Functions and powers

Functions and Powers

It is important to bear in mind that a Body Corporate being a juristic person (non-natural person) requires organs and agents to act on its behalf.  These organs are the trustees and the members in a general meeting.  Both require some parameters of order of conduct within which to function.  The members in a general meeting can be likened to the legislative arm of a government and the trustees of its executive arm.

At any stage the owners in a general meeting can direct the trustees to undertake a course of action or to abort or alter any course the trustees may have embarked on and to this extent it is worth noting that the trustees are the servants and not the masters of the Body Corporate.  As to the nature of the limitations which owners can place on the functions or powers of trustees it is difficult, if not impossible to provide common examples.  It will suffice to say that whilst the Body Corporate in a general meeting, can impose restrictions or limitations on the functions and powers of the trustees, such restrictions or limitations cannot be contrary to the provisions of the Act or the rules themselves.

Sectional title schemes are governed by the Sectional Titles Act (ST Act), 95 of 1986; the Sectional Title Schemes Management Act (STSM Act), 8 of 2011 and the Community Schemes Ombud Service Act (CSOS Act), 9 of 2011– as well as by the Management and Conduct Rules of the scheme.  The Companies Act does not apply to Sectional Title schemes. (This is also why it is not correct to refer to the Trustees as a “Board of Trustees”)

Section 3 of the STSM Act stipulates what the functions of the Body Corporate are.

Section 4 and 5 of the STSM Act stipulates what the powers of the Body Corporate are.

Section 7 of the STSM Act –

The functions and powers of the body corporate must, subject to the provisions of this Act, the rules and any restriction imposed or direction given at a general meeting of the owners of sections, be performed and exercised by the trustees of the body corporate holding office in terms of the rules.