By the Paddocks Club team
Below are examples of two questions on the Paddocks Club discussion forum, to show you what is available to our Community members!
Alleged trustee assault on teenager: What should other trustees do?
Good morning Team,
A Trustee has physically injured / assaulted a 15 year old teenager during a confrontation regarding the scheme rules. The parents of the minor have opened a case of assault against this Trustee
The other Trustees clearly do not condone this behaviour.
Prescribed Management Rule 6 does not specifically disqualify this Trustee from office.
Are there any grounds for the remaining Trustees to have this Trustee removed from office?
Is there possible liability on the body corporate or the trustees?
You are right. The circumstances you describe do not have the legal result that the trustee is disqualified / removed from office automatically, and even a criminal conviction would not not have this effect.
I think the other trustees should ask this trustee to explain what happened. Unless they are very clear in their own minds that the trustee is being “framed”, it seems to me that the best thing for the scheme is that this trustee should resign. If s/he refuses and the trustees think that they cannot trust this person to behave as a trustee should, they can convene a general meeting under Prescribed Management Rule 6(4)(g) to have owners decide whether or not to remove him/her from office.
While the criminal case against the trustee, and his/her “official” defences / explanations of the circumstances have yet to be heard and therefore there is no authoritative exterior decision that this trustee has actually behaved criminally/badly/wrongly , I think the other trustees need to be concerned and treat the situation as one that requires their intervention.
The body corporate could face a claim if it can be proved that, while he/she was acting in the course and scope of his/her duties as a trustee, this person caused the teenager’s parents a quantifiable financial loss, or caused emotional suffering that a court decides must be compensated for by way of a damages award. Other trustees could not be liable unless they were somehow also involved in the execution of the act(s) that caused the actual loss / gave rise to the damages claim.
It would be worth checking the wording of the body corporate’s insurance policy to see whether it has cover for damages incurred by trustees acting as such.
Why a conduct rule cannot prohibit prostitution or the sale of drugs
May you put something like below in your Conduct Rules:
“No prostitution of any kind or any sale of drugs are allowed in the complex”
A scheme’s conduct rules cannot validly prohibit an action which is already prohibited in terms of the common law or any national, provincial or municipal statute or by-law. So, for example, the conduct rules cannot (and do not exist to) prohibit owners and occupiers from committing murder, assault, theft, robbery, burglary, kidnapping, rape etc. Similarly they cannot prohibit drug trafficking or prostitution because these are crimes prohibited by national statutes.
A body corporate cannot assume an authority /responsibility that belongs to the state, provincial or municipal authorities, such as the South African Police Service or take steps to enforce a state, provincial or municipal law or by-law.
A body corporate’s conduct rules exist to regulate the behaviour of owners and occupiers in their use of the common property, any exclusive use area and their sections.
These rules must be within the scope of the statutory conduct restraints set out in sections 13(1) (a), (d), (e) and (g) of the Sectional Titles Schemes Management Act. This means that they can restrict owners’ rights to use and enjoy their sections, exclusive use areas and the common property when this is reasonably necessary to avoid them causing nuisance and or interfering with the rights of other owners and occupiers.
Article reference: Paddocks Press: Volume 15, Issue 01.
Graham Paddock is available to answer questions on the Paddocks Club discussion forum for Community members. Get all your questions answered by joining Paddocks Club.
This article is published under the Creative Commons Attribution license.