What is a guide, hearing or assistance dog?

24 June 2022 | Nicole Nel

Upon coming into force in 2016, the Sectional Titles Schemes Management Act 8 of 2011 (“the Act”) had not only repealed several provisions of its predecessor, the Sectional Titles Act 95 of 1986 (“the STA”), but also introduced many new and exciting concepts into the world of sectional title in South Africa. One of these new concepts is that of a guide, hearing or assistance dog.

These types of dogs are specifically mentioned in the Prescribed Conduct Rule (“PCR”) 1(2) of the Regulations to the Act. This is with reference to the keeping of animals, reptiles and birds rule within a sectional title scheme.

PCR 1(2) provides that any owner or occupier who is suffering from a disability and who reasonably requires a guide, hearing or assistance dog must be considered to automatically have the trustees’ consent to keep that animal in a section and to accompany it on the common property.

Therefore, according to the Act, this PCR makes a guide, hearing or assistance dog the ultimate and only exception to a “no pets” rule within a sectional title scheme.

However, the Act definitely falls short in terms of providing us with a definition for such dogs. Further, it fails to provide us with the exact circumstances under which such an animal may be used, as “An owner or occupier suffering from a disability and who reasonably requires a guide, hearing or assistance dog”, is too broad of a scope, and it is difficult to define exactly what might be a disability and what might not be. A further issue would be this concept of reasonableness, as what is reasonable for one person is not necessarily reasonable for the next person.

Since the Act draws inspiration from several Australian territories, namely New South Wales, Victoria and Queensland, there are many similarities between South African and Australian sectional title legislation. It is thus from our Australian counterparts that we adopted this concept, and it is in through the interpretation of their legislation that we can find more clarity on the definition and the circumstances surrounding the use of such an animal.

According to the Queensland Guide, Hearing and Assistance Dogs Act of 2009, a guide dog, hearing dog or assistance dog is one that is specifically trained to perform certain physical tasks and behaviours to assist someone with a disability and to reduce that person’s need for support, and to promote independence for that person to participate in the community. According to the act, these dogs aid individuals suffering from any physical disabilities, disabling illnesses like multiple sclerosis, autism, post-traumatic stress disorder, mental illness, and dementia.

This act further stipulates that these dogs must be certified, by completing a series of intensive training courses, and be able to pass a “Public Access Test” to ensure they are safe and effective in a public place, public passenger vehicle, or place of accommodation, and are able to be controlled by their handler/s in all situations.

Unfortunately, South Africa does not have any legislation defining or regulating the training or certification of guide, hearing and assistance dogs. It is therefore becoming increasingly difficult for trustees in sectional title schemes across South Africa to ascertain whether a member genuinely requires the use of this kind of animal, or whether they are trying to take advantage of this exception to the “no pets” rule, and pass a companion dog off as a guide, hearing or assistance dog.

To muddy the waters, despite the Act expressly mentioning a guide, hearing or assistance dog, the Community Schemes Ombud Service (“CSOS”) have recently handed down adjudication orders allowing for members to keep cats as emotional support animals.

This complicates things further by two-fold. Firstly, the CSOS granting permission for emotional support cats to be kept when the Act clearly stipulates dogs. Secondly, due to the fact that, according to Australian legislation on this subject, an emotional support animal and a guide, hearing and assistance dog are not the same thing.

It’s thus clear to see that the path of guide, hearing and assistance dogs is not an easy one to take in a South African context. There is still much uncertainty surrounding this topic that may only be cleared up once the appropriate Guide, Hearing and Assistance Dog legislation is implemented in South Africa. Until such time, these situations within a sectional title scheme will have to be dealt with on a case-by-case basis. 

If your scheme is having an issue with pets or if you have any questions with regard to the above, please contact us at TVDM Consultants on info@tvdmconsultants.com or 061 536 3138.

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