Written for YourProperty

This week’s Property Poser question relates to a topless sunbather at a townhouse complex’s communal swimming pool.

Our reader recently accompanied her son, aged eight, and his friend, nine, to the pool, only to encounter the scantily clad lady.

She says there are many families with young children in the complex and she feels this is inappropriate behaviour.

The reader wants to know what the law says regarding the woman’s right to tan topless versus her right not to expose her son to it.

Jacques Esterhuyse from KSE Attorneys in Tyger Valley says Section 35(1) of the Sectional Titles Act No 95 of 1986 stipulates that every sectional title scheme is controlled and managed by the body corporate by way of management and conduct rules.

“The act contains standard management and conduct rules that apply to sectional title schemes, unless the developer or body corporate substitute these with amended ones,” he says.

“The standard conduct rules cover more general aspects relating to the conduct of owners and occupiers. Because of its general content, it will not necessarily cater for the specific characteristics of a particular scheme.”

Esterhuyse says harmonious living is ensured if all residents use and enjoy the common property in such a manner as to enable other residents to also use and enjoy these facilities.

“It is important to take into consideration that there are different cultures in our country and that everyone has different norms and taboos. It is therefore suggested, for the sake of clarity, that the developer or the body corporate prepare and register custom-made conduct rules to regulate owners, residents and their guests.”

Esterhuyse says an example of such an amended rule is that owners, residents and their guests must ensure that they are properly dressed when entering common property.

Tony Clarke, managing director of Rawson Properties, suggests the reader should study the conduct rules applicable to her scheme. “If there is a specific rule that relates to the dress code of residents, the trustees should take the necessary steps against the topless sunbather once they have received her complaint.”

This will entail, says Clarke, that she be given a warning not to repeat the offence. “If she ignores it, a penalty may be imposed on her.”

If there are specific swimming pool rules for the reader’s scheme, he suggests that a board containing these be erected next to the pool. “A prohibition on topless sunbathing can then be specifically brought under the attention of the users,” says Clarke.

“If the standard conduct rules apply to the reader’s scheme, or if the amended rules do not specifically refer to dress code, it does not mean that owners and residents may conduct themselves in a manner that may be offensive to others.”

Clarke says Section 44 of the act, which deals with the duties of sectional title owners, places an obligation on owners to use and enjoy the common property in such a manner as not to unreasonably interfere with the use and enjoyment thereof by other owners or persons who are lawfully on the premises.

“This provision can therefore form the basis upon which the trustees may demand from the topless sunbather to stop her actions.”

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