By Lisa Schmidt, Associate and Ayanda David Katjitae, Associate
This article will address the implications of level 3 lockdown regulations in sectional title schemes and homeowners’ associations (“community schemes”).
Movement Within Community Schemes
During level 5 and 4 of lockdown, owners and tenants living in sectional title schemes were required to remain within their sections and there was controversy over whether they were permitted to move around on common property. It is generally accepted that owners and tenants residing in community schemes were only permitted to use the common property for the controlled circumstances outlined in the Regulations (for example the common driveway shared by all residents within a scheme).
The Disaster Management Act Regulations Amendment dated 28 May 2020 (“Regulations”), aim to ease lockdown restrictions during level 4 and, to this end, section 16 of the Regulations provides for new parameters on movement.
The Regulations have now further provided for most industries to return to work (where necessary) as of 1 June 2020. Previously, only certain professional and essential services were permitted to return to work within the curfew hours that were set between 05h00 and 20h00. However, level 3 lockdown Regulations have removed the curfew hours in respect of work and movement completely.
People residing in schemes are not restricted by previous level 4 curfew hours and may now leave the scheme at any time to purchase goods and obtain services.
Working from home
However, people who want to make use of the professional services and/or additional returning industries offered by those who are working from home, must be let into the complex/community scheme area, in order to access these services. Management of community schemes may need to adjust their security protocols and/or even their rules, to cater for this, as, if they deny entrance to a person seeking to obtain such services, they might be violating the rights of parties to exercise their trade/profession and to earn a living.
It is not clear, however, whether this would apply to the situation where a person is working from home in violation of the scheme’s rules. Under levels 4 and 5, all persons who were not permitted or essential services were forced to work from home and were not allowed to return to their normal places of work, and this would have allowed them to work from home in violation of the town planning rules and community scheme rules that would otherwise have prohibited them from doing so. The same does not apply under level 3, however, as they would now be permitted to return to their normal places of work. In our view, this means that schemes can start enforcing those prohibitions in their rules relating to working from home for most industries. There are a few exceptions, however, and that would be those industries that are still not permitted to return to ‘normal’ work under level 3, such as hairdresser and other beauty practitioners. In our view, such persons must still be permitted to work from home, even if this violates the scheme’s rules, because they have a defence in law as to why they are allowed to break the rules, as they are literally unable to earn a living otherwise and might literally starve. Body Corporates facing this problem might want to put a special set of rules or protocols in place to deal with this bizarre situation. The greatest irony is that, in the past, the most controversial court cases relating to community schemes restricting members working from home have been about hairdressers, which are now one of the limited exceptions who continue to be allowed to break the very rules that previously the court upheld against them.
The new level 3 lockdown restrictions state that South Africans are now permitted to leave their homes for exercise such as to walk, run or cycle between 06h00 to 18h00 and within a 5km radius of your residence. However, everyone is still prohibited from participating in organised fitness activities or to making use of shared facilities such as gyms, tennis courts and swimming pools located within the schemes. For example, exercising together with neighbouring owners and/or tenants is prohibited. However, the scheme could create a roster in terms of which it allocates time slots to owners/tenants to make use of the common property recreational and exercise facilities, such that they are enabled to exercise alone without company.
Visitors and Recreational Travel
Furthermore, owners and tenants residing in the scheme should not have any visitors and/or embark on any recreational travel. For example, visiting neighbouring owners and/or tenants within the community scheme is still prohibited.
Working staff in the community scheme
As mentioned above, level 3 lockdown Regulations have provided for most industries other than non-essential workers to return to work, allowing them to now (without a permit) commute from their homes to their workplace in order to continue working. However, there are certain specific economic exclusions that are not permitted to return which are set out in table 2 of the regulations such as bars, beauty parlours and hairdressers.
It must be emphasised that all COVID-19 health and safety protocols must be followed at all times, including observance of guidelines for social distancing, sanitation and hygiene (such as sanitizers at entrances of community schemes), and use of appropriate personal protective equipment, like cloth face masks or homemade item that cover the nose and mouth when in a public place. In addition, the Regulations require all returning services and industries to have a workplace plan in order to ensure phased services and safety measures are followed.
