Some of the owners of a complex wanted to remove the Chairperson as a Trustee.
It should be clear if they just want to remove him as Chairperson (that the Trustees can do) or if they want to remove him as a Trustee as well.
It was explained to them that there are certain instances where a Trustee are disqualified from being a Trustee.
PMR 6 (compared to the previous Act’s PMR in red)
- A trustee ceases to hold office if that trustee—
- by written notice to the body corporate, resigns from office; same
- is declared by a court to be of unsound mind; same; but declared by court is new
- is or becomes insolvent and the insolvency results in the sequestration of that trustee’s estate; same
- is convicted, or has been convicted in the Republic or elsewhere, of theft, fraud, forgery, perjury or any other offence involving dishonesty; amended to include the bold part
- is sentenced to imprisonment without the option of a fine; new
- is removed from an office of trust on account of misconduct in respect of fraud or the misappropriation of money; new
- is removed from office by ordinary resolution of a general meeting; provided the intention to vote on the proposed removal was specified in the notice convening the meeting; same
- is or becomes disqualified to hold office as a director of a company in terms of the Companies Act, 2008 (Act No. 71 of 2008); or – same
(i) fails or refuses to pay the body corporate any amount due by that trustee after a court or adjudicator has given a judgment or order for payment of that amount. (No longer 60 days thing)
It was explained that he could then only be removed at a general meeting and the intention to vote on his removal must be specified on the notice of the meeting.
At another complex they called the meeting but did not specify on the notice that they wanted to remove the Trustee(s) – they only stated “Election of Trustees” on the agenda – this is not correct – the intention to remove must be stipulated on the agenda.
Another complex sent a circular to all owners to vote on removing a Trustee – this is not correct – it can only be done at a general meeting.
If the Trustee is in arrears with his levies it is not sufficient ground for automatic removal – there must be a court or adjudicator order to that effect against him. Even if he owes R20 000 and no court or adjudicator order has been received.
Another option is to ask a Trustee to resign but he cannot be forced to resign.