By Marina Constas, Director BBM Law

Over the last two months, our offices have been inundated with enquiries from Community Scheme representatives about what is and isn’t permissible on common property, about what responsibility the Trustees or Directors have in enforcing the Disaster Management Act Regulations and if they can be held personally liable for failure to enforce.

If you live in a scheme, it is always good to know that Trustees and Directors have a fiduciary responsibility to act with care, skill and diligence and should they breach that duty, they can be held personally responsible. Perhaps it is for this reason that overnight, many of the “Scheme Executives” as they are now known have become somewhat draconian in their interpretation of the rules.

Take for example, a set of Trustees in a building on the West Rand who tasked their Estate Manager to collect motor vehicle keys from occupants and owners. If you wanted to leave the scheme, the Estate manager would only hand you back your keys if you provided a recorded voice note as to where you were off to. We would have loved to jump in to attend the urgent court on behalf of owners with this complete abuse of power.

It is critical that professional advice is obtained to provide a balance and guidance as to where the line is to be drawn. The question which could be posed is “What minimum actions need to be taken for Trustees and Directors to be covered ? ” There have been cases where Scheme Executives have simply called in the police on rebellious occupants and owners, delegating their responsibilities to some extent. And it’s not only those in power making the calls!

Trust me – there are increasing call-ins to the police services by owners, aka snitches, who are adamant that the Disaster Management regulations must be adhered to. All districts in Gauteng are covered by the following regulations at level 4:

Offences and consequences

There are certain offences where you may pay an admission of guilt fine. Now that sounds all very well and good. Almost like an easy way out – pay (avoid nasty bail applications and unsavoury overnight stays in police station prison cells) and leave.  Not so fast.

Paying an admission of guilt fine will lead to the taking of your fingerprints and an automatic criminal record which remains for a 10-year period. So when you pay the R500 admission of guilt fine for exercising outside the 6am-9am specified time period, you may be mortified to find out that when you apply for a visa in 2022 to be able to travel to that dream destination, you will not be able to do so with a criminal record. Getting a new job may also prove to be a problem. Bear in mind that if you commit the offence a second and third time, there is no admission of guilt fine available to you. You would have to go through the full court process.

As a matter of interest, amongst others, the amounts of the admission of guilt fines are as follows;

-Failure to confine oneself to place of residence for reasons other than those provided for in the regulations: R1000

-Being outside one’s residence between the hours 20H00 and 05H00 without a permit to perform essential work or permitted services or attending to a security or medical emergency :R1000

-Illegal gatherings: R5000

Having one’s wits about you during these unprecedented times can be challenging. It’s all about understanding the implications of one’s actions and deciding if the consequence is worth it.

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