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Monday May 20, 2013

Retirement village developer fights human rights ruling

The Human Rights Commission has found that a company running a Gauteng retirement village contravened the law by excluding villagers in decision-making. But the company says the commission is not qualified to adjudicate in the dispute.

Residents of a retirement village in Modderfontein, Gauteng, are being asked to vote for a constitution that some of the villagers allege the Human Rights Commission recently found to be in contravention of a law governing these villages.

In a finding on appeal, the commission found that the developer of Thornhill Manor Retirement Village, the Rand Aid Welfare Development Trust and associated Rand Aid Association, had set up a management association that contravened the regulations under the Housing Development Schemes for Retired Persons Act.

The Act states that an association must be set up for each retirement village and the members of that association must include the developer, the purchaser, and each person to whom a housing interest (a unit or a life right) is sold.

Rand Aid set up a management committee that did not include each person to whom a housing interest was sold. Instead, it set up a village committee to consult to the management committee and got those who bought into the scheme to sign a proxy giving Rand Aid the right to make decisions within the management committee on the residents' behalf.

In 2010, Rand Aid applied to the Department of Trade and Industry for an exemption from the provisions of the Housing Development Schemes for Retired Persons Act regulations, but it was denied such an exemption.

Some residents of the village challenged Rand Aid and asked for greater transparency about the scheme's finances - in particular how the levies were determined.

When the residents were unsuccessful, they turned to the Human Rights Commission.

A complaint was lodged at the commission's Gauteng office in the name of Piet Jacobs and others in May 2010. The commission heard from both sides and attempted to resolve the issue.

In April last year, the Human Rights Commission found in favour of the residents and instructed Rand Aid to:

Allow all those who had purchased housing interests in the village to actively participate in the management association;

Ensure that all levies paid by the residents were dealt with in accordance with the regulations under the Housing Development Schemes for Retired Persons Act; and

Give all residents access to financial statements relevant to the village.

The commission declared null and void the voting process in which the residents had participated to adopt the constitution of the management committee and village committee.

Parties who do not agree with a finding by a provincial manager of the Human Rights Commission can appeal to the chairperson or chief operating officer of the commission.

Rand Aid appealed the finding against it, and late last month, the commission issued a finding on appeal in which it again instructed Rand Aid to comply with the Housing Development Schemes for Retired Persons Act and declared the previous vote on the adoption of the constitutions null and void.

While finding most of the commission's original finding was correct, the commission upheld one of Rand Aid's grounds of appeal: that its actions did not constitute an administrative action in terms of the Promotion of Administrative Justice Act.

Rand Aid has responded by sending villagers a letter stating that the one aspect of its appeal that was upheld means the Human Rights Commission has no legal standing to adjudicate the dispute with the residents, and it had wrongly instructed Rand Aid to comply with the law.

Rand Aid confirmed to Personal Finance through its lawyer, Thabile Fuhrmann of Cliffe Dekker Hofmeyr, that it will be exercising its right to a judicial review of the appeal, but the Human Rights Commission's provincial manager for the Gauteng province, Chantal Kisoon, says the commission has not been notified of Rand Aid's intentions.

Kisoon says the commission will be engaging with Rand Aid's legal representatives with a view to ensuring compliance with the law.

The commission also confirmed it had received a submission from a village resident saying she was happy with the arrangements set up by Rand Aid.

Rand Aid has called villagers to a special general meeting on Wednesday May 22 to vote on the constitution of the village committee and the management committee as it is currently operating.

Kisoon says the commission has received a number of complaints from pensioners generally about conditions in facilities for the elderly. These relate to the subsidisation of facilities and social grants, which are alleged to be disproportionate to current inflation rates. The commission is investigating these complaints at a national level, she says.

Laura du Preez
Personal Finance

    
 

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