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Sectional title schemes and executive managing agents

Sectional title schemes and executive managing agents

The sectional title schemes management act 8 of 2011

Trustee issues in sectional title schemes or body corporate issued can be very time consuming, it can also be every costly. In this article, we will take a look at the possible remedy for the aforementioned issues.

The Sectional Tiles Act 95 of 1986, as amended (“STA”), initially regulated all the aspects of sectional title schemes, however, as from 7 October 2016, the management part of the STA has been repealed and replaced by the Sectional Title Schemes Management Act, 8 of 2011 (“STSMA”).

In terms of section 28 of the STSMA, provision is now made for the appointment by special resolution (or by application to the Community Scheme Ombud Service by members of the sectional title scheme who are entitled to 25% of the total participation quotas of all sections in the scheme) of trustees of the body corporate of a scheme, of an executive managing agent to perform functions that would usually have been performed by the trustees themselves.

Reasoning behind the appointment of an executive managing agent
It is probable that the legislature decided on the creation of section 28 to make provision for instances where the trustees of a body corporate do not get along and cannot function in a cohesive manner or make informed decisions regarding the management of the scheme.

An executive managing agent is appointed by way of a management agreement between the trustees of the body corporate and the managing agent. The executive management agent is appointed to perform the functions and to exercise the powers usually performed by the trustees.

Duties and functions of executive managing agents
After the appointment of an executive managing agent, he/she will be subject to all the normal duties and obligations imposed on trustees of the body corporate, and will manage the scheme with the necessary skill and care which can be expected of the trustees.

Whilst the executive managing agent performs its powers and functions in the scheme, he/she has a duty to arrange for an inspection of the common property of the scheme every six months and to report to each member of the body corporate every four months in respect of the administration of the scheme.

It is clear that an executive managing agent is in a position where he/she has, in a sense, a fiduciary duty to all the members of the body corporate of a scheme, to act with the necessary care and skill whilst performing his/her duties.

To make such appointment more onerous, an executive managing agent will be held liable for any loss suffered by a body corporate in the event of them failing to exercise their fiduciary duties in the management of the scheme.

Although the STSMA has not been in operation for a significant period of time, and thus not much time had passed in order for the rules pertaining to executive managing agents to be tested to its fullest extent, the movement in our law to make provision for such appointment to ensure that a scheme is duly functioning, is a step in the right direction.

© Mareon Basson LLB (UP) - Schoemanlaw Inc. - 2017

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It is a prevailing trend in the 21st century for couples to move in together without any intention of ever getting married, for whatsoever reason. Even though there is nothing wrong with this approach, there are some things to consider in this regard, i.e. what happens when the relationship ends?


As this type of partnership, irrespective of the time the couple had been together, is not currently recognised in our law – there is no legislation governing this situation in order to provide some protection to these partners. The greater issue arises once children are born from these partnerships, which happens more often than not, and the couple then separates – even though the child will be entitled to receive maintenance which is provided for in the Children’s Act 38 of 2005 and the Maintenance Act 99 of 1998, as amended, the mother (in most instances) does not receive the same entitlement to maintenance, irrespective of whether she had, during the subsistence of the partnership, given up her career to care and build the household.


What is the effect of non-recognition of partnerships like these?


In light of the above, it is clear that life partners, as described above, do not enjoy any protection of those who concluded a marriage or civil union. As this is a prevailing trend for couples, the legislature had to find a way in which these individuals can be protected so that they may have a right of recourse against their partner when breaking up, hence the publication of the draft Domestic Partnership Bill in 2008. It is clear that the legislature saw the need for implementation of some sort of safety net for couples who live together as if they are married, who have children and form a family, but never go down that route and thereafter a separation occurs.


Unfortunately, it is now 9 years later and the Domestic Partnership Bill has not been promulgated, which still leave partners with little to no protection in this regard.


The view of the Supreme Court of Appeal

Luckily, the Supreme Court of Appeal judgment in Ponelat v Schrepfer (802/2010) [2011] ZASCA 167 (29 September 2011) set the stage for the acknowledgement of a tacit universal partnership to be established between two partners if it can be proven that they have the animus contrahendi to form such partnership, the facts of each matter will accordingly have to be taken into account and the courts will deal with each matter based thereon.


In Butters v Mncora (181/2011) [2012] ZASCA 28 (28 March 2012) it was indicated that there is a possibility of succeeding in a claim against a partner, if it can be proven that a universal partnership has in fact been established and laying out various manners in which to determine whether there is a partnership to that effect.

It is in fact quite difficult to prove the existence of a universal partnership and one should be correctly advised in this regard, prior to impulsive actions being taken. To be successful with a universal partnership claim, it must be proved that:

  • both partners contributed to a specific joint venture in some form or other through their labour, capital or skill;
  • the venture was conducted for the benefit of both partners;
  • the venture was conducted for profit; and
  • a universal partnership came into existence.


It is clear from the above that the courts will consider these types of applications and even grant orders for maintenance – the burden of proving all the elements as laid out above can result in the process being quite a costly one.


What am I to do now?

Seeing as though the legal route may be extremely costly, one should explore alternative options to ensure that your rights and future is protected, rather be safe than sorry. Some of these routes include the drafting of a life partnership agreement and/or a cohabitant agreement wherein the relationship is recorded and in a way establishes the rights and obligations of the partners, be in during the subsistence of the partnership or upon dissolution thereof.




It remains everyone’s choice whether they want to marry or not, and accordingly, one should ensure that you are protected in the long run if you decide to live together without getting married. We here at SchoemanLaw Inc. believe that prevention is always better, and provide tailored legal services to our clients to ensure that they are protected from a circumstance which could result in a major loss and long, expensive and difficult battle, otherwise avoidable.