Criminal sanctions in European condominium legislation
Several other European condominium statutes provide that a chronic offender may be prosecmed for certain crimes or misdemeanours, with public insult being the most prominent. The Spanish Criminal Code contains the longest list of punishable offences including threats of physical violence, coercion, public slander, and indecent exposure to underage or mentally handicapped persons.22 Depending on the gravity of the offender’s behaviour, an offender’s activities, under the Italian Criminal Code, could qualify as crimes of indecent public behaviour, insult, libel, domestic violence, or stalking.23 Besides a suit based on nuisance, a civil claim based on insult to personality may also be filed in appropriate circumstances.24
South African case law
The first attempt to resort to a more radical sanction was made in a case heard in the Cape Provincial Division of South Africa. Body Corporate, Shaftesbury’
Sectional Title Scheme v Rippert’s Estate and Others.-5 Here the applicant’s (the corporation’s) founding pages revealed a chronological and meticulous record of contraventions of the bylaws of the scheme by the occupants of a unit from November 1998 to January 2002. The contraventions included ding dealing and sex work by ‘escorts’ occupying the apartment.26 The corporation sought a final interdict against the respondents (unit owner and occupiers), and in the event of non-compliance, an order for temporary ejectment (eviction) until compliance with the interdict.27 In the alternative, the corporation sought a prohibitory interdict, and in the event of non-compliance, leave to apply for an order holding the respondents in contempt of court and authorising warrants for their arrest.28
The South African court emphasised the social need for owners corporations to enforce compliance with bylaws, even at the price of owners and occupiers being deprived of their right to reside in the condominium in circumstances where they constantly and deliberately contravene rules. In this regard, the court then referred to the Spanish Statute on Horizontal Property, which allows a court under certain narrowly defined circumstances to deprive a rulebreaker of their right to reside in a unit for up to three years depending on the seriousness of the contravention. However, the court concluded that no South African legislative provision authorised an eviction order in the present circumstances, more so because the corporation had not provided a legal basis for an eviction order in the scheme’s bylaws.29
Nevertheless, the court granted the alternative remedy that was sought; namely a prohibitory injunction compelling the respondents to abide by the conduct rules, and in the event of non-compliance, leave to apply for an order of contempt of court and authorising warrants of arrest and imprisonment for court-determined periods.30 However, the interdependence of sectional owners living together in an ownership community renders a prohibitive interdict inadequate, and indeed inappropriate. A successful application for an injunction could cause distrust amongst owners and have a permanent impact on the harmony of the community. In instances where the injunction must be sought in the High Court, the expense and protracted nature of the judicial process militate against its efficiency.31
Since October 7,2016, it would have been cheaper and swifter for the corporation or any owner materially affected by the nuisance to obtain an order from a regional ombud consistent with the Community Schemes Ombud Service Act32 to stop the nuisance. However, frequent visits to the Ombud Service will be an inappropriate way to maintain peace and harmony in a sectional title scheme in cases of persistent grave misconduct and contraventions of bylaws, because neighbours constantly litigating against each other is also not conducive to social harmony (on litigiousness in condominiums, see Lippert, this volume).