Stand up and be counted

Private Property South Africa
Anna-Marie Smith

Being a legal-wise property owner is an arduous but necessary business – and even more so when looking at how the law prescribes that voting processes must be applied at sectional title scheme meetings.

On average, the passing of resolutions at annual general meetings, which mostly relate to budgets and minor improvements, is a straightforward business of “one hand, one vote”.

Special general meetings are usually called to resolve unique circumstances in a short time. For example, the impact of the cost of urgent damage repairs caused by an unpredictable act of nature will vary according to the participation quota of individual scheme holders.

Check your proportion

When not all the owners within a scheme hold exactly the same proportions of a property, voting becomes more complex, says Gabriel da Mata of Schindlers Attorneys. Although it is clearly stipulated in the Sectional Titles Act 95 of 1986, the fact that sectional title owners may vote by poll or proxy as well as the raising of hands, is not common knowledge – even among some developers.

Although voting by poll or ballot serves the purposes of fair practise to all owners, it can only take place by pre-arrangement with the chairman prior to a meeting, or by special request during a meeting. According to the law, scheme holders of more than one unit, or those whose floor space exceeds that of average units, have the right to exercise greater saying power within a scheme.

The Prescribed Management Rules of the Act state: “At any general meeting, a resolution put to the vote of the meeting shall be decided on a show of hands, unless either prior to or on the declaration by the chairman of the result of the show of hands, a poll is demanded by any person entitled to vote at such meeting.”

Shhhhh, it’s a secret

Poll voting in written form therefore discounts the practical use of secret ballots, since their anonymity prevent trustees from knowing the participation quotas of voters.

Also important to note, says Da Mata, is that voting by poll is allowed despite developers amending standard conduct and management rules of a scheme: “Only certain parts of the standard rules can be altered by a developer, and the voting process cannot be changed, regardless of whether or not the developer altered the conduct and management rules.”

Buyers into sectional title schemes are wise to obtain the applicable set of conduct and management rules of a development, as this will reveal whether a developer of a scheme has decided not to alter the standard rules.

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