Cleaners and Domestic workers
All cleaners would be able to perform the necessary cleaning services within community schemes. In addition, domestic workers who perform cleaning services and do not reside within the community schemes will be able to commute from home to work each day in order to perform their cleaning services for each individual owner or tenant. Domestic workers may return to work, provided they adhere to safety protocols and precautions. However, the ministers and the Regulations do not elaborate on what these specific protocols are.
On analysis of the Regulations, gardeners would be able to work within the community schemes during level 3. Their services do not fall within the specific economic exclusions.
Other ground staff for maintenance of common property
Other ground staff members which are employed for maintenance within the community schemes may perform all services, and not only waste and refuse removal services and essential maintenance services, during lockdown level 3. Accordingly, these workers are allowed to commute from home to work but employers must ensure strict health and safety guidelines are complied with.
The Regulations have permitted the return of the commercial construction industries with more than 500 employees. However, the obligation falls upon the Employers to ensure strict additional health protocols such as arrangement of transport for employees to the site, and daily screening and testing of employees as determined by from time to time from by the department of Health.
In this regard, community schemes will be able to continue and/or commence construction of maintenance and/or renovations on the common property and persons building their homes in home owner association areas would be able to continue with the construction of their homes.
Caretakers who oversee ground staff would be able to return and perform their duties and/or obligations in respect of overseeing the maintenance on the common property.
Private security companies and personnel are expressly listed under essential services in the Regulations and these personnel are permitted to work during all levels of lockdown. Security personnel are accordingly able to commute from home to work each day in order to perform their service without a permit. The community scheme must ensure that these staff members who are exposed are provided with necessary protective gear such as masks, gloves and sanitizers.
To ensure that people with disabilities and their families continue to receive services during the lockdown, residential facilities, including care centre and community-based facilities, will remain operational, as they form part of essential services. Care services which fall within the category of essential services are permitted. However, such persons would no longer be required to obtain a permit.
Plumbing, Gas and Electricity Services
Maintenance service(s) are permitted not only for emergencies e.g. burst geysers & pipes, leaks, electrical supply problems but now for all non-urgent circumstances too. This includes renovations and/or completion of construction projects to common property or homes within the scheme.
Deliveries to and within the Sectional Title Schemes
The Regulations have further permitted services other than non-essential services to reopen and trade (including restaurants and fast food outlets). They will be allowed to operate but only for deliveries or take-aways and without curfew hours restrictions.
In this regard, owners and tenants would be able to receive deliveries of any goods supplied, and not only those that are deemed as essential services, such as medicine and food supplies.
It is advisable that deliveries are made at the gate of the community scheme. Moreover, reasonable discretion must be applied by the owners or tenant living in the scheme, as well as the security and management, in this regard and the limitation of the spreading of COVID-19 must be the paramount concern, as well as the strict observance of social distancing.
De Beer and Others v Minister of Cooperative Governance and Traditional Affairs
In the case of De Beer and Others v Minister of Cooperative Governance and Traditional Affairs (21542/2020)  ZAGPPHC 184 (2 June 2020) the high court has ruled that government’s lockdown regulations are not legal but they will remain in place for 14 days from the date of the judgment to give the government time to put new (legal) restrictions in place. We will furnish an update on the New regulations when same are released.
Understanding the Disaster Management Act and its amended Regulations thereto is a difficult and dauting task, and interpreting it is even more complex in relation to a community scheme. Infringement of the Regulations could lead to a fine or imprisonment and, accordingly, should be avoided at all costs. Should you find yourself uncertain of any provision that relates to your conduct within your community scheme during this time of lockdown, it is important that you contact us to be guided by correct advice to avoid criminal sanction.
DISCLAIMER: The above notice is based on the President’s statement on Monday 24 May 2020 and the amendment to the Disaster Management Regulations (as amended) dated 28 May 2020 to their application to living in a community scheme during this lockdown period.