Community Schemes and the Coronavirus

In his address to the South African people on Sunday, the 15th of March, President Cyril Ramaphosa stressed the fact that the world is facing a medical Disaster far graver than what we have experienced in over a century, and declared a National State of Disaster.

The current set of circumstances around the world have conspired to springboard us all into action. The onslaught, which is the 7th type of coronavirus, has changed the way we think, engage and conduct our daily lives.

Minimising the risk of the spread of the virus is critical in order to avert a complete crisis at national healthcare level. Immediate actions to be taken talk to limiting contact among groups of people. Social and community gatherings are prevalent in South Africa and nowhere more so than in our very own 56 000 Sectional Title Schemes, and 530 000 individual homes within Homeowners’ Associations.

Living in close proximity to each other is not ideal at the moment. Plans need to be put in place quickly by Trustees and Directors to ensure that the measures implemented in terms of the National State of Disaster are complied with. Failure to do so would constitute a breach of fiduciary duty. In larger schemes it is conceivable that one hundred or more people could attend an Annual or Special General meeting (“wishful thinking”, I hear Managing Agents murmur). Under the State of Disaster, large gatherings, specifically with over 100 people (at the time of writing) have been prohibited. In all fairness though, with the rate of the spread of the virus, do we really want to have meetings at all? In addition, with an increasing number of people going into isolation, meetings may become impossible.

Fortunately the Sectional Titles Schemes Management Act 8 of 2011 does make provision for the situation where Special or Annual General meetings can be avoided. Management Rule 17(9) states that the Body Corporate does not have to hold a special general meeting to consider a resolution, if all members waive the right to the meeting and consent to the resolution in writing. Management rule 17(2) states that the Body Corporate is not obliged to hold an Annual General meeting, if, before or within one month of the end of financial year, all members in writing waive the right to the meeting and consent in writing to all the motions.

Attendance at these meetings does not have to be in person. Management Rule 17(10) states that a Body Corporate may make arrangements for attendance at an Annual or Special general meeting by telephone or any other method as long as all members have access, all members can participate and all members are clearly identifiable. In Management rule 11(5), a similar provision is made in respect of Trustees’ meetings.

Residents in Community Schemes shoulder a great deal of responsibility to curb the spread of infection within their walls. There is no doubt that this virus can be thwarted. A robust committee of Trustees or Directors who are proactive and committed to this cause, working within the parameters of the law, together with owners and occupants, can make it happen.

Marina Constas

Director BBM Law

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