I have come across many absurd scheme governance rules over the years, but one in particular is an outdated apartheid-style rule relating to domestic employees and the various restrictions placed on them, often referred to as “domestic rules”.
Many community schemes in South Africa have rules aimed at prohibiting domestic employees from entering and moving around the estate unattended. Placing time restrictions during which domestic employees may gain access to the estate. Prohibiting domestic workers from spending the night at their employer’s property. Prohibiting domestic workers from laughing or having conversations on common property.
In most instances, these types of rules have been carried over from our dark pre-democracy past. Shockingly, however, it appears that some community schemes continue to intentionally introduce this type of rule, post-1994, and continue to enforce the provisions thereof to the detriment of the domestic workers.
In the judgment of Singh and Another v Mount Edgecombe Country Club Estate Management Association Two (RF) (NPC) and Others (AR575/2016) [2017] ZAKZPHC 48; [2018] 1 All SA 279 (KZP); 2018 (1) SA 615 (KZP) (17 November 2017) the Kwazulu-Natal High Court correctly declared that these so-called “domestic rules” are unreasonable and unlawful.
The following extract from the Singh judgment perfectly summarises the Court’s disdain for these types of rules:
“From a constitutional point of view, their (domestic workers’) rights in this regard are severely restricted. The first respondent appears to have categorized them (domestic workers) into a class of people who pose a security risk to people living on the estate. Their position within the estate is reminiscent of the position that prevailed in the apartheid era: while they are good enough to perform domestic duties for their employers on the estate, which include the task of pushing perambulators on the roads, they are precluded from exercising any rights derived from public law and the Constitution. The restrictive nature of these rules also affect other basic rights of domestic employees such as their rights to human dignity, equality, freedom of association, freedom of movement, freedom of occupation and fair labour practices.” (see para 43)
I strongly recommend that community schemes across the country test their rules against the provisions of the Constitution, the Sectional Titles Schemes Management Act and its Regulations, the Community Schemes Ombud Services Act, municipal by-laws, case law and any other relevant or applicable legislation. If it is found that a rule is is irreconcilable with these sources of law, or is considered to amount to excessive or unreasonable regulation, or results in unfair discrimination when applied, the members of the scheme should act swiftly to bring their scheme into the 21st century by removing these so-called “domestic rules”.
Article reference: Paddocks Press: Volume 15, Issue 2.
Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, has previously been a Portfolio Manager and a Legal & Compliance Officer of a large managing agency and the lead consultant at Paddocks.
This article is published under the Creative Commons Attribution license.
