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Sectional title corner – Can one owner cast three votes at the AGM?

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Q

Hi, please advise on the following sectional title-related questions:

  1. When using a proxy for a special general meeting (SGM) or annual general meeting (AGM) does the proxy need to be submitted to the body corporate/managing agent beforehand or can the proxy be submitted at the start of the SGM/AGM?
  2. With the new law one can only hold two proxies; does that include your own vote (assuming you own a unit). Therefore, in essence, can one individual vote for their own unit and then over and above that have TWO additional proxies?

A

Hi, the first question is not specifically regulated by legislation and the answer would then lie either in the body corporate management rules or, although less likely, in the conduct rules. In the absence of a rule requiring that a proxy be submitted a certain amount of time prior to a meeting of the body corporate, I am of the view that it is incumbent upon the individual acting as proxy to produce the proxy at any time prior to voting.

It can hardly be insisted upon that a proxy had to have been submitted a certain number of hours or days prior to a meeting when no such requirement exists in the rules, as its implementation would then be completely arbitrary and could be changed at random, say by requiring 48 hours’ written notice for one meeting, but then 72 hours’ written notice for the next.

While nothing prohibits the individual acting as a proxy from submitting the proxy as soon as is reasonably possible after becoming aware that he/she is to act as a proxy, failure to do so cannot constitute grounds for disallowing the proxy to exercise his/her vote unless it was expressly required that proxies be submitted a certain amount of time before a meeting;

With regards to the second query, Section 6(5) of the Sectional Titles Schemes Management Act, 8 of 2011, allows a member to be represented in person or by proxy at a meeting of a body corporate, provided that a person may not act as a proxy for more than two members.

Since the Act is silent with regards to what happens when a person acts both in his personal capacity and as a proxy, the answer to your query becomes a matter of interpretation.

I am of the view that attending and voting at a meeting in your personal capacity is distinct from attending in your capacity as a proxy. The Act does not say that a single person may not cast more than two votes, it simply says that a single person may not cast votes on behalf of more than two people in that person’s capacity as a proxy.

In the circumstances, I am of the view that a person would be entitled, in addition to acting in that person’s personal capacity, also to act as a proxy for two additional body corporate members in that person’s capacity as a proxy.


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Who is Marlon Shevelew?

Marlon Shevelew, director of Marlon Shevelew and Associates.

Marlon Shevelew, director of Marlon Shevelew and Associates.

Marlon Shevelew is the director of Marlon Shevelew and Associates Inc. a law firm specialising in rental property, contractual, consumer and company law. The firm is the recipient of more than 45 international property law awards. Marlon is current author of PayProp’s rental documentation and preferred rental property attorney to the Institute of Estate Agents South Africa (IEASA), the Rental Housing Tribunal Western Cape and presenter of the Advanced Residential Property Law Seminar endorsed by the University of Cape Town. Marlon has featured on Cape Talk 567 and Property Matters on DStv, contributes as a guest expert to several property publications and was invited by Juta to write a book on rental property law, by LexisNexis Butterworths to edit its forms and precedents on rental property law and, on no less than three occasions, was invited by the Law Society of South Africa to lecture and train candidate attorneys and attorneys on rental property law. Marlon also created the unique Rental Retainer ClubRentDoc  and LevyDoc which offers clients affordable legal fees for rental property and sectional title related matters. Marlon is contactable on marlon@marlonshevelew.co.za anytime for more information on these services.

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