By Cheralco Worship

Introduction  

Over the last few years, there has been a steady increase in South Africans showing an interest in purchasing or living in a secure residential complex or estate. The main attraction is the sense of security that comes with entering your complex or estate and having security guards at the entrance or doing visible patrols of the enclosed residential area. However, although having the peace of mind of knowing that there is 24-hour security at your place of residence can be alluring, it begs the question of whether your property is genuinely safe and if something does happen, who is responsible? 

In terms of the South African law Constitution, we all enjoy a fundamental right to privacy, dignity and personal, psychological and physical integrity. These rights, however, are infringed upon when one is assaulted or has their home broken into. This may be the reason why so many South Africans may be lured by the prospect of security offered by a complex or an estate. But, although protection is provided, is it guaranteed, and if your home were to be broken into, who do you hold accountable.  

Many of these estates or complexes have a Home Owners’ Association (“HOA”) which is usually a group of homeowners from the estate or complex that has been assigned the duty of running the estate or complex. It is, however, essential for those purchasing property in new developments precisely who is responsible for the security of that development, if it is the HOA or the developer, once the first of the new homeowners move in.  

Determining at which point the HOA takes over this responsibility from the developer is crucial as it assists in knowing against whom a potential claim for damages can be lodged if your aforementioned rights are infringed upon. Whether such a claim will be successful or not has been addressed by the court in Van der Bijl, and Another vs Featherbrooke Home Owners’ Association and Another 1 , in which the plaintiff claimed damages from the HOA and the security company and alleged that they were wrongful in terms of their duty to care and their failure to ensure the safety of the plaintiff amounted to negligence.  

The court had to determine whether a legal duty to prevent the damage suffered by the plaintiff was imposed on the defendant by the law and whether this damage was reasonably foreseeable, i.e. whether wrongfulness and negligence could be determined. The court could not find that such a duty rested upon the HOA but that it did on the security company that it had employed, and thus the HOA could also not have been negligent in its actions. The plaintiffs, therefore, could claim against the security company and even the persons that perpetrated the damage but not the HOA.  

Conclusion  

If you own property or intend to purchase property in a security complex or estate, it is of utmost importance that you know the rules of the estate, the security measures that have been put in place by the security company and most importantly, if the HOA is attending to all the affairs of the estate.  

Contact an attorney at SchoemanLaw for your legal needs by visiting our website at www.schoemanlaw.co.za

Cheralco Worship | SchoemanLaw Inc.Candidate Attorneywww.schoemanlaw.co.za