Constitutionality of the rules governing sectional title schemes

[摘要] ENGLISH ABSTRACT: Various types of rules govern many areas of life in a sectional title scheme. TheSectional Titles Act 95 of 1986 prescribes model management and conduct rules inits regulations. Other non-prescribed rules are adopted by either the developersinitially or later by the trustees of the body corporate. These rules provide for thecontrol, management, administration, use and enjoyment of the sections and thecommon property in the scheme. Sectional owners and other occupiers have theentitlements of use and enjoyment of their individual sections and their share in thecommon property of the sectional title scheme, in proportion to their participationquota. These entitlements are restricted by the rules in operation within the scheme.Although these rules limit the entitlements of sectional owners and other occupiers inthe interest of the sectional title community, they may not be unreasonable in theirapplication and effect. In some instances, the application of the rules might exceedthe bounds of reasonableness and result in unfair discrimination, arbitrarydeprivation, unfair administrative action or restrictions on access to courts for disputeresolution. If certain rules are unreasonable in their application, based on one ormore of the abovementioned grounds, the court must interpret the potentiallyimpermissible rules and if the court cannot avoid a declaration of invalidity byimplementing a constitutional remedy such as reading-up, reading-down, reading-inor severance, these impermissible rules will need to be substituted, amended orrepealed and replaced because they are potentially unconstitutional and invalid.After a statutory and constitutional enquiry into the nature, scope, application,operation and effect of the rules governing sectional title schemes, it can beconcluded that the various types of rules governing sectional title schemes restrictand limit sectional owners' and occupiers' entitlements of use and enjoyment of theirindividual sections and share in the common property. However, after being testedagainst section 25 of the Constitution of the Republic of South Africa 1996 and othernon-property rights entrenched in the Bill of Rights, to determine if the rules arereasonable in their application and constitutionally permissible, it can be seen thatthe application of the rules do not necessarily amount to arbitrary deprivations of property and that they can be justified in terms of the Constitution because there issufficient reasons for the particular regulations and they are procedurally fair.The various different types of rules governing sectional title schemes serve asreasonable regulations in as far as they contribute to a harmonious relationshipbetween the trustees of the body corporate and the sectional owners and occupiersas members of the body corporate as well as between the members of the bodycorporate inter se. The rules serve an important function in this regard. Therefore,they are considered reasonable and constitutionally valid in as far as they do notenforce excessive regulation and as long as they are equally applicable and do notunfairly differentiate in their application.

[发布机构] Stellenbosch University