Resolutions versus decisions in community schemes

Navigating legal authority, governance and disputes

25 August 2025 | Rizaar Smidt and Francoa Willemse

In this practical article, we will dive into the comparison of resolutions and decisions in community schemes (specifically bodies corporate and homeowners’ associations). The legal rules under the Sectional Titles Schemes Management Act 8 of 2011 (“STSMA”), incorporated in the Community Schemes Ombud Service Act 9 of 2011 (“CSOSA”) Consolidated Practice Directive 1 of 2025 and South African common law, with a few recent case references will also be explained.

Community schemes are governed by a mix of statutes, delegated rules and common law. Two words are often used interchangeably in conversation “decision” and “resolution” but they have very different legal shapes and consequences in practice. It is crucial to grasp this basic terminology as it affects how power is exercised, which records must be kept and, more importantly, how decisions may be challenged.

So, what exactly do we mean by “decision” and “resolution”?

A decision in the everyday sense can be defined to include any act or determination taken by a governing organ of the scheme (such as the trustees or the board of directors). Practical examples of a decision taken by a governing body includes, but is not limited to, the institution of fines or hiring contractors in terms of service level agreements.

A resolution, on the other hand and in the legal sense, can be defined as a formal, recorded outcome of a meeting put to and voted on by owners or members of a body corporate or homeowners association (“HOA”). In sectional title schemes, resolutions can furthermore be subdivided into an ordinary resolution, a special resolution or a unanimous resolution as required by statute, and in an HOA, the Memorandum/Constitution.

However, it is important to note that a decision can be made by the trustees under delegated authority without being a formal resolution of owners. On the contrary, some actions can only be authorised by an owners’ resolution (such as a special or unanimous resolution). The statutory framework, briefly discussed below, will guide you as to the correct resolution to be used in the circumstances.

What does the law say?

The STSMA establishes the bodies corporate and sets governance rules for sectional title schemes. Needless to say, all bodies corporate are bound by the STSMA and any deviation therefrom may lead to disputes to be resolved upon conciliation or adjudication by the Community Schemes Ombud Serivce (“CSOS”).

The STSMA and rules identify which matters require ordinary, special or unanimous resolutions of an owners’ meeting (or via the process of round robin). Practical examples may include:

passing the budget (ordinary resolution),
major alterations to common property (special - or unanimous resolution depending on the rule),
or the amendment of participation quotas or exclusive-use rights (often unanimous resolution).

Furthermore, and as mentioned above, trustees are empowered to make day-to-day decisions on behalf of the body corporate, but their power is subject to limits in the STSMA and the scheme’s rules, including directives and restrictions of the members.

Where the STSMA or the rules reserve a power to owners, trustees cannot lawfully bypass an owners’ resolution. This is because the STSMA prescribes certain formalities that must be complied with. Formalities contained in the STSMA includes the notice of meetings, quorum and voting thresholds, keeping of meeting minutes and distribution to owners, just to name a few. What are the consequence for the failure to adhere to these formalities you might ask – it may render any resolution voidable.

Now, what does the CSOS Consolidated Practice Directive 1 of 2025 add?

The law does not exist in a vacuum and is ever-changing. It is therefore important for community schemes specialists, managing agents and trustees to acquaint themselves with the latest case law, Acts and directives.

In July 2025, CSOS published a consolidated practice directive that brings previous directives, circulars and guidance into a single instrument.

The 2025 consolidated practice directives highlights important features relevant to decisions and resolutions in that it clarifies procedures for special and unanimous resolutions, record-keeping requirements and the Ombud’s approach to disputes about the validity of resolutions or procedural irregularities. It furthermore consolidates guidance on “undesirable rules”, debt collection and verification of schemes.

The CSOS, again, emphasises formalities to be complied with. It can be summarised that the CSOS will investigate whether the correct process and notice were followed when adjudicating a complaint. It all boils down to an expectation created by the CSOS that schemes will use transparent processes.

How the South African common law applies to HOA’s and bodies corporate

Bodies corporate and incorporated HOA’s are creatures of statute or incorporation documents but they operate within the general frame of South African common law.

Where an HOA is incorporated as a company (“NPC”) or where a body corporate exists under the STSMA, its office-bearers owe duties to the scheme. Duties include to act bona fide for proper purposes and in the interests of the owners as a whole. These duties are rooted in common law and reinforced by statutory duties.

Aggrieved owners can also bring disputes to the CSOS or to the courts for review or enforcement. Case law shows courts will review whether a body corporate or HOA followed its own constitution or rules and statutory procedures. Recent judgments has illustrated that courts will intervene where trustees or HOA boards exceed delegated powers or where the owners’ voting thresholds were ignored.

Common law remedies include:

setting aside resolutions,
interdicts,
orders declaring actions ultra vires, and
mandamus-type orders compelling compliance.

Conclusion | Decisions and resolutions are different

A decision and a resolution are not the same in the governance of community schemes. The STSMA and scheme documents allocate certain powers to trustees and reserve other matters to owners’ resolutions. The 2025 CSOS consolidated practice directive reinforces the importance of observing formalities and provides a modern roadmap for dispute resolution. For trustees and HOA boards the rule of thumb is simple: act confidently within delegated authority — and get owners’ formal approval where the law or rules require it. When that boundary is blurred, the path often leads to CSOS or the courts.

About Rizaar Smidt

Rizaar Smidt is a Community Schemes Consultant at TVDM Consultants.

Rizaar studied at the University of the Western Cape, where he obtained his LLB degree Cum Laude. He served his articles of clerkship at STBB, a leading law firm in South Africa, gaining extensive experience in Property Law, as well as General and Commercial Litigation. Following articles.

Click here to learn more about him.

About Francoa Willemse

Francoa Willemse is a Community Schemes Consultant at TVDM Consultants.

Francoa, an admitted and practicing attorney, grew up in Klerksdorp, North-West Province and attended the North-West University where he obtained his LLB and LLM qualifications, with distinctions. During his studies, Francoa assisted the Faculty of Law as a supplementary instructor and examiner for the Law of Evidence for third year law students.