Achieving the improbable and sometimes the impossible

29 April 2022 | Zerlinda van der Merwe

Most of our readers would have, at one time or another, needed to achieve or be part of obtaining a special and/or unanimous resolution in a body corporate. For most schemes, obtaining a unanimous resolution is a near impossible task, if not completely impossible, and most often simply for the increased quorum requirement of 80% vs 33.3%, and the inability to table such a resolution at an adjourned annual or special general meeting, which still requires the elevated quorum requirement, unlike an ordinary and/or special resolution.

Interestingly, we recently ran a poll in which we asked managing agents and trustees of sectional title schemes how often they achieve the required quorum at a annual or special general meeting in order to table a unanimous resolution, and the results were as expected, in that:

• 26% don’t even try to table unanimous resolutions due to the quorum requirements;

• 23% obtain the required quorum around half of the time;

• 16% obtain the required quorum every time, and

• 35% never achieve the required quorum.

There is no mechanism to achieve such a unanimous resolution with a lower threshold of members, being either present personally or represented by proxy, at an annual or special general meeting.

What is the solution you may ask? Under section 6(9) of the Sectional Titles Schemes Management Act (“the STSMA”), an application may be made to the Community Schemes Ombud Service (“the CSOS”) for consideration and approval of such a resolution. The process of the CSOS applies equally for the required written approval of all owners within the scheme.

The CSOS requires the completion of the prescribed ST1 form, click here to obtain a copy of the form, to be submitted to sectionaltitles@csos.org.za. Should multiple special and/or unanimous resolutions be required, multiple applications may be made, or 1 application with multiple attachments as required.

The attachments required are the:

• notice of the annual or special general meeting;

• proof of delivery and receipt;

• minutes of the meeting, and

• outcome of the votes, including the votes against, noting that reasons will need to be forthcoming, as will be set out below.

The application must be signed by the applicant or their duly authorised representative, indicating their capacity and attaching the authority.

The application must be made within 30 days of the failed special and/or unanimous resolution, noting that an attempt must be made to obtain same via the procedures as set out in the STSMA.

The CSOS will notify all the members of the application made to its offices via the trustees or the managing agent of the body corporate, who will be required to submit proof that the notification of the CSOS has been sent to and received by all the members. Any member wishing to dispute or object to the special and/or unanimous resolution must do so within 21 days of the date of the notification, with reasons, and the CSOS may extend this period by a further 10 days if required. If no response/s are received by the CSOS, the CSOS will consider the application and make a decision within 30 days following the notification period of 21 or 31 days.

In its determination of the outcome, the CSOS will consider the object and purpose of the special and/or unanimous resolution as well as the relevant provision/s of the STSMA, the reasons for any objection, and whether the resolution promotes the proper governance of the scheme.

Very important to note is that the CSOS will only consider an application in regard to a special resolution if a quorum is met and a minimum of 50% of the members present or represented vote in favour. In the case of a unanimous resolution, the quorum requirement must be met, and at least 75% vote in favour must be achieved. The above applies to such a resolution/s being tabled by means of round robin (in writing) resolution as well.

Impossible, perhaps not, improbable, more likely.

For more information or to obtain our assistance in this regard, please contact us at TVDM Consultants on info@tvdmconsultants.com or 061 536 3138.

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