Trustees of Wellington Mews Body Corporate v Patrick Schreiber and Elizabeth Eastly; Patrick Schreiber and Elizabeth Eastly v Trustees of Wellington Mews Body Corporate

The dispute arose in a sectional title scheme administered by the Trustees of Wellington Mews Body Corporate (also referred to in the judgment as Fairholme Court Body Corporate). The first respondent/applicant in the joined matter, Patrick Schreiber, purchased unit 40 in July 2022 and he and his wife, Elizabeth Eastly, took occupation in August 2022. The scheme’s conduct rules, approved by CSOS on 12 August 2022, included Conduct Rule 11 imposing an absolute 'no pets' rule. Before or shortly after occupation, Schreiber applied on behalf of Eastly for permission to keep three therapy cats in the unit. It was common cause that Eastly suffers from Bipolar Affective Disorder, Generalised Anxiety Disorder, and Obsessive-Compulsive Disorder. Reports from a clinical psychologist, a psychiatrist, and Caring Friends Therapy Animals supported that she required the emotional support of the three cats. The trustees referred the matter to a special general meeting held on 25 May 2023, where owners voted by about 79.38% against allowing the deviation from the no-pets rule. The body corporate then applied under s 39(2)(c) of the CSOS Act for an order requiring removal of the cats. Schreiber and Eastly brought a counter-application seeking dismissal of the removal application, a declaration that the no-pets rule was unreasonable and discriminatory, an order requiring amendment of the rule, and a declaration that the SGM resolution was void.

• Whether the three cats were being kept in the scheme contrary to valid and enforceable scheme governance documentation so as to justify a removal order under s 39(2)(c) of the CSOS Act.
• Whether the dispute fell to be determined under Prescribed Conduct Rule 1(1), requiring trustees’ written consent for pets, or under PCR 1(2), which deems consent for an owner or occupier with a disability who reasonably requires an assistance animal.
• Whether Conduct Rule 11, imposing an absolute no-pets rule, was unreasonable and invalid or unenforceable because it unfairly discriminated against a disabled occupier and failed to allow for exceptions.
• Whether the trustees/body corporate acted lawfully and reasonably in referring the matter to a special general meeting and relying on the owners’ vote.
• Whether the SGM resolution refusing permission was void because it unfairly discriminated against the second respondent and unreasonably interfered with her constitutional rights under s 9 of the Constitution.

The body corporate’s application for removal of the cats was refused. The respondents’/counter-applicants’ application was partially granted. Conduct Rule 11, the scheme’s absolute no-pets rule, was declared unreasonable because it unfairly discriminated against the second respondent as a person living with disabilities. The body corporate was ordered to amend, approve and record a new rule accommodating owners/occupiers living with disabilities. The special general meeting resolution of 25 May 2023 refusing permission to keep the cats was declared null and void and of no legal force or effect. No order as to costs was made.

Where an owner or occupier in a sectional title scheme is shown by credible evidence to suffer from a disability and reasonably requires animals for assistance or emotional support, the dispute must be approached under Prescribed Conduct Rule 1(2) rather than PCR 1(1); in such circumstances consent is deemed or automatic and cannot be defeated by trustees or by a majority vote of owners. A scheme conduct rule imposing an absolute no-pets ban is unreasonable and unenforceable to the extent that it unfairly discriminates against disabled persons and fails to accommodate them, because scheme rules must be reasonable, non-discriminatory, and consistent with constitutional rights, especially the right to equality in s 9 of the Constitution.

The adjudicator made broader observations that blanket prohibitions on pets in community schemes are generally unreasonable, while rules restricting type, breed, or features of animals may be reasonable if objectively justified. The adjudicator also discussed academic commentary and case law suggesting that each pet-related dispute must be decided on its own merits, balancing the interests of pet owners and other residents, and that once an animal is permitted its behaviour must not create nuisance or unreasonable interference. The judgment additionally noted that there is no direct South African authority clearly specifying the precise evidence required to prove that a disabled person reasonably requires an assistance animal.

The decision is significant in South African community schemes jurisprudence because it applies constitutional equality principles to the interpretation and enforcement of sectional title conduct rules. It indicates that absolute no-pets rules may be unreasonable and unenforceable where they fail to accommodate disabled occupiers who require assistance or emotional support animals. It also stresses that majority voting within a body corporate cannot override constitutional rights, and that scheme rules and trustee decisions must be assessed for reasonableness, fairness, and non-discrimination under the STSMA and the Constitution.