Homeowners’ Associations (HOAs) are legal entities responsible for managing and regulating housing development schemes. They oversee maintenance of communal infrastructures such as roads, security systems, and other shared amenities. An HOA can legally implement access restrictions as part of its security procedures, but sometimes the extent of these procedures is questioned.
HOA’s authority to regulate access in a scheme
HOAs can be established through two legal structures: A non-profit company or a common law association. An HOA set up as a non-profit company operates under a memorandum of incorporation (MOI) and is governed by the Companies Act, while a common law association is established under common law and operates according to its constitution, guided by the common law.
The Management of the HOA is vested in an elected committee that may exercise all powers of the association and enforce rules to ensure that the objectives are set out in either the MOI or the constitution. The HOA may regulate visitor and worker access, but these rules must be applied fairly and consistently.
Immigration and employment requirements for foreign domestic workers
The employment of foreign nationals in South Africa is governed by the Immigration Act 13 of 2002 (as amended). Together with its supporting immigration regulations, the Act sets out the legal framework for employing foreigners in the country. Importantly, it expressly prohibits the employment of any foreign national who does not hold a valid work permit.
Section 38 of the Immigration Act imposes a duty on employers to make a good-faith effort to verify that prospective employees are legally entitled to work in South Africa. Section 49(3) of the Act stipulates that it is an offence, punishable by a fine or imprisonment, for an employer who knowingly employs a foreign national in contravention of the Act.
To what extent can HOAs regulate the access of foreigners?
It is important to clarify that HOAs cannot discriminate against foreign workers based on their nationality. Requiring valid work permits is not inherently discriminatory, as it is a legal requirement for foreign nationals to work in South Africa.
The homeowner or contractor employing the foreign domestic worker is responsible for ensuring that they have the necessary work permits and comply with all the relevant labour laws. Restrictions imposed by the HOA must be reasonable and proportionate. This means that the HOA should have a legitimate security reason for requiring work permits and should not create undue obstacles for residents employing foreign domestic workers.
HOAs can use various methods of access control, such as requiring pre-clearance codes, scanning identity documents, and registering domestic workers, including having a valid work permit. The HOA is an entity that derives its authority from its own prescribed rules, and the requirement of a work permit is enforceable through refusal or revocation of access privileges, and not by criminal sanction.
While a Homeowners’ Association may impose access restrictions, these measures must remain lawful, reasonable, and non-discriminatory. Striking the right balance between community security and the rights of residents and their employees is essential to ensure fairness and compliance with the law. The onus to ensure the valid employment of foreign individuals rests on the employer by confirming work permits are in place before the employment commences. This will protect the employer and the foreigner from facing legal consequences in the future.
Sources
- Immigration Act 13 of 2002
- Graham Paddocks, Homeowners’ Survival Manual
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.