Fluffy, the k9 terror of Klein Paradys – Part 1

In the Klein Paradys Sectional Title Scheme (“community scheme”), lives a dog named Fluffy. Fluffy has been nothing but a nuisance since he and his family moved in 6 months ago. The dog barks all day and night, howls at the moon and has bitten multiple children in the parking lot. His transgressions do not stop there, Fluffy also digs tunnels under the neighbours’ fences to vandalise the garden flowers (one such garden belongs to the next-door neighbour, Butch). Butch is a 67-year-old retiree who was recently widowed and has the most beautiful garden in the entire complex.

With the extensive list of contraventions, it is no surprise that the other members of the body corporate want the dog out of the community scheme. In such a situation, however, a body corporate is not allowed to forcibly remove a pet from a person’s possession. But the trustees of the body corporate can, in terms of Prescribed Conduct Rule (“PCR”) 1(4) of the STSMA Regulations, withdraw their consent for the family to have the pet if any of the conditions imposed are breached.

The trustees of the community scheme went ahead and revoked the permission, on the basis that the family breached the conditions imposed by the trustees when granting them consent to keep a pet.

The trustees can only withdraw their permission if it is reasonable to do so.

It would be reasonable if:

• the conditions are not being met (for example an owner keeps four dogs instead of two);
• the pet is causing a nuisance to other owners or occupiers (for example where a dog is barking persistently); or
• the pet is considered dangerous to other owners or occupiers (for example where the dog bites another dog or child).

If, and when, the conditions are breached, the trustees can, after ensuring that they have given the owner or tenant a reasonable opportunity to put forward their case, withdraw their approval. Whether or not there was a breach must be decided based on natural justice.

The owner must be given:

• notice of the breach.
• an opportunity to remedy the situation.
• a hearing where evidence is given.
• the trustees must be decided by majority vote.
• the trustees’ decision must be minuted;
• the owner must be given written notice of the withdrawal of consent; and
• the pet owner must be given a reasonable time to remove the pet.

In principle, where the trustees have reasonably withdrawn their consent to keep a pet, the person concerned is then not entitled to continue keeping that pet in the community scheme. However, the enforcement of this is not so simple for the trustees. The family refused to remove Fluffy their dog, even after receiving reasonable and fair notice.

The trustees of Klein Paradys have proceeded to lodge an application for dispute resolution at Community Schemes Ombud Service (“the CSOS”), in terms of section 38 and 39 of the Community Schemes Ombud Service Act 9 of 2011 (“CSOS Act”), seeking relief for the removal of the pet from the community scheme.

An application must be made in the prescribed manner and as may be required by practice directives; lodged with an ombud and accompanied by the prescribed application fee.

The application must include statements setting out:

• the relief sought by the applicant, which relief must be within the scope of one or more of the prayers for the relief contemplated in section 39 of the CSOS Act;
• the name and address of each person the applicant considers to be affected materially by the application;
• the internal dispute resolution followed in an attempt to resolve the matter;
• the grounds on which the relief is sought;
• all supporting documentation relevant to the application.

The appropriate prayer for relief is contained in section 39(2)(b) and/or (c) in the CSOS Act, which states that:

Since this dispute was officially lodged with CSOS, Klein Paradys has become an absolute nightmare. Needless to say, the family is not taking this laying down. Klein Paradys is having their Annual General Meeting (AGM) next month, where the trustees are planning on presenting this issue.

Keep an eye out for the second part of Fluffy’s story to find out how the AGM went and what Fluffy’s fate hold within the Klein Paradys complex with the guidance of CSOS.