In this post from Paddocks (Thinking inside the box) we look at the importance of the legal and moral relationship trustees and the body corporate members.
Paddocks Article
Each trustee of the body corporate stands in a fiduciary relationship to the body corporate, and its members. Section 40 of the Sectional Titles Act 95 of 1986 (“the Act”), defines this important type of relationship by placing a fiduciary duty on the trustees to:
- Act honestly and in good faith;
- exercise their powers to manage or represent the body corporate, in the interest and for the benefit of the members of the body corporate;
- not to act without or exceed their powers as set out in the Act; and
- avoid a conflict of interest.
Trustees shall further avoid any material conflict between their own interests, and those of the body corporate. For example, in situations where a trustee may acquire a financial or any other type of personal benefit from a trustee decision, the trustee shall disclose their conflict of interest or potential conflict of interest, and recuse themselves from any decision, which directly or indirectly personally involves them. Where a trustee fails to disclose a (potential) conflict of interest, and it becomes known to the body corporate that the trustee has an undisclosed interest in the contract entered into, the contract may be voidable at the option of the members of the body corporate, unless a Court, upon application, orders that the body corporate is bound to the operation of the contract.
Should a trustee breach any duty arising from their fiduciary relationship to the body corporate, through their mala fide (fraudulent) or grossly negligent act or omission, they shall be liable to the body corporate for any loss suffered as a result by the body corporate, and any resultant economic benefit derived by them.
A trustee’s conduct does not constitute a breach of a fiduciary duty if the conduct was authorised (before or after) by the written approval of all the members of the body corporate, who are aware of all the material facts of the conduct.
In terms of Prescribed Management Rule 12 of Annexure 8 of the Regulations to the Act, the trustees shall be indemnified by the body corporate against all costs, losses, expenses and claims, which they may incur or become liable for, by reason of any act done or omission by them, in the discharge of their duties. This indemnification applies, except in so far as the act or omission was fraudulent or grossly negligent.
It is the duty of the trustees to pay the indemnity from the funds of the body corporate, or to ensure that there is fidelity guarantee in place, which will be used to refund any loss of monies belonging to the body corporate, or for which it is responsible, as a result of fraud or dishonesty committed by any trustee.
