19. CONTRAVENTION AND PENALTIES

(ANNEXURE A – SCHEDULE OF PENALTY LEVIES)

1. If the conduct of a resident, their employee/s or their visitor/s constitute/s a nuisance in the opinion of the Trustee Board or contravene/s a provision of the STA, STSMA, the Management Rules or these Conduct Rules, the Trustee Board shall be entitled, without prejudice to the other rights or remedies which the MBC may have in law, or in terms of the STA or the STSMA, any other act, the Management Rules or these Conduct Rules, including to claim compensation for damages, to—

(a) enter the section, exclusive use area and/or the common property to take such action as may be reasonably required to remedy the contravention and hold the Resident of the Section liable for the costs incurred in this regard; and/or

(b) bring a court application for a suitable order; and/or

(c) institute arbitration proceedings; and/or

(d) apply to the applicable Chief Ombud for a suitable order; and/or

(e) institute mediation proceedings or expert intervention; and/or

(f) impose a penalty on the Resident.

2. For contraventions referred to in sub-rule (1) or on receipt of written complaint, the following process shall be followed—

(a) on receipt of the first written complaint, or upon becoming aware of a contravention, the MBC will, through the Trustee Board, firstly endeavour to confirm that the contravention occurred and then try to remedy the situation either verbally in a meeting or on the phone with the resident and/or may issue a notice of contravention and record of their discussion. Copies may be sent to the resident and rental agent. The Trustee Board, owners and residents agree to try to resolve all breaches of the conduct rules in an amicable manner where possible.

(b) on receipt of the second written complaint or upon becoming aware of a recurring contravention, the MBC will through the Trustee Board confirm the contravention occurred, and either or both;

(i) require the resident (and the owner if the property is let to a resident, and any appointed letting agent) to attend a meeting with the Trustee Board within 7 (seven) days of being notified of this requirement, and/or

(ii) forward a written warning to the resident (and the owner if the property is let to a resident, and to any appointed letting agent) requiring them to remedy the situation within a reasonable given period.

(c) should the resident still not remedy the situation, or on receipt of further written complaints, the MBC will, as determined by the Trustee Board if they are satisfied that the contravention occurred—

(i) forward a final warning to the resident (and the owner if the property is let to a resident, and any appointed letting agent) to comply with these conduct rules or STA within a given period of time, and/or

(ii) issue a notice of a penalty which notice shall state the reasons for the imposition of the penalty, or restrictions on use of certain common property, or withdrawal of, or changes to the level of selected services provided by the MBC, or withdrawal of permission to have pets in the Complex, or undertake any work or repairs required, and

(iii) Recover from the resident all costs incurred in relation to the correction of the contravention.

3. Should the resident or owner not resolve the matter to the satisfaction of the Trustee Board, the Trustee Board have the right at any time to declare a dispute and request arbitration in terms of the Act, or to take legal action, including consulting with attorneys, the costs of all of which will be for the owners account.

4. Failure to apply these or any other penalties, in any instance shall at no time infer that the contravention is acceptable, and the MBC may at any time impose these penalties in future.

5. The penalty imposed under sub-rule (1)(c) above, shall become due on the date of the written notice and must be paid within 30 (thirty) days of the date of the written notice. Should the penalty remain unpaid it may be added to the Owner’s levy statement and may be recovered from the Owner of the Section in the same manner as applies to arrear levies, together with interest at the rate applicable to arrear levies.

6. The Trustee Board shall from time to time determine the categories of contraventions and the amounts of the penalties in respect of the various contraventions and in respect of first and successive contraventions, subject to any directions given or restrictions imposed by the members on the Trustee Board at a GM.

7. If the Trustee Board instruct a firm of attorneys or appoint an arbitrator in terms of in connection with or arising out of an infringement of any rule by a resident, the resident shall be liable to reimburse the MBC on demand for all costs incurred in respect thereof.

8. The extent of any penalty shall be at the discretion of the Trustee Board but shall be appropriate and fair, taking into consideration the time and effort required to address the contravention, and shall be no more than the average monthly levy of all units in the Complex, for every written warning given. The nature and duration of any other restrictions etc. will be at the discretion of the Trustee Board.

9. A Resident may within 30 (thirty) days of the date of the written notice in terms of sub-rule (1)(c), submit an objection, with a motivation, against the penalty imposed, to the Trustee Board.

10. Upon receipt of the objection, the Trustee Board may—

(a) withdraw or reduce the penalty; or

(b) schedule a Trustees’ meeting (hearing) for the purpose of considering the objection and invite the Resident to attend the meeting, and/or to be represented at the meeting.

11. At the Trustees’ meeting (hearing) referred to in sub-rule (6)(b) above, the Resident and/or his representative shall have the right to—

(a) present his case;

(b) present any evidence, including the calling of witnesses, to substantiate his case;

(c) cross-examine any person called as witness in support of the charge;

(d) have access to documents produced in evidence; and

(e) produce mitigating factors.

12. The failure of the Resident charged or his representative to attend the Trustees’ meeting referred to in sub-rule (10)(b) shall not render the proceedings at the meeting void. Should the Resident or his representative not attend the Trustees’ meeting without providing a reasonable request for postponement, the Trustee Board may, in their sole discretion, continue with the Trustees’ meeting and consider the objection in the absence of the Resident.

13. Upon the conclusion of the Trustees’ meeting, the Trustee Board shall deliberate the evidence and if so resolved, they may— (a) uphold the penalty; or (b) withdraw or reduce the penalty.

14. Should the Resident not agree with the decision of the Trustee Board in terms of sub-rule (13) the Resident may request, without prejudice of the other rights or remedies which may be available in terms of the Act or these Conduct Rules or in law that the Trustee Board refer the matter to a general meeting of the members for their decision, without prejudice to any other rights or remedies, which the Resident may have in law, or in terms of the Act or the management rules, and/or that the matter be referred for arbitration proceedings.