Magagula v The Trustees of The Kemptonian Body Corporate

The applicant, Daniel Gasela Magagula, is the registered owner of unit 17 in The Kemptonian sectional title scheme. He brought a dispute-resolution application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act) against the trustees of the body corporate. He sought two forms of relief: first, an order declaring invalid a trustees' resolution relating to the appointment of a new security company; and second, an order compelling the body corporate to provide him with the trustees' resolution relating to the termination of the previous security company. The applicant alleged that he had been unlawfully excluded from the relevant trustees' meeting and decision-making process, that no proper trustees' meeting or written round-robin resolution had occurred, that no budget or quotations had been properly approved, and that the newly appointed security company was more expensive for the same service. The respondent contended that the applicant had ceased to be a trustee on 6 February 2023 because of levy arrears and a court judgment against him, that a prior CSOS adjudication had confirmed the validity of his removal as trustee, and that the trustees lawfully resolved on 31 March 2023 to terminate Raisei Security and appoint FBI Security. The respondent also relied on a written resolution authorising Riaan Oosthuysen to act on behalf of the body corporate in the matter.

• Whether the applicant was entitled to challenge the validity of the trustees' resolution appointing a new security company on the basis that the trustees acted unlawfully or outside their powers.
• Whether the applicant was still a trustee at the time of the impugned decision and whether his alleged exclusion from trustees' processes affected the validity of the resolution.
• Whether the body corporate had wrongfully denied the applicant access to records or documents, specifically the trustees' resolution relating to the termination of the erstwhile security company.
• Whether legal representation should be permitted in the adjudication under section 52 of the CSOS Act.

The application succeeded in part. The relief seeking a declaration that the trustees' resolution was void or invalid was dismissed. The respondent body corporate was directed to provide the applicant with the trustees' resolution relating to the termination of the erstwhile security company within 10 days of receipt of the order. No order as to costs was made.

A body corporate's trustees may exercise the powers of the body corporate, including the appointment of agents or service providers, in terms of section 4(a) and section 7(1) of the STSMA and the prescribed management rules, unless restricted by the owners in general meeting. An owner/member is entitled, under section 39(7)(a) of the CSOS Act read with regulation 27 of the STSMA regulations, to access body corporate records and obtain copies of requested documents, and the body corporate must provide them within the prescribed period. Where a prior determination has established that a person has ceased to be a trustee, that person cannot attack a trustees' decision on the footing that he was entitled to participate as a trustee.

The adjudicator observed that administrative bodies should be cautious in granting legal representation because it may effectively close the door on a litigant, but also remarked that refusing representation in an appropriate case may prevent a matter from being properly ventilated and may offend the audi alteram partem principle. These comments were ancillary to the main merits determination. The adjudicator also made general remarks about relevance, credibility, probabilities, and the balance of probabilities as the standard for assessing evidence.

The decision is significant in community schemes jurisprudence because it confirms two important principles under the CSOS and STSMA framework: first, trustees generally have authority to appoint service providers such as security companies unless limited by owners in general meeting; and second, unit owners are entitled to inspect and obtain copies of body corporate records, including trustee resolutions, on request. The matter also illustrates the adjudicator's discretionary power to permit legal representation under section 52 of the CSOS Act where fairness and the interests of justice so require.