By Ané de Klerk
It is often said that Conduct and Management Rules without a Fining Rule have “no teeth”. As much as we would like owners and occupants to obey scheme rules simply because it is the right thing to do, the possibility of being fined for breaching rules has proved to be an effective incentive for compliance in practice. It is important to take note, however, that there is no automatic right to fine owners or occupants for breaching the rules and one can only do so if the scheme’s rules clearly provide for it.
A fining rule has to be drafted in a very specific way for it to be enforceable. Here are the legal requirements to be mindful of when drafting or assessing your fining rule for review:
1. WRITTEN TRANSGRESSION NOTICES
A fining rule must provide for not only one, but two transgression notices to be given to an alleged wrongdoer in writing before they can be fined. These written transgression notices must set out the alleged transgression of a specific rule contained in the scheme’s Management or Conduct Rules in a clear and easily understandable way.
2. TIMEFRAMES
In both of these written transgression notices, the alleged wrongdoer must be given a specific timeframe within which to rectify their behavior and/or stop behaving in a manner that breaches the specific rule or rules referred to in the notices.
3. RIGHT TO MEET AND DISPUTE
A fining rule must stipulate that the alleged transgressor has a right to meet with the body corporate’s board of trustees to dispute the allegation made against them before they are issued a fine. This right to be heard is a fundamental principle of procedural fairness. The process in this regard should also be stipulated in the rule – how and within how many days of receiving a written transgression notice the alleged wrongdoer must notify the trustees that they wish to meet, within how many days the trustees must then call the meeting, where the meeting must be held, etc.
4. LIMITED FINE AMOUNT
Exorbitant fines are strictly prohibited. The fining rule must provide for the amount of the fine/penalty that may be imposed after following due procedure as set out above to be less than the monthly levy payable by the owner of the unit concerned.
5. MEMBERS’ DECISION
The fining rule cannot authorise the trustees alone to determine the circumstances that validate fining someone nor the rand value of a fine or penalty to be imposed. Both the circumstances and the fining amounts should be set out in the scheme’s rules, as agreed to by the members either by special resolution (if it is contained in the scheme’s Conduct Rules) or unanimous resolution (if it is contained in the scheme’s Management Rules).
If you need help evaluating and amending your current fining rule or drafting a new one you are welcome to email info@theadvisory.co.za to obtain an obligation-free quotation for our assistance.
Found this article insightful and interested in learning more? Read more about the upcoming presentation of our course on Sectional Titles Schemes Management, developed and presented by the writer, here: UCT Sectional Titles Schemes Management online short course
Specialist Community Scheme Attorney (BA, LLB), Ané de Klerk, is a Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law. Her focus is legal education, which includes presenting seminars and running online and in-person training programs and courses. You can reach out to her via email at info@theadvisory.co.za to request an obligation-free quotation for assistance with sectional title fining rules.
