A practical guide from a recent high court judgment
If you own property in a sectional title scheme you are automatically a member of the body corporate. Because managing a complex – whether large or small – is an onerous task, trustees are appointed by members (often owners but not necessarily) to represent the whole group. But what happens if owners are not satisfied with the conduct or performance of the trustees?
Removing trustees in a sectional title scheme is a serious step and must be done lawfully and in compliance with the correct procedure. A recent High Court judgment provides important clarity for owners, trustees and managing agents on when a Special General Meeting (SGM) is valid and when it is not. This case is particularly relevant for anyone involved in body corporate governance or disputes through The Community Schemes Ombud Service (CSOS).
Background to the case
The appellants were long-standing owners in the Drakensberg Body Corporate and had been properly elected as trustees at an AGM. During their term, they successfully took legal action against the managing agent to compel the disclosure of financial records and address serious management failures. Shortly thereafter, a group of owners requested that an SGM be called to remove the trustees. The trustees refused to call the SGM, believing the request was defective. A non-owner then instructed the managing agent to convene the SGM despite the trustees’ refusal. The managing agent proceeded to call and host the meeting.
At the meeting, the trustees were removed. The trustees challenged this process at CSOS, but the adjudicator upheld their removal. The trustees then appealed to the High Court.
What the court said
The High Court took a firm stance on process and legality. The court held that ordinary managing agents do not have independent authority to convene SGMs without trustee approval. Furthermore, someone who is not an owner or a properly appointed proxy has no power to vote or instruct managing agents on behalf of the body corporate. If the trustees refuse to call an SGM, the requesting owners are entitled to convene it themselves. The agenda must clearly include the proposed removal of trustees. Surprising trustees with removal resolutions is unlawful. An SGM can be declared invalid if it is not properly convened or not quorate.
CSOS made errors of law by endorsing an unlawful process and failing to apply the Sectional Titles Schemes Management Act 8 of 2011 (STSMA) and management rules correctly. As a result, the court set aside the CSOS adjudication order, reinstated the trustees with immediate effect, and ordered the respondents to pay legal costs.
How trustee removal is supposed to work
Here is a simple step-by-step overview of the lawful process:
Owners (at least 25%) unhappy with trustees
↓
Written request sent to trustees
↓
Do trustees call an SGM?
↓ ↓
Yes No
↓ ↓
SGM held Owners must lawfully convene SGM themselves
↓
Owners arrange venue, notice, agenda, costs
↓
Proper agenda must include trustee removal in matters for discussion, without amendment
↓
Quorum achieved?
↓
Valid resolutions
If any of these steps are skipped or implemented incorrectly, the removal may be invalid and set aside by a court.
Lessons for owners and trustees
For trustees
- You cannot be removed through surprise meetings or flawed agendas.
- Managing agents must take instructions from trustees, not individual owners.
- Courts will intervene where CSOS or bodies corporate get the law wrong.
For owners
- Dissatisfaction alone is not enough. Procedure matters.
- If trustees refuse to call an SGM, the law gives you a remedy, but you must follow it properly.
- Removing trustees without following the rules can expose owners to legal costs.
For managing agents
- Your authority comes from the trustees and the management agreement.
- Acting on instructions from non-owners is unlawful and risky.
Stay within the law
This judgment is a strong reminder that sectional title schemes are governed by rules. Trustee removal must be transparent, properly motivated and strictly compliant with the STSMA and management rules. For trustees and owners alike, understanding these processes can prevent costly disputes and ensure schemes are managed fairly and lawfully.
For help and advice with sectional title schemes
If you are facing a trustee removal dispute or a questionable CSOS decision, SD Law can answer your questions and help you resolve the matter swiftly and lawfully. Contact one of our attorneys on 086 099 5146 or simon@sdlaw.co.za. Simon Dippenaar & Associates, Inc. is a law firm of specialist property lawyers in Cape Town, Johannesburg and Durban with extensive experience in sectional title law.