Letters to the editor – January/February 2019

February 1st, 2019
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PO Box 36626, Menlo Park 0102

Docex 82, Pretoria

E-mail: derebus@derebus.org.za

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Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

 

Response to ‘maintenance of common property in sectional title schemes’

I fully agree with Brian Agar’s views expressed in his excellent article ‘Maintenance of common property in sectional title schemes’ 2018 (Oct) DR 19. However, I am surprised that he did not deal with subs 10(2) of the Sectional Titles Schemes Management Act 8 of 2011 (the Act), which states at s 10(4) that: ‘The management or conduct rules referred to in subsection (2) take effect from the date of establishment of the body corporate.’ This is nonsense if it means that it applies to schemes, which were established before the Act came into force, and were subject to rules prescribed in terms of the Sectional Titles Act 95 of 1986. But it makes perfect sense if, as Mr Agar states, subs 10(12) of the Act means that management and conduct rules made pursuant to the Act only apply to schemes established after the Act came into force, namely, 7 October 2016. Schemes established before the date of commencement, 7 October 2016, accordingly do not in terms of their rules, have to have a maintenance plan and the consequent reserve fund, as they are subject to the management and conduct rules prescribed in terms of s 55 of the 1986 Act. The Act repealed much of the 1986 Act, but not the subsections of s 55 – which authorise regulations – which provide for management and conduct rules. This enables future amendments of the separate prescribed management and conduct rules, which apply to schemes established before 7 October 2016.

Finally, Mr Agar says ‘trustees are faced with a dilemma by the commands of the Act to establish a reserve fund’, but s 3(1)(b) of the Act continues ‘but not less than such amounts as may be prescribed by the Minister’. As no amounts have been prescribed for schemes established before 7 October 2016 presumably these ‘commands’ are a nullity for as long as no amounts have been prescribed.

Mike Simpson, attorney, Johannesburg

This article was first published in De Rebus in 2019 (Jan/Feb) DR 4.

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