A Paddocks Sectional Title Lifestyle Blog
By Carryn Melissa Durham
I was inspired to write this blog article after reading a recent post on the Paddocks Facebook page.
What does the legislation say in this regard?
Prescribed Management rule (“PMR”) 13 deals with disqualification of trustees and their removal from office. PMR 13(b) states that a trustee shall cease to hold office as such if he is or becomes of unsound mind.
The question is then:
What does it mean for a trustee to be of unsound mind within the context of PMR 13(b)? There is no legal definition of what it means to be of unsound mind. The general principle is that a person of unsound mind is an adult who, from infirmity of mind, is incapable of managing him/herself or his/her affairs. This will always be a question of fact, taking the cognitive functioning of the person into account.
There is a general presumption that persons are sane and legally competent to conduct their own affairs, unless the contrary is proven. This is not a decision that can be made arbitrarily by a lay person. Furthermore, the body corporate cannot request that a trustee provide a certificate of sound mind.
The common law provides for the appointment of a curator in terms of rule 57 of the High Court Uniform Rules by order of High Court. The Mental Health Care Act 17 of 2002 also deals with the determinations concerning mental health status. A health care professional would need to do a clinical evaluation, taking all the particular circumstances of the person into account. The Master of the High Court will then appoint an administrator on application. The Administration of Estates Act 66 of 1965 regulates curators and administrators. It is only in the above-mentioned circumstances that a trustee can be disqualified in terms of PMR 13(b).
The question as to whether a trustee is capable of managing the affairs of the body corporate will not always turn on whether the trustee is of sound mind or not. Where a trustee is not performing their managerial tasks in the best interests of the body corporate due to lower intelligence or emotional instability the body corporate can, by ordinary resolution of the general meeting, remove the trustee from office provided that the intention to vote upon the removal from office has been specified in the notice convening the meeting.
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