreme Court of Appeal judgment is a sharp reminder that a disclaimer is only as good as the process behind it, and that courts will not lightly allow a company to escape liability on the strength of fine print that was never properly agreed to.
A birthday surprise that ended in serious injury
An Australian tourist was travelling in a converted safari truck in Botswana as part of a Southern African tour arranged by a safari business. The trip had been booked by her life partner as a birthday surprise, without her knowledge. While the truck was moving, she stood up to access her locker, which the tour operator actively promoted as accessible while the vehicle was in motion. She lost her balance and lurched against a window which fell out of its frame. She fell through the opening onto the tar road and sustained serious injuries.
When she sued for damages, the company relied on two disclaimers. The courts were not persuaded.
When does a disclaimer actually bind you?
The party relying on a disclaimer bears the onus of proving that a binding agreement was concluded. That requires more than paperwork. Our law requires the following:
- Personal consent. A disclaimer binds a person only if they have personally agreed to it, or if someone signing on their behalf had proper authority to do so. A life partner, family member, or friend cannot sign away your legal rights without your knowledge and express authorisation.
- Adequate notice. The disclaimer must be displayed with sufficient prominence to reasonably come to the attention of the person against whom it is enforced. Burying a liability exclusion under an “Insurance” heading does not meet that standard.
- Specific and unambiguous wording. Disclaimers are interpreted restrictively. General wording will not exclude liability for negligence unless it does so clearly and unequivocally. Ambiguity counts against the party that drafted the clause.
- Consumer Protection Act compliance. Where serious injury or death is a risk, sections 49 and 58 of the CPA require that the risk be specifically drawn to the consumer’s attention in plain language and in a conspicuous manner before the activity commences.
Two disclaimers, two failures
Both disclaimers relied on by the business failed these requirements. The first, buried in a brochure under an insurance heading, was too general to clearly exclude liability for the negligence alleged and had not been adequately brought to the victim’s attention. The second was an indemnity form signed by her partner without her knowledge. The SCA found no credible evidence that she was even aware of its existence. The business had only itself to blame. It had failed to ensure that each participant had personally concluded a binding indemnity.
The Court further indicated that having actively promoted the conduct that caused the injury, any disclaimer purporting to exclude liability for it would likely have been contrary to public policy and thus unenforceable.
What this means for businesses and consumers
Businesses operating in high-risk environments cannot afford to treat indemnity documentation as a formality. A disclaimer is not a substitute for safe practices and proper risk management. Consent cannot be assumed, and general wording will not suffice.
For consumers, your right to bodily safety is not easily signed away, especially by someone else on your behalf.
The lesson is straightforward. A disclaimer must be clearly communicated, properly understood and formally agreed to. It will not protect a business where consent is absent, notice is inadequate, or the wording does not clearly cover the risk.
If your indemnity documentation needs reviewing, or you are unsure of your rights as a consumer, ask us.
Reckless Lending: You Could Lose Everything
“One of the greatest disservices you can do a man is to lend him money that he can’t pay back.” (Jesse H. Jones, entrepreneur)
A recent High Court decision provides yet another cautionary tale for lenders. The stakes are high: get this wrong, and you could lose everything.
Two big risks for lenders
Before you lend, be aware of two major risks that you need to manage. Both are imposed by the National Credit Act (NCA):
- Not registering as a credit provider: If you lend money without registering when you were required to do so, your agreement will be invalid and unenforceable. You will lose everything unless you can convince a court to make a “just and equitable” order allowing you at least a partial recovery. This is by no means guaranteed, so a risk not worth taking.
As a general guideline, if your loan is made at “arm’s length” you will probably have to register. In contrast, loans not made at arm’s length – such as informal loans between family and friends, or between related companies in a group – may be excluded. But the rules are complex and our courts have had to wrestle with several borderline cases over the definition of “arm’s length”. There is no substitute for advice specific to your situation.
