Page 62 - Q&A 2019/2020

Can I institute legal action on behalf of my
body corporate?

Corlia van Zyl
April 2019

“I live in a sectional title that used to have beautiful common property areas.
The last year or two though, owners have been causing damage to these
garden areas and walkways and the body corporate is doing nothing to stop
it. Can I take legal action against the owners that are causing the damage or
can only the body corporate do something?”

From the Sectional Title Schemes Management Act (“STSMA”) it is clear that
the body corporate of a sectional title scheme is the entity responsible for the
enforcement of the rules, the control, administration and management of the
scheme and the common property for the benefit of all the owners in such
scheme.
The STSMA states that the body corporate has the capacity to sue for any Property
damage to the common property or in respect of any matter in connection
with the land or building for which the body corporate is liable or for which the
owners are jointly liable.

But, if the body corporate does nothing, can an owner then institute action on
behalf of the body corporate?
This point arose in a recent Constitutional Court case where the Court had to
consider when an owner may institute action on behalf of a body corporate.
Although the case refers to the sections of the repealed Sectional Titles Act 95
of 1986, the relevant principles and wording can be applied to section 9 of the
STSMA.

Section 9 of the STSMA makes provision for the instances when an owner may
institute action on behalf of the body corporate as well as the steps to be taken.
Should an owner be of the opinion that he or the body corporate is suffering
damages or loss in terms of the abovementioned instances where the body
corporate may sue and the body corporate has not instituted any action to
recover the damages or enforce the rules, then such an owner must first serve
the body corporate with a written notice demanding that the body corporate
institute action within one month from date of service of the letter.
Should the body corporate fail to take the necessary steps within one month,
then the owner may apply to the court for the appointment of a curator ad
litem for the body corporate for the purpose of instituting action on behalf of
the body corporate. The court will request an investigation into the matter by the
curator ad litem and if the court is satisfied with the investigation, the court will
confirm the appointment of the curator ad litem and order him to proceed with

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