Blind man’s washing machine gripe doesn’t hold water - ruling
Joburg man has lost a long battle with his body corporate, but he's not about to give up
For the blind Melusi Ncala, a two-and-a-half-year legal fight to keep his washing machine outside is not just about his laundry.
It was about his blindness being accommodated – about “equality” and his “dignity”.
But the Community Schemes Ombudsman has ruled differently.
Ncala has just lost his two-and-a-half-year legal battle to keep his washing machine in a courtyard at his complex Park Avenue, in Allens Nek, Roodepoort.
The adjudicator at the ombudsman, Dombolo Masilela, found he had broken the rules of his complex, which require trustee permission to alter an outside public area.
Masilela has given him until this Saturday to remove his washing machine and place it inside.
Ncala was defiant on Tuesday: “I have not moved my washing machine. I still need to do my laundry.”
Masilela ruled that if Ncala does not move his washing machine from the outdoor courtyard, the Park Avenue body corporate may remove the machine and the plumbing and charge him for the costs involved. Ncala responded: “This is not the first time I have been discriminated against or come across people who do not understand disabilities or do not have appreciation for the rights of all persons. So come what may, I still need to do my laundry.”
Ncala was the first in his family to buy property and he moved into the home in early 2016.
He maintains the estate agent told him the small courtyard belonged to him, which is one of the reasons he bought the home.
He said in legal papers he did not receive the body corporate rules in braille or by e-mail and therefore did not know that the small space next to his flat was a public area. He placed a washing machine in the courtyard for safety reasons, he said, because he would not be able to see if there was a water leak and he could slip.
In February, July, September, and twice in October 2016 the body corporate sent him letters ordering him to move the machine and the roof and gate he had added to enclose the space. Eventually, in mid-October 2016, the body corporate removed the gate and the roof, leaving the washing machine exposed to the elements. Ncala complained to the SA Human Rights Commission in March 2017, but the parties could not reach an agreement at the commission. Then the body corporate referred the matter to the Community Schemes Ombudsman, which rules on matters involving members of stokvels and conflicts at complexes.
The matter was discussed in a conciliation process, but no agreement was reached so it was referred for adjudication. This means the ombudsman makes a binding ruling. He released his ruling last week. Masilela found the letters sent to Ncala were sufficient notice that he had broken the rules, despite him saying he did not have a copy of the complex rules. Masilela also described Ncala as “articulate”, of “sound mind” as “appearing to be literate”, and “thorough” in his submissions.
“The onus was on the respondent to familiarise himself with the laws that govern sectional title schemes. Therefore, ignorance of the law is no excuse.”
The ombudsman also found that Ncala’s argument, that he could slip if the machine leaked water, had no basis.
“In his submissions, he installed it on common property because ... should the washing machine have a leak in the house he, may slip and injure himself ... does not hold because there is a bath and shower inside the unit which pose the same threat.”
Ncula argued that the body corporate and property managing agent infringed his rights to dignity and equality.
He also wanted an order directing “the body corporate to take all reasonable steps to accommodate his needs as a disabled person”.
But he lost. Masilela wrote: “The respondent breached the body corporate rules and must comply with the conduct rules.”
However, he is allowed to have his gate reinstalled at the courtyard, since other members of the complex have gates.
The body corporate asked the ombudsman to rule that Ncala pay its legal costs of just more than R15,000. Ncala had asked that the body corporate pay his legal costs and replace his washing machine, which has become damaged and rusted since the roof was removed.
The ombudsman however ruled that each party must pay their own legal costs.
Ncala said he is deciding which parts of the order he wants to appeal against and if he needs to go to the Equality Court or high court to argue against the ruling. “I am still awaiting a follow-up from counsel.”
The body corporate was due to meet on Wednesday evening, after which it would comment on the matter.