Lessons from New South Wales, Queensland, and British Columbia to assist South Africa in adequately regulating the keeping of assistance animals by disabled persons in sectional title schemes

• Author: van der Merwe, C.G.
• DOI: https://doi.org/10.47348/SLR/2022/i3a4
• Published date: 27 October 2022
• Date: 27 October 2022
• Citation: (2022) 33 Stell LR 419
• Pages: 419-437

419

https://doi.org /10.47348/ SLR/2 022/i3 a4

LESSONS FROM NEW SOUTH WALES,

QUEENSLAND, AND BRITISH COLUMBIA

TO ASSIST SOUTH AFRICA IN ADEQUATELY

REGULATING THE KEEPING OF ASSISTANCE

ANIMALS BY DISABLED PERSONS IN

SECTIONAL TITLE SCHEMES

CG van der Merwe

BA LLB (UOFS) BA (Hons) and BCL (Oxon) LLD (UNISA)

Research Fellow, Department of Private Law, Stellenbosch University; Emeritus

Professor of Civil Law, University of Aberdeen

Abstract

South African legislation contains only one subrule in the Sectional Titles

Schemes Management Regulations about the keeping of assistance animals

in sectional title schemes. This subrule provides that an owner or occupier

suffering from a disability who reasonably requires a guide, hearing, or

assistance dog must be considered to have the trustees’ consent to keep that

animal in a section and to accompany it on the common property. I submit

that this subrule falls hopelessly short of regulating this matter adequately

and that lessons in this regard can be learned from the comparable Australian

jurisdictions of New South Wales and Queensland, and the Canadian

jurisdiction of British Columbia.

First, this subrule makes no reference to anti-discrimination legislation or

legislation dealing with the keeping of dogs which is found in the comparable

provisions in the selected jurisdictions. Second, no clear distinction is drawn

between service dogs and assistance dogs. It appears that assistance dogs are

equated with service dogs which are trained to cater for a specic disability in a

disabled person while those suffering from illnesses like depression could also

benet from the mere presence of a dog without any specic training. Third, the

rule applies only to assistance dogs while the United States, for example, also

provides for miniature horses and Capuchin monkeys to assist persons with

disabilities. Fourth, save for guide and hearing dogs, inadequate provision

is made for the training of other types of assistance animals. In some cases,

disabled persons are allowed to train their own assistance animals without the

animal and the disabled person having to comply with strict competency tests,

for example, the “public access test” required in Queensland. Finally, there

is no agreement regarding what type of disability would qualify for assistance

by an assistance animal or what evidence a disabled owner or occupier must

provide as proof that he or she reasonably requires an assistance animal.

Keyword s: Assistance animals; perso n with disability; sect ional titles

schemes; Sectional Titles Sche mes Management Regulations

(2022) 33 Stell LR 419

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https://doi.org /10.47348/ SLR/2 022/i3 a4

1 Introduction

Neither Schedule 2 to the rst-generation Sectional Titles Act 66 of 1971,1

nor Annexure 9 to the second-generation Sectional Titles Regulations of

19882 on the keeping of animals, contained any rules on the keeping of guide,

hearing, or assistance animals in sectional title schemes. The rst reference

to assistance animals is found in conduct subrule 1(2) to Annexure 2 of the

third-generation Sectional Titles Schemes Management Regulations of 2016

(“STSM Regulations”)3 which states:

“An owner or occupier suffering from a disability and who reasonably requires a guide, hearing or

assistance dog must be considered to have the trustees’ consent to keep that animal in a section and

accompany it on the common property.”

The relevant conduct rule provides for an exception where an owner or

occupier suffers from a disability and therefore reasonably requires a guide,

hearing, or assistance dog. In such a case, the trustees’ consent which is

required for the keeping of an animal, reptile, or bird in the section,4 is deemed

to have been granted for the owner or occupier to keep the dog in the section

and to accompany him or her on the common property. The rule applies not

only in the case where the owner or occupier is blind or suffers from a hearing

disability, but also from a specic disability for which an assistance dog is

reasonably required.

The aim of this contribution is to analyse this subrule critically in the light

of provisions in comparable foreign legislation and the model bylaws of the

Australian states of New South Wales and Queensland, and the Canadian

province of British Columbia. These jurisdictions, similar to South Africa’s

sectional title legislation, have based their legislation on the New South Wales

Conveyancing (Strata Titles) Act 17 of 1961. Occasional reference will also be

made to relevant United States’ legislative provisions on assistance animals.

Aspects that will be addressed in this contribution are:

(i) The more detailed regulation of guide, hearing, and assistance dogs

(animals) in the selected comparable jurisdictions.

(ii) What is meant by the term “assistance dog”?

(iii) Should only guide, hearing, and assistance dogs qualify for deemed

consent?

(iv) What training must a dog and its handler undergo to be classied as a

guide, hearing, or assistance dog or handler?

(v) What must a person prove to establish that he or she suffers from a

disability which reasonably requires the use of a guide, hearing, or

assistance dog?

1 Rule 1(c) in Sch 2 of the Sectional Title s Act 66 of 1971 provided that an own er shall not keep any a nimal

in his or her sec tion or the common pro perty afte r receiving notice to t hat effect from th e trustees

2 GN R 664 in GG 11245 of 08-04-1988, as am ended Rule 1 in A nnexure 9 cont ains only a br ief rule on the

keeping of ani mals, reptiles, a nd birds without an y reference to assist ance animals

3 Sectional Title s Schemes Manage ment Regulation s GN R 1231 in GG 4 0335 of 07-10-2016 (“STSM

Regulations”)

4 Rule 1(1) in Annexure 2

420 STELL LR 2022 3

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