The Code of Conduct and the Violation of Constitutional Rights - Do Two Wrongs make a Right?

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The Pecanwood HOA circulated its amended proposals for the Code of Conduct on Monday, 07 November 2022. Whether the rules will be applied retrospectively or retroactively has not been specified in the document and opens a pandora’s box of implications for Residents and property owners.

Once again, the HOA is drawing Residents into voting on a resolution that would clearly be illegal. By presenting the flawed Code of Conduct and incorporating references to other policies, the PHOA additionally seeks to circumvent voting on all the policies which it has unilaterally implemented without Members’ approval. The fact that the new Rules have been adopted by the Board should be an indication of their mindset in managing the Estate and its affairs.

As with the introduction of the Social Levies in 2014 -2016 when Residents neglected to pay attention to the decisions that were being made, and which resulted in the astronomical levies being charged currently, the revised Code of Conduct will have far reaching consequences for Residents if the vote to approve it is passed. The PHOA have recently involved Residents in voting on three Capex items as a ratification of their decision that all the other items included in the arbitrarily imposed Special Levy are not Capex items.

We have previously reported on the high handed and bullying tactics employed by the Pecanwood Estate Community Association Manager (recorded in court records) when he was employed by Serengeti Golf and Wildlife Estate and later at Blue Valley Estate. These characteristics have been manifested at Pecanwood by the introduction of an illegal facial recognition access system to track Residents, their children and their employees’ movements. Another recent attempt to violate Residents’ Rights was the now revoked Rule that Residents should only purchase domestic staff overalls, at astronomical cost, from the PHOA.

The revised Code of Conduct is an extension of this militaristic management style and it cannot be condoned considering its unlawfulness. Pecanwood Corruption Watch intends lodging a complaint with the Human Rights Commission as regards the violation of Members’ Constitutional Rights in the affected Clauses.

Let us briefly explore the absurdity of some of these amendments and what the law says about them.

There is no contractual arrangement between the HOA and its Members other than a service delivery agreement which in terms of the MOI starts upon registration of property at the Deeds Office. The HOA is not a credit provider, and the Members are not clients. Attempting to force Members into a contractual relationship which does not exist is unlawful.

Slipping in an amendment to the MOI in the Code of Conduct is a clear attempt to mislead Members. The MOI stipulates that Country Heights is responsible for maintaining the internal lakes and not the PHOA, as the new Code of Conduct wants to assert. The internal lakes are the property of Country Heights as it forms part of the golf course.

This amendment should not be allowed as it has far reaching consequences for Members. Members should take care to ensure that there is no conflict between the MOI, the Code of Conduct and any of the other policies arbitrarily implemented by the HOA. The MOI takes precedence over all the policies and the Companies Act 2008 in turn precedes the MOI. The MOI cannot be in violation of the Companies Act 2008.

Lumping anybody who enters a property on the estate under the definition of “Member” is ridiculous as “Member” is clearly defined in the MOI as being the property owner.

Clearly the golf cart paths, recreational and traffic islands cannot be recreational facilities. The golf cart paths form part of the golf course and belongs to Country Heights. We will avoid speculating which recreational activities can take place on the facilities in question.

Classifying anybody who enters a property on the estate under the definition of “Resident” has far reaching consequences for homeowners and tenants and is clearly an attempt to force property owners to accept personal liability for anyone who enters the estate to engage with Residents.

Members should be aware that the entire Clause 5 is a new addition to the Code of Conduct. Its opening statement is misleading as the MOI does not support any arbitrary action by the Board of Directors. Key decisions made by the Board are subject to ratification by Members in a general meeting.

Of notice is Item 5.4 which seeks to bar Residents from accessing the Estate and therefore their properties. We have previously highlighted the Lessing vs Serengeti Golf and Wildlife Estate High Court case wherein the court pronounced on the violation of Mr. Lessing’s Constitutional Right to access his property and Serengeti Golf and Wildlife Estate was ordered to re-instate his electronic access.

The new attempt to introduce a contractual relationship between the PHOA and Members should be considered together with Clause 5.4 as an attempt to circumvent Members’ Constitutional Rights to access their properties under any circumstances. We are aware of at least two court cases where the contractual relationship between an estate agent and an estate, and an IT consultant and an estate led to the revoking of their electronic access cards. * In both cases the courts held that the revocations were lawful considering the contractual relationships between the parties. The Lessing case differed from these cases as it involved property rights. Involving members in ratifying a Constitutional Rights violation is disingenuous and will not stand up in a court of law.

Members should be aware of this attempt to sneak in a Clause that will strip them of their rights to have a say in the formulation of rules to the Code of Conduct. The Board does not have an exclusive right to impose a Code of Conduct on Members without Members approving it. Should Members allow this Clause and other amendments to pass they will eventually lead to an even worse abuse of power than the arbitrary implementation of levies which is in clear violation of the MOI.

The costs relating to penalties are absurd, prejudicial, heavy handed and in violation of common law principles of fairness, reasonableness and lawfulness.

A further absurdity follows at the end of the Clause in a statement which is contradictory in its wording in that it refers to a summarily and arbitrary imposed process to be implemented by the Chairman whilst advising on the other hand that Residents apply the Pecanwood internal dispute resolution procedure to their grievances.

