Disability rights in community schemes: A landmark ruling stakeholders should know about
31 March 2026 Sarah’s Socials | Post 5
On 12 February 2026, the Supreme Court of Appeal (“SCA”) handed down a judgment that has significant implications for every body corporate and homeowners association in South Africa.
The case is Ncala v Park Avenue Body Corporate and Others, and its message is clear: conduct rules cannot be applied without context when a resident has a disability that requires reasonable accommodation.
What happened?
Mr Ncala is visually impaired and lives in a sectional title unit at Park Avenue Body Corporate. His washing area, a common property space outside his kitchen, was shared with his upstairs neighbour. Because of his visual impairment, Mr Ncala faced real safety risks in that space. Wet floors, theft of his washing machine, and exposure to the elements were daily hazards, not abstract concerns for him.
To protect himself and his belongings, Mr Ncala arranged for the installation of a security gate, a roof covering, and a washing machine in the shared washing area. The body corporate objected to this installation. They removed the gate and roof sheeting and lodged a formal complaint with the Community Schemes Ombud Service (CSOS), saying Mr Ncala had broken the conduct rules by altering the common property without permission.
Mr Ncala fought back. He argued that the rules, as they were being applied to him, violated his Constitutional rights to equality and dignity. He also relied on the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA), which specifically requires that persons with disabilities be reasonably accommodated.
The long road to the SCA
The matter went through the CSOS adjudication process, where the Adjudicator found in favour of the body corporate. The conduct rules were fair, the Adjudicator said, and they applied equally to everyone. Mr Ncala appealed to the High Court, but his appeal was filed 67 days late. The High Court took the position that it did not have the power to overlook that delay and dismissed his case without looking at the merits.
Mr Ncala then took the matter to the SCA, and that is where everything changed.
What the SCA found
Besides the procedural question, the SCA dealt with the issue of whether the body corporate had acted fairly toward Mr Ncala. On this substantive question, the one that matters most to scheme residents and trustees, the findings were decisive.
The SCA confirmed that applying rules "equally to everyone" does not always mean treating everyone the same. That is called formal equality. What the Constitution requires, and what the SCA applied here, is substantive equality: recognising that different people have different needs, and that truly equal treatment sometimes means making adjustments for those differences.
The alterations made to the common property by Mr Ncala were seen as being small alterations. They were confined to the washing area he shared with one upstairs neighbour. That neighbour never objected. The gate and roof sheeting cost the body corporate nothing. The washing machine posed no burden to anyone else. The SCA noted that the Adjudicator had even authorised Mr Ncala to install an awning - which made no sense, since the awning was there specifically to protect the washing machine he was simultaneously ordered to remove.
The SCA was also critical of the Adjudicator’s finding that Mr Ncala faced the same risk of slipping in the washing area as he did in his own bathroom, invalidating his concerns. The SCA found that this finding was unreasonable as the safety concerns in the washing area were genuine, regardless of whether risks existed in other areas of the scheme.
The SCA was also critical of the body corporate's conduct during the process. At a special general meeting where members voted on whether to allow Mr Ncala’s amendments to the common property, the body corporate failed to disclose to the members that he was visually impaired. It is hardly surprising, the SCA said, that the vote went against him. The body corporate also repeatedly failed to provide him with its conduct rules in electronic format or in braille, which would have been a reasonable accommodation for a visually impaired person.
What the SCA ordered
The appeal was upheld. The SCA declared that Mr Ncala is entitled to exclusive use rights over the portion of the common property needed for his gate, roof sheeting, and washing machine.
The body corporate must permit Mr Ncala to restore the installations at his own cost. Mr Ncala is required to pay a contribution to the shared cost of the washing area, the same as any other resident with exclusive access to it would and he must remove the installations when he no longer occupies the unit.
What this means for your scheme
This judgment is binding across South Africa, and its message to trustees and managing agents is straightforward.
Conduct rules are not a shield against Constitutional rights. A rule that treats everyone identically, regardless of disability or other personal circumstances, can still amount to unfair discrimination.
Reasonable accommodation is not optional. If a resident requests an alteration of common property because of a disability, the scheme cannot simply say "while the STSMA states that all rules must be applied equally to everyone," trustees must genuinely consider whether the accommodation is reasonable, meaning it does not cause undue hardship to the scheme or other members.
As can be seen from the above, transparency matters and trustees have a duty to act in good faith. Withholding relevant information from members at a general meeting, as happened here, is not acceptable governance.
Conduct rules should be reviewed. If your scheme's rules do not include a provision allowing for reasonable accommodation of disability-related needs, this judgment is a prompt to address that gap.
This case is a reminder that a body corporate is not just a legal entity, it is a community. And in that community, every resident's dignity and safety count.
If you are interested in learning more about changing your conduct rules, be sure to read our article: “Changing it up, by changing your rules”, where Nicole Nel will walk you through the process.
Please also contact us at info@tvdmconsultants.com or 061 536 3138 if you have any questions on this matter, or need our assistance with your scheme's rules.
About the author
Sarah Sydenham is a community schemes consultants at TVDM Consultants.
Sarah is also an admitted attorney, brings a well-rounded legal background and a passion for community schemes to her role.
Learn more about Sarah Sydenham.
