Community Living in the Time of COVID-19

Marina Constas, BBM LAW

Following the declaration of a national state of disaster by President Cyril Ramaphosa to curb the spread of Covid-19 in South Africa, the trustees and directors of community schemes like townhouse complexes, retirement villages and residential estates must ensure that the measures implemented by the President are complied with, says specialist community schemes attorney Marina Constas. Failure to do so, she states, would constitute a breach of their fiduciary duty.

“President Ramaphosa’s announcement included the prohibition of gatherings of over 100 people. Social and community gatherings are prevalent in South Africa and nowhere more so than in our very own fifty six thousand sectional title schemes and five hundred and thirty thousand individual homes within homeowners’ associations,” Constas notes.

“With the growing threat of Covid-19 or novel coronavirus, however, living in close proximity to each other is not ideal at the moment. Minimising the risk of the spread of the virus is critical in order to avert a complete crisis at national healthcare level. Immediate actions to be taken talk to limiting contact among groups of people.

“In larger residential schemes, it is conceivable that one hundred or more people could attend an annual or special general meeting. Even with fewer attendees, I question whether there should be meetings at all for the time being – especially in view of the rate at which the number of confirmed cases of novel coronavirus is escalating. A further consideration is the age and vulnerability of residents in community schemes like retirement villages. In addition, with an increasing number of people going into isolation, meetings may become impossible.”

Constas explains that the Sectional Titles Schemes Management Act 8 of 2011 does make provision for situations where special or annual general meetings can be avoided. “Management Rule 17(9) states that the body corporate does not have to hold a special general meeting to consider a resolution, if all members waive the right to the meeting and consent to the resolution in writing. Management rule 17(2) states that the body corporate is not obliged to hold an annual general meeting, if, before or within one month of the end of financial year, all members in writing waive the right to the meeting and consent in writing to all the motions.

“Attendance at these meetings does not have to be in person,” she expands. “Management Rule 17(10) states that a body corporate may make arrangements for attendance at an annual or special general meeting by telephone or any other method as long as all members have access, all members can participate, and all members are clearly identifiable. In Management Rule 11(5), a similar provision is made in respect of trustees’ meetings.”

Constas says that residents in community schemes shoulder a great deal of responsibility to curb the spread of infection within their walls. “There is no doubt that this virus can be beaten. A robust committee of trustees or directors who are proactive and committed to this cause, working within the parameters of the law, together with owners and occupants, can help to make it happen.”