Comparative perspectives on the role of the trustees and the managing agent as dramatis personae in the governance of sectional title schemes in South Africa

[摘要] ENGLISH ABSTRACT : Ownership of affordable housing is made possible through the concept of sectional title,which maximizes the number of available homes per square meter and makes optimumuse of available land. The utilization of sectional title schemes to provide housing to abroader base of South Africans would only be successful if schemes are provided withan efficient management structure. Besides the general meeting, the two mostimportant dramatis personae in the management of sectional title schemes are thetrustees and the managing agent. This thesis will focus on the role played by theseadministrators in the governance of sectional title schemes.The discussion will commence with an exposition of the legal status of both these roleplayers followed by an examination of the reasons for their election and appointment toperform the day-to-day management functions of the body corporate. In order for theserole players to carry out their functions effectively they need to be suitably qualified andshould have the personal qualities required to execute the task. Furthermore, the roleplayers should be properly elected or appointed to their positions by establishedadministrative procedures. The powers, functions and duties of the trustees and themanaging agent must be clearly defined with the minimum overlap between their tasksto ensure certainty, and to avoid a situation where a certain function is either notperformed at all, or where a single function is performed by two or more of the roleplayers. Due to the fact that these role players should be held accountable for abuses ornegligence in the performance of their functions, the fiduciary position and instances ofindemnification of trustees for negligent execution of their duties will then be dealt with.This will be followed by an examination of the remuneration payable to trustees andmanaging agents and their claims for expenses incurred in the performance of theirfunctions. Finally, the terms of appointment of the managing agent will be scrutinizedand the circumstances in which his appointment and the office of trustees may beterminated will be placed on the table.The thesis will regularly identify particular deficiencies in the Sectional Titles Act 95 of1986 and the prescribed management rules relating to trustees and managing agents.Where appropriate and practicable, reference will be made to the manner in which NewSouth Wales, Singapore, Malaysia, China and Germany deal with particularshortcomings. The aim is to search for potentially more appropriate solutions to iron outsuch problems, and thereby to regulate the governance of sectional title schemes inSouth Africa more effectively.Where a sectional title scheme faces financial ruin or experiences flagrant managerialmismanagement, the Sectional Titles Act provides for the appointment of anadministrator. This measure of last resort should be avoided by ensuring that properlyelected, qualified and accountable managerial role players administer the scheme.Therefore, I propose that the Sectional Titles Act 95 of 1986 (or rather the futureSectional Titles Schemes Management Act 8 of 2011) should be amended to makeprovision for the mandatory appointment of a professional manager as the soleexecutive organ of the body corporate assisted by an elected board of trusteesconsisting of sectional owners, and who act merely in a advisory capacity. The status ofthe managing agent would be elevated to that of an executive organ of the bodycorporate. This will mean greater responsibilities for the managing agent, but wouldresult in more efficient management of South African sectional title schemes.

[发布机构] Stellenbosch University