”Reckless”to advise residents to ignore lockdown rules: CSOS says no to use of common areas

Note: This article has been updated to reflect the latest CSOS directives

The advice given by Durban Attorney Dave McNaught that that residents can’t be prevented from walking and jogging in estates during lockdown is “reckless and wrong”, says Pretoria Advocate, Hermias van Zyl.

McNaught made the comments in an EWN interview, where he described the directives prohibiting people living in estates from using estate streets for exercise as “unlawful, and anyone arrested for using the common property in their complexes could claim for damages.”  Although published three weeks ago, it is still being referred to as a justification for residents to flaunt lockdown regulations.

Van Zyl vehemently disagrees with McNaught’s views in the article.  “It is obvious that our law is divided in three authorities:  one that makes the law (Executive, Parliament and Cabinet), Police and related agencies that enforce the law and the Courts that interpret and make judgments on law. Everybody falls under those three authorities, including estates and complexes,” says van Zyl.

The police have issued a clear warning to people who live in complexes and estates that if they do not adhere to the national lockdown regulations, officers would be allowed in to make arrests – and they are entitled to in law, he points out.

“There is a general rule for all law enforcement authorities that allows them access to any facility in the course of their duties.  So if the Disaster Management Act envisages that you aren’t allowed to go out of your house, and you don’t comply, then the police most certainly will be enabled to enter the estate to enforce the law and arrest you.”

In fact, the Act goes so far as to say that they can even remove you to go into an isolation facility, according to van Zyl.

“Furthermore, in terms of the Act, you aren’t allowed to claim damages for any steps taken by the enforcement agencies during the State of Disaster,” he adds, making McNaught’s advice doubly incorrect.

Van Zyl says although he has not researched the topic in extensive detail, the advice encouraging people to ignore the police acting in terms of the Disaster Management Act “is nothing short of reckless.”

CSOS says use of common areas not allowed

In a directive to Community Schemes on 21 April, the Community Schemes Ombud Service (CSOS) confirmed:  “Owners and occcupiers (including tenants) are not permitted to walk around or perform any sort of activity on the common property, unless classified a essential by the scheme executives [e.g. laundry facilities] irrespective of each and every unit owner’s share in the common property in relation to the participation quota.

An owner or occupier may use his/her exclusive use area.  Owners are advised to peruse the title deed of the unit or the rules of the community scheme to ascertain whether there is an exclusive use area allocated to them.

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