Note that even a single qualifying loan, of any size, can trigger the requirement. The thresholds that previously limited it to commercial lenders and to larger loans fell away in 2014 and 2016 respectively.
- Reckless lending: Let’s turn now to the second risk, which applies whether you are properly registered as a credit provider or not. We’ll illustrate it with a recent High Court decision in which a family trust’s lending was held to be reckless and therefore irrecoverable.
A family trust lends R430k to a heavily indebted couple
A SAPS employee and her husband, heavily indebted to a range of creditors, approached a debt consolidation business for help in 2012.
Having carried out its version of the credit assessment required by the NCA, the debt consolidator organised a lifeline for the couple in the form of a R430,000 loan from an investor (a family trust) to pay off their debts. The loan was secured primarily by a bond over the couple’s house in Kraaifontein. A secondary security in the form of a sale agreement by the couple to the trust was to be held in reserve and activated only in need. The idea was that, after a short period of financial rehabilitation, the borrowers would refinance the loan through a bank, but that never happened.
When the borrowers defaulted on their repayments, the trust sued for R430,000 plus interest (a lot of money at 17.1% p.a. for 10 years), and an order allowing it to sell the couple’s bonded house to satisfy the debt.
The Court declared the credit agreement “reckless credit” and set it aside. The trust must now write off the balance of its loan and interest, cancel its bond over the couple’s house, and pay all the legal costs. Its only consolation is that the Court, in exercising its discretion to structure a just and equitable solution between the parties, allowed the trust to keep the R251,325 already paid to it.
What went wrong?
Why did the lender lose so badly? In a nutshell, the affordability assessment performed by the debt consolidator was flawed. Instead of asking whether the couple could afford this loan based on their existing financial means (as required by the NCA), the assessment relied on “a risky potential of future funding”, i.e., the speculative prospect of a mainstream bank granting a further loan in the future. The borrowers had always been over-indebted, this new loan made their situation even worse, and therefore the lending was reckless.
Lenders: How to avoid a “reckless lending” declaration
NCA regulations in force since 2015 set out in detail the various technical criteria and formulae to be used in assessments. This is just an overview of what you need to cover:
- Perform a proper credit assessment: This is make-or-break. It is a specific and fundamental requirement of the NCA that you carry out a proper assessment before granting credit, and you must be able to prove that you did so with documentary backup if challenged.
- Confirm affordability: Assess income, expenses, and existing debt, verifying everything with proper salary slips, bank statements, etc. As we saw in the case above, affordability must be assessed on the borrower’s current “financial means, prospects and obligations”, not future hopes or prospects. You must establish the borrower’s “discretionary income” by subtracting from total income all monthly deductions, living expenses and the like, with reference to a table of “norms” set out in the regulations.
- Check repayment history: You must take into account the borrower’s debt repayment history under other credit agreements.
- Explain everything fully to the borrower: Make sure the borrower fully understands the structure of the loan, the total costs, obligations, and risks. Use plain, non-technical language to avoid any claims of confusion or deception.
- Avoid over-indebtedness: You must be able to show that the repayment plan is realistic and affordable to avoid a finding of over-indebtedness.
Legal Speak Made Easy
FICA v RICA
We’ve all grumbled about being endlessly FICA’d and RICA’d. “Waste of time,” we mutter as we wade through all the red tape yet again. Compliance certainly is a hassle, but don’t blame the bank, service provider or conveyancer who asks for it. They are legally obliged to ensure compliance, and so are you.
But FICA and RICA? Yes, in some instances (like applying for a cellphone contract) both will be necessary. That’s because FICA (the Financial Intelligence Centre Act) focuses on fighting money laundering, tax evasion, and terrorism funding by verifying your identity and scrutinising financial transactions. RICA (the Regulation of Interception of Communications Act) focuses on telecommunications, requiring SIM cards and internet connections to be linked to a verified owner. Neither is of course anywhere near foolproof in fighting crime, but they do help – to everyone’s benefit.
Author: Gerings, Attorneys, Notaries, Conveyancers