Ngumbela v Selbourne Green Body Corporate

The applicant, Nontsikelelo Albertina Ngumbela, was the owner of unit 64 in the Selbourne Green Body Corporate in East London and served as a trustee. A trustees' meeting was held on 20 June 2023, with notice and agenda circulated in advance. Item 6.4 of the agenda concerned the removal of a trustee. At that meeting, the trustees resolved to call a Special General Meeting (SGM) to determine the applicant's suitability to remain a trustee. The applicant contended that the resolution to call the SGM was void or invalid because the motion was allegedly not properly put to a vote, the meeting was toxic and dominated by lies, and the trustees lacked authority to remove her. She also alleged discrimination, racism, and mismanagement by certain trustees, although those complaints were said to be the subject of another pending application. The applicant lodged the present CSOS application on 23 June 2023, before the SGM was held. The SGM was later held on 19 July 2023, where, according to the respondent, all owners and proxies present voted unanimously to remove the applicant as trustee.

• Whether the trustees' resolution taken on 20 June 2023 to call a Special General Meeting to consider the applicant's removal as trustee was void or invalid under section 39(4)(c) of the CSOS Act.
• Whether the trustees' meeting of 20 June 2023 was properly and procedurally convened in compliance with the prescribed management rules.
• Whether the applicant had proved, on a balance of probabilities, that there was procedural non-compliance in the adoption of the resolution to call the SGM.

The application was dismissed. The adjudicator refused the relief sought by the applicant, namely an order declaring the trustees' resolution to call a Special General Meeting void or invalid. No order as to costs was made.

Where a body corporate trustees' meeting has been properly convened with due notice in terms of Prescribed Management Rule 11(1), and a motion is adopted in accordance with Prescribed Management Rule 14(1) by a majority of trustees present and voting, a resolution passed at that meeting is valid. A party seeking relief under section 39(4)(c) of the CSOS Act to declare such a resolution void or invalid bears the onus of proving procedural or legal invalidity on a balance of probabilities.

The adjudicator noted that allegations of racism, discrimination, mismanagement, and breach of fiduciary duties were not dealt with because they fell outside the immediate relief sought and appeared to be the subject of another pending application. The adjudicator also observed that the applicant was later removed as trustee at an SGM where the members present allegedly voted unanimously in favour of her removal, but this was not the primary issue for determination in the present application.

The matter is significant within the community schemes context because it confirms that a CSOS adjudicator will focus narrowly on the specific statutory relief sought and will not determine collateral complaints not necessary for deciding that relief. It also illustrates the application of the Prescribed Management Rules governing trustees' meetings and voting, and underscores that a party challenging a trustees' resolution must identify and prove actual procedural non-compliance. Mere allegations that a meeting was toxic, unfair, or motivated by ulterior considerations are insufficient without proof that the meeting or vote contravened the applicable rules.