Trustees for the time being of the Legacy Body Corporate v Bae Estates and Escapes (Pty) Ltd and Another (304/2020)  ZASCA 157 (5 November 2021)
Trustees, as body corporate nominees, have no easy job. This judgment highlights how trustees, in an effort to curb the nuisance caused by holiday sub-letting in their scheme, prohibited the owner from continuing to allow its tenant to do short term letting, a power which the rules of the scheme gave to the trustees. They went further, however, and banned the owner’s estate agent, who was mandated to find a tenant, from operating in the scheme. They wrongly assumed that the agent had vetted the sub-tenants. The agency sought to have the latter trustee resolution set aside and the Supreme Court of Appeal finally had the last word. Importantly, recognizing that trustee decisions are reviewable at common law (not under PAJA), the Court stated that the trustees’ actions in the present matter were unfair, especially since the agency was never granted an opportunity to make representations.
This is an important reminder to trustees: Their decisions are reviewable by a court if they are irrational, unjust, in breach of the principles of natural justice or otherwise procedurally unfair. These principles can be complex. Contact your sectional title experts at STBB for assistance.