By Auren Freitas dos Santos
Section 9(4) of the Constitution of South Africa states that a person cannot be discriminated against due to their disability. Prescribed conduct rule 1(2) was enacted on 7 October 2016 to give effect to the provisions of section 9(4) of the Constitution, and provides as follows:
“An owner or occupier suffering from a disability and who reasonably requires a guide, hearing or assistance dog must be considered to have the trustees’ consent to keep that animal in a section and to accompany it on the common property.”
It is no secret that South Africa lags far behind the rest of the world in understanding that service dogs are not just used by people who are blind. It is therefore very important to note that prescribed conduct rule 1(2) not only applies to visually impaired persons, but also to persons suffering from other disabilities and who reasonably requires a guide, hearing or assistance dog (colloquially referred to as “service dogs”).
There are various types of service dogs that are trained in South Africa to assist persons with a wide range of disabilities or impairments. The following is a non-exhaustive list of the most common types of service dogs:
- Service Dogs that assist persons with mobility or physical impairments.
- Guide Dogs or Seeing Eye Dogs that assist persons with visual impairments.
- Hearing Dogs that assist persons with hearing impairments; and
- Therapy or Assistance Dogs that assist persons with intellectual or mental impairments.
The use of the last category of service dogs has grown in popularity over recent years due to an increase in medical studies showing that owning a Therapy or Assistance Dog offers positive effects psychologically, socially, and physiologically. These dogs can be used to assist with a wide range of intellectual or mental impairments ranging from autism, post traumatic stress disorder (PTSD), seizures, depression, anxiety, panic attacks, obsessive compulsive disorder, dementia, phobias, and paranoia.
Prescribed conduct rule 1(2) applies to all sectional title schemes in South Africa, which means that no person suffering from a physical, visual, hearing or intellectual impairments, and who reasonably require the assistance of a service dog, may be denied permission to keep a service dog in their section or to be accompanied by it on the common property.
However, not just any dog qualifies as a service dog. These dogs must be trained by a person certified by the Safety and Security Sector Education and Training Authority (SASETA) to carry out specific tasks to meet the unique needs of the disabled person. These dogs are also required to wear certain equipment such as special vests and/or harnesses.
Prescribed conduct rule 1(3) allows the trustees to provide for any reasonable condition in regard to the keeping of a service dog in a section or on the common property and it is recommended that the following conditions be laid down by the trustees to regulate service dogs in their scheme:
- The owner must provide the trustees with proof that the dog has been trained by an accredited establishment;
- The dog must be required to wear an identification jacket or vest at all times while on the common property, displaying the details the establishment that provided the training; and
- The service dog and its owner must respect other owners and occupiers sharing the common property.
A person suffering from a disability who is denied permission to keep a service dog in their section is entitled to approach the Human Rights Commission for relief and therefore bodies corporate should ensure that these rights are protected at all times. However, the presence of service dogs in your body corporate should not be cause for alarm, provided that the aforementioned conditions are set and respected.
Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, is a Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law.
Contact him at www.theadvisory.co.za or email email@example.com if you require any assistance drafting rules to regulate your scheme’s internal complaints procedure or advice in dealing with a complaint within your community scheme.