Over the past couple of months, in light of the national lockdown and subsequent Alert Levels, many bodies corporate have expressed their desire to forego the holding of an AGM and to have their members simply approve Annual General Meeting (“AGM”) agenda items in writing via email.
While legislation does provide for this, it has some very strict provisos that have to be adhered to. Let’s take a closer look at these:
- Every member of the body corporate has to waive their right to the meeting in writing.
As you can imagine, this would not be too difficult to facilitate if your scheme has 4 members, but is likely to prove impossible if you have 100 members.
- These written waivers need to be given no later than one month after the body corporate’s financial year end.
Therefore, you are facing severe time constraints. If your scheme’s financial year end was more than 1 month ago, your time for obtaining these written waivers has lapsed.
- If two or more persons are jointly entitled to exercise a vote, all of them must waive the right to the meeting.
This means that every director of a company, every trustee of a trust, every member of a CC and every natural person who co-owns a unit in the scheme needs to provide such written waiver.
So what happens if you cannot satisfy items 1-3 above?
Remember that legislation provides that you don’t have to hold your meetings physically, but can do so electronically. What’s more, if a quorum is not present within 30 minutes from the time appointed for the AGM, the meeting simply stands adjourned to the same time in the following week. At that subsequent meeting, you only require two members who are entitled to vote to be present after 30 minutes in order for you to have a legally constituted quorum.
Practically this means that, if you schedule an AGM to take place via Zoom at 18:00 on the 1st of the month, but you do not reach a quorum by 18:30 on the 1st, you simply adjourn the meeting to 18:00 on the 8th of the month. If any two members, who are entitled to vote, are present by 18:30 on the 8th, you can go ahead with your AGM. Especially for bigger schemes, this method is much more likely to work than trying to get every member to waive their right to the AGM and consent in writing to every resolution that is to be passed at the AGM.
Article reference: Paddocks Press: Volume 15, Issue 8.
Specialist Community Scheme Attorney (BA (Law) LLB), Ané de Klerk, combines her work experience as a Portfolio Manager with knowledge of conveyancing and community scheme law.
This article is published under the Creative Commons Attribution license.
4 Comments.
Very informative
Along the same lines, I gather that CSOS have issued an advisory notice ‘sanctioning’ AGM’s that fall after the mandatory 4 months. Whilst not quite sure what punitive measures they are with-holding, but some folk have seen this as a justification to delay the holding of the AGM. And indeed, it does appear that a delayed AGM, substantiated by the Pandemic and Disaster Regulations, may be condoned.
However, the Act instructs the next year’s auditor to verify if the last year’s audit was held within 4 months of the fiscal year end. If one were to delay the AGM now – for justifiable reasoning perhaps; it would result in a definite qualified audit next year. Which may reflect negatively on the executives at that time.
Food for thought – especially if there is an upsurge in unit sales in the short term future.
Our managing agent says CSOS has issued a directive that AGM can be postponed indefinably after the 4 month rule. I disagree. Any ideas or recourse I can take, please? I did write to CSOS and wait for them to respond, too.
Hi Elma,
I trust all is well. Our legal team would need to assist with this query. If you would like them to assist you, please email consulting@paddocks.co.za, and the team will revert with a quote for their assistance within 1 business day.
Kind regards
The Paddocks Team