Law academic Ashwini Singh shares that it is the priority of a sectional title scheme’s trustees to serve their body corporate and not their self-interests. Trustees have a fiduciary duty to act in the best interests of a body corporate, however, there have been instances when trustees regrettably breach the very rules of the scheme that they are supposed to be upholding.
WORDS & PHOTO: ASHWINI SINGH
Rules apply equally to all owners and occupiers in a scheme, and the reality is that no owner nor occupier in a scheme is above the law. Subsection 10(3) of the Sectional Titles Schemes Management Act 8 of 2011 (the “STSM Act”) states that all management and conduct rules of a scheme must apply equally to all unit owners in a scheme.
This is supported by Prescribed Conduct Rule 7(4) of the STSM Regulations, which compels any occupier to further comply with the rules of a scheme. Oftentimes, trustees are owners or occupiers in a scheme who also must comply with the body corporate’s rules. Additionally, any person who is appointed as a trustee is obligated to carry out the further management and enforcement duties specified throughout the STSM Act and its Regulations.
The curious case of C v D
In the unreported Magistrate’s Court case of C v D (case no. 2507/2024), both the Complainant (“C”) and the Respondent (“D”) resided in a sectional title scheme located in Westridge, Durban. The Complainant’s property consisted of a unit in the scheme that included an expansive Exclusive Use Area, with exclusive use rights conferred in terms of the scheme’s management rules.
The Respondent was a trustee of the scheme’s body corporate. As both a trustee and a resident of the scheme, the Respondent was bound by the scheme’s management and conduct rules.
Despite being a trustee, the Respondent and his visitors trespassed into the Complainant’s Exclusive Use Area on multiple occasions, in breach of the scheme’s rules. Consequently, the Complainant applied to the Durban Magistrate’s Court for an Interim Protection Order against the Respondent to restrain him (and his visitors) from entering the Complainant’s property.
In November of 2024, the Complainant was awarded an Interim Protection Order and a Warrant of Arrest against the Respondent, which ordered both the Respondent and his visitors to refrain from entering the Complainant’s Exclusive Use Area.
The Respondent thereafter settled the matter with the Complainant by way of a contract. Among the conditions of the contract, the Respondent had to pay R 30 000 in costs to the Complainant as well as refrain from trespassing in the Complainant’s property.
Reasonable compliance is the best conduct
Evidently, the best course of conduct for anyone in a scheme is to reasonably comply with the rules of the scheme, irrespective of whether they are a trustee, owner or occupier. As highlighted in the abovementioned case of C v D, action can be taken against anyone who fails to abide by a scheme’s rules to the prejudice of others, regardless of said person’s role in the scheme’s governance.
* Ashwini Singh is a law academic, ACFESA Affiliate and PEG Associate.