The Vetting and Enrollment Policy approved by the Board is a clear violation of Members’ Constitutional Rights to privacy and their unencumbered access to their property. In addition, inserting a Clause into the Code of Conduct forcing prospective home buyers to renounce these Rights before they can purchase property on the estate is criminal and in breach of several laws and ultimately impacts on members’ ability to sell their properties.

The Homeowners Association has no authority to assume aspects of law enforcement which is the absolute prerogative of the South African Police Services. Including a Clause to force Residents and other Members of the public to undergo criminal record checks and checks relating to any court actions they may be involved in is criminal in the former instance and highly prejudicial in the latter instance. To add insult to injury Residents will have to pay a fee to have the checks performed.

Members should note that we previously pointed out that the installation of the Biometric Facial Recognition System will enable the Board, members of staff and contractors and their staff to have unprecedented access to Members’ personal history via the unlawful installation and its links to government and financial data bases. It remains to be seen how these details will be manipulated and used by the Board and HOA staff to advance the PHOA’s highly questionable objectives.

Forcing domestic workers to carry an Estate identification card with the excuse that it will serve to distinguish them from contractors’ staff is offensive considering the Apartheid Pass Law of 1952 which compelled all Black people to carry a dompas.

The new Biometric system being installed and linked to the cards will contain information that would not be accessible under normal circumstances and can be directly linked to the dompas which contained more extensive information than an ordinary identification document at the time. The information gained in this manner by the Apartheid Government was used to track, intimidate and manipulate Black people. Members should consider how wearing and stopping people to inspect these cards will affect their dignity and Rights and whether Members are comfortable to have persons who take care of their families and property endure this type of behavior.

Another absurd rule is the one controlling where and for how long Members can park their motor vehicles. Many Residents own several motor and other leisure vehicles and resort to parking some of these in their driveways due to space constraints in their garages.

In many instances the area immediately in front of Members’ garages forms part of their registered private property and Members are entitled to do as they please on it. The HOA has no business in restricting the number of motor vehicles owned by Members and where and for how long they should park them on their property.

Because of the erratic load shedding schedule and power outages during the rainy season, Residents opt to park their motor vehicles outside their garages, in their driveways where they can easily access them and drive off it when the power is off.

Another infringement on Members’ private property is the Rule stipulating that “swimming pools are hazardous when not used with due care". Since no explanation as to what “due care” means has been stipulated by the PHOA, its nature remains open to speculation and is indicative of the absurd Rule to have pools deemed hazardous by the PHOA, treated by a contractor appointed by the PHOA and for the account of the Member. We do not want to speculate on how often Members’ swimming pools will be inspected and what procedure would be involved in ascertaining the hazards requiring treatment, but are certain of the fact that anyone attempting to do so without permission will be trespassing on private property.

Of all the absurd rules being introduced the monitoring of dogs’ barking leads the pack (pun intended). Many Residents already own dogs when they purchase property on the estate and will not abandon their beloved pets in the process.

The introduction of a policy to regulate the duration of a dog’s barking borders on animal cruelty. Dogs bark or howl at something that does not belong in their environment and they whine or yelp when in distress. Only extremely highly trained dogs can cut off their barking on command and only when commanded to do so by their trainer or master. Imagine the resources involved in recording for how long an animal barks and if they exceed the timeframes stipulated in the Rules, owners are forced to abandon them. We assume an amendment to the Rule will soon stipulate how owners are expected to get rid of the number of pets that exceed the stipulated limit and those animals whose barking is considered excessive and unacceptable.

Prohibiting the ritual slaughter and butchering of livestock by Members is a violation of Members’ Constitutional Right to freely practice their religious beliefs. The practice of ritual slaughter is closely tied to the cultural identities of many South Africans and prohibiting the practice is akin to ethnic cleansing.

Note that all advertising on the Estate is strictly prohibited, even if you own an umbrella displaying a name or logo and the item is used on your private property, but you may apply to advertise on your golf cart which you will be driving around the Estate.

Whilst stripping members of their Rights, the PHOA displays an ardent desire to include a Right to utilize the Association’s funds and legal resources to engage in private litigation to defend alleged claims of defamation. The inclusion of a Rule disguising this purpose is disingenuous and linking a threat to “suspend certain rights on the estate” is vindictive and criminal. The Association’s MOI authorizes only Directors’ legal costs related to litigation in connection with their appointments. Income from Members’ levies may only be utilized in the manner as set out in the MOI.

Directors, management and staff should rather ensure that their conduct is impeccable and beyond reproach. When individuals occupy prominent public positions, they should be aware that their lives will be under scrutiny and any immoral or criminal acts will be laid bare to the public.

Lastly, and not to be taken as an indication that we have exhausted our objections to the new Code of Conduct, we would like to point out that Members are now allowed to ride horses on the Estate and to keep livestock, farm animals and poultry, although not for commercial purposes.

Once again, the PHOA Board have shown their inability to formulate clear and lawful policy to govern the Estate in an objective manner but rather use the old style militaristic tactics of law and order, where the law is for the few elites and the order is for the marginalised - also called a police state.

A comprehensive complaint detailing all the unlawful practices formulated in the Code of Conduct will be submitted to CSOS and the Human Rights Commission for review.

We urge residents to go through the Code of Conduct with a fine tooth comb and to make their intentions as law abiding citizens clear at the AGM.

*De Beer vs Zimbali Estate Management Association (Pty) Ltd

and Another and Microsure (Pty) Ltd and others vs Net 1 Applied Technologies South Africa Ltd.

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