By Auren Freitas dos Santos
A recurring misconception in sectional title governance is the belief that trustees can only regulate conduct that is already expressly prohibited in the conduct rules. The argument usually follows a familiar pattern: “If it wasn’t forbidden when I started, you cannot now change the rules and apply them to me.”
That argument is attractive—but wrong.
A recent judgment handed down by the Western Cape Division of the High Court on 27 May 2026 provides a useful illustration of why.
The case concerned a commercial tenant operating from a mixed-use sectional title scheme in Cape Town CBD. The premises had been leased as a “bar lounge”, but over time the operation became the subject of numerous complaints from residents regarding noise, nuisance, late-night activity and other disturbances typically associated with a nightclub environment. The body corporate also raised concerns regarding security, insurance implications and the overall impact on the residential character of the scheme.
Faced with these complaints, the body corporate did not simply sit back and complain. It exercised its statutory powers by amending its conduct rules, with CSOS approval, to prohibit businesses of a nightclub nature and other activities that were causing disruption within the scheme.
The tenant resisted these changes and advanced an argument that will sound familiar to many trustees and managing agents. In essence, it argued that because these restrictions did not exist when it first commenced operating from the premises, the body corporate could not subsequently change the rules and apply them to its business.
The court rejected that argument.
In doing so, it reminded us of something more fundamental: a body corporate does not merely administer a static set of rules. It carries a continuing statutory obligation to ensure that the scheme functions in a manner that protects the collective interests of all owners and occupiers. That obligation necessarily includes the ability—and often the duty—to amend conduct rules when lived reality exposes gaps in the existing regulatory framework.
Conduct rules are not a complete code designed to anticipate every future use of a scheme. They are a living document, expressly capable of amendment “from time to time” with CSOS approval. That wording is not incidental. It reflects a recognition by the legislature that sectional title schemes are dynamic communities that face new challenges as circumstances evolve.
The judgment is particularly instructive in its emphasis on the statutory role of bodies corporate. The court highlighted that under the Sectional Titles Schemes Management Act, a body corporate is not a passive rule-enforcer. It is actively charged with managing and controlling the scheme in the interests of all owners.
Sections 3 and 4 require bodies corporate to manage and enforce the rules of the scheme. Section 13 obliges owners not to use their sections or the common property in a manner that causes nuisance or unreasonable interference. Prescribed Management Rule 30 goes even further by requiring bodies corporate to take reasonable steps to ensure compliance with the Act and to prevent unreasonable use that interferes with others.
This is a point that is often overlooked. Bodies corporate do not merely have the power to regulate undesirable conduct. They have a duty to take reasonable steps to do so. That duty becomes impossible to fulfil if trustees are confined to outdated or incomplete rules whenever new problems emerge.
The judgment is equally important for its treatment of the argument that amended conduct rules are somehow “retrospective”. The court drew a clear distinction between punishing past conduct and regulating ongoing conduct.
The body corporate was not seeking to punish the tenant for activities that occurred before the amended rules came into force. Rather, it was seeking to regulate conduct that continued after the rules had been validly adopted and approved. The rules were therefore being applied prospectively, not retrospectively.
This distinction is critical because many objections to amended conduct rules are based on a misunderstanding of how they operate. Once a rule has been validly adopted and approved, it governs conduct going forward. The fact that the conduct may have commenced before the amendment does not create immunity from future compliance.
The broader principle emerging from the judgment is that sectional title governance is inherently adaptive. It is not designed to preserve fixed expectations of use indefinitely. It is designed to ensure the long-term sustainability of a shared living environment.
When new forms of conduct emerge—whether in the form of short-term letting, disruptive commercial activity, technological developments affecting privacy or security, or any other unforeseen challenge—the body corporate is not required to wait for the situation to become intolerable before acting. It may identify the problem, amend its rules, obtain the necessary approval from CSOS and enforce those rules going forward.
Much of the resistance to amended rules stems from a tension between individual expectations and collective interests. Owners and occupiers often expect certainty regarding how they may use their property. The community, however, is entitled to protection from nuisance, risk and unreasonable interference.
This judgment reaffirms that individual expectations cannot override the statutory mandate imposed on bodies corporate to regulate schemes in the interests of all owners and occupiers. What appears to be “just one business” or “just one owner’s conduct” can have far-reaching consequences for security, insurance, property values and the peaceful enjoyment of the scheme as a whole.
For trustees and managing agents, the message is straightforward. If conduct within a scheme creates harm, risk or unreasonable interference, and the existing rules do not adequately address the problem, the answer is not paralysis. The answer is amendment.
Conduct rules are not a ceiling on governance. They are a mechanism for governance. When properly adopted and approved, they apply to ongoing conduct, even where that conduct pre-dates the amendment. That is not retrospective punishment. It is responsible governance.
Sectional title living depends on a delicate balance between individual rights and collective interests. This judgment is a timely reminder that the balance is not maintained by freezing rules in time. It is maintained by allowing rules to respond to reality as it unfolds.
In that sense, the ability to amend conduct rules is one of the essential tools that allows sectional title schemes to remain functional, sustainable and harmonious communities.
If you have any questions regarding this topic, feel free to contact us at info@theadvisory.co.za for a no-obligation quote.
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. Reach out to him via email at info@theadvisory.co.za for a no-obligation quote to discuss this topic in more detail.
