Clarifying access to body corporate records – Key legal insights from the Montrose Mews Case
Montrose Mews Body Corporate v Moela (2023/019308) [2024] ZAGPJHC 198; 2024 (5) SA 291 (GJ) (7 March 2024)
Unit owners in sectional title schemes may occasionally question the management of their scheme by the body corporate, often due to concerns over financial mismanagement or lack of transparency. Whether these concerns are justified often depends on the information available to the owners, which can either confirm or alleviate their fears. However, a common challenge arises when owners seek access to this information, typically controlled by the body corporate.
The ruling in the case of Montrose Mews Body Corporate v Moela NO and others [2024] JOL 63438 (GJ) addressed the critical issue of how unit owners can obtain information from a body corporate. In this case, the Gauteng High Court considered whether the Promotion of Access to Information Act 2 of 2000 (PAIA) or the Sectional Titles Schemes Management Act 8 of 2011 (STSMA) governs requests for such information.
The dispute in Montrose Mews arose when a unit owner suspected financial mismanagement and requested the body corporate's bank statements. The body corporate responded by citing PAIA as the basis for handling the request. Dissatisfied, the owner approached the Community Schemes Ombud Service (CSOS) for clarity on the issue. The CSOS ruled that PAIA was not applicable in this situation, and that the STSMA governed such requests, given that the owner's right to access the body corporate’s financial records was clearly outlined in the prescribed management rules.
Disagreeing with the CSOS’s determination, the body corporate sought a review of the CSOS’s ruling in the Gauteng High Court. The High Court upheld the CSOS’s decision, reaffirming that PAIA did not apply. The court emphasised that where a pre-existing legal relationship exists — such as between a unit owner and the body corporate — PAIA is not relevant. Instead, access to financial records is regulated by the STSMA, which entitles owners to request information necessary to assess the body corporate's financial position.
However, the court also clarified that owners do not have unrestricted access to all information. The request for documents must align with the purpose of assessing the financial status of the body corporate. Therefore, the nature of the request and the specific rules governing the scheme must be considered to determine if the information should be disclosed.
The STSMA offers a clear framework for information requests
While PAIA may not apply in such cases due to the existing legal relationship between unit owners and the body corporate. Unit owners seeking access to body corporate information should seek legal advice to ensure their requests are made through the appropriate channels.
If you are interested in seeking our legal advice on the above matter, please email info@tvdmconsultants.com or contact 061 536 3138 today!
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Meet the Author
Rizaar Smidt is a Community Schemes Consultant at TVDM Consultants, to read more about Rizaar, click here.
Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of TVDM Consultants. The content herein is for information purpose only, and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever, and no action should be taken on the basis thereof unless the application and accuracy has been confirmed by a legal advisor. TVDM Consultants and the author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content.
