ANIMAL RIGHT IN THE SECTIONAL TITLE COMMUNITY?

Rule 1 of the Standard Conduct Rules prescribed for sectional title schemes prohibits any owner or occupier from keeping a pet without the written consent of the trustees. Being the first rule, the legislator probably foresaw that this restriction would be prominent and perhaps controversial.

Opponents to the keeping of animals in the sectional title community may interpret such prominence as indicative of a principle against the keeping of pets. In furtherance of such assumed principle, trustees or owners sometimes attempt to introduce amended rules, or, alternatively, so-called "house rules" to prohibit the keeping of pets absolutely.

It is undeniable that Rule 1 is primarily aimed at restricting the keeping of pets in the community. In addition, our Constitution does not confer any explicit rights upon individuals to keep pets. A pet-loving owner or prospective owner of a unit seems to be at a definite disadvantage. However, if we examine the situation more closely, a somewhat different picture emerges.

It should be noted that the restriction upon owners not to keep pets without the written consent of trustees, is itself subject to an explicit limitation that such consent may not be withheld without good reason. The first question would then be: "What would constitute a good reason to refuse permission to keep a pet?" To answer this, consideration should be given to the nature of the pet, the circumstances of the owner, the arrangements proposed by the owner to avoid creating a nuisance and the probable effect on neighbours. The point here is that each case must be judged on its own merits.

Rule 1 allows trustees to attach conditions to their consent. It is advisable that conditions should always accompany, and be embodied in, the written consent itself. These conditions should themselves not be unreasonable. If the conditions are not adhered to, the consent may be withdrawn. By implication a consent, once given, may not be withdrawn unless the relevant conditions have been breached.

Because bodies corporate have the power to amend rules, the next question is whether the owners may formulate a rule prohibiting the keeping of pets absolutely. On the face of it, the power of owners to make rules of this nature seems to be unrestricted. But such power is always subject to the provisions of the Sectional Titles Act, which admonish in section 35(3) that all rules made by the body corporate must be reasonable. Depending on the circumstances, a rule prohibiting the keeping of pets conclusively, may be unreasonable.

Other, more obscure limitations to the power of rule-making exist. One must, for example, today also consider the provisions of the Bill of Rights contained in our new Constitution. No form of legislation or rule-making is out of reach of its tentacles. It is therefore interesting to investigate whether a right to keep a pet in a sectional title community has any constitutional underpinning.

Our 1996 Constitution has the values of dignity, equality and freedom at its foundation. Although a number of specific "freedoms" are expressly mentioned in the Constitution, the concept of freedom is not limited to those only. Section 9(2) states that equality includes the full and equal enjoyment of all rights and freedoms. An injunction not to keep a pet, would conflict with the individual's freedom to choose to keep a pet. It would, however be wrong to seek to apply this constitutional provision without considering further factors. One important consideration is that, when entering a sectional title community, whether as owner or merely as an occupier, one willingly sacrifices certain freedoms by submitting to the Rules of the scheme. Such sacrifices are necessary because a sectional title community would simply not function if all occupiers insisted in exercising all such rights as one would normally enjoy in a less restricted environment. This reality is acknowledged in section 36 of the Constitution which provides that the rights contained in the Bill of Rights may be limited, if such limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.

A picture, that bodies corporate may not summarily and blindly truncate the right to keep pets, now becomes more clear. In order to deny a freedom which has constitutional underpinning, trustees are accordingly constrained to consider the reasonableness and justification of such deprivation in every individual case. This they cannot do if a rule has been put in place whereby the keeping of pets is absolutely forbidden.

Furthermore, section 33 of the Constitution obliges trustees to exercise just administrative action that is lawful, reasonable and procedurally fair. This right includes the subject's rights to a fair hearing and to receive written reasons.

The principle of equality, being a prominent basic value of the Constitution, would also be infringed if a person, being a pet-owner, is effectively prevented from acquiring accommodation in a particular sectional title scheme by means of an absolute prohibition or unreasonable ruling by trustees. The example of a blind person with a guide dog comes to mind. It is significant that Standard Conduct Rule 1, formulated years before our new Constitution, reflects the values later moulded into constitutional principles by our Bill of Rights. This rule should not be tampered with lightly, except perhaps in order to make more detailed provision for its administration.

No, it is probably not appropriate to talk of "animal rights" in the context of sectional title ownership. But trustees will be well advised to approach the framing and implementation of rules regarding the keeping of pets with sensitivity, care, common sense, and a sound knowledge of their own powers and limitations thereto.

Forum: Tertius Maree by prokureurs Maree & Lourens Ing verskaf hierdie rubriek. Die firma se nommer is (021) 887 4747.

DistrictMail, 23 April 1999