I refer to observation made by Prof Graham Paddock and Anton Kelly ("P & K"), in Implementing decisions, to the effect that the wording of the introduction to section 17 (1) of the Sectional Titles Act, 1986 (Act No. 95 of 1986), as amended ("the Act"), "is awkward, suggesting that the unanimous resolution must be taken by owners and the holder of a section 25 right, i.e. that the holder of a section 25 right can and must participate in the taking of the unanimous resolution."
Whilst I agree that the awkwardness in the said wording is the fact that a holder of a section 25 right is not an owner as defined in section 1 (1) of the Act, I have misgivings about the effect of P & K's suggestion, that the introduction to section 17 (1) of Act should be amended to read: "The owners may by unanimous resolution, and with the written consent of the holder of any applicable right of extension contemplated in section 25, direct the body corporate on their behalf to alienate common property or any part thereof, or to let common property or any part thereof under a lease ……….."
In my opinion, the amendment suggested by P & K's would unintentionally and undesirably place owners at a material disadvantage as against a holder of a section 25 right because, for example, in the absence of a written consent by one holder of a section 25 right, a unanimous resolution by any number of owners would be to no avail.
Therefore, in order to place owners on an equal footing with a holder of a section 25 right, I would suggest that the words "Subject to subsection (7)," be inserted at the beginning of section 17 (1) of the Act and that the following subsection be inserted after subsection (6) of the Act:
"(7) For the purposes of the resolution referred to in subsection (1), a holder of a right of extension contemplated in section 25 shall be deemed to be an owner."
Thabo Nqhome
20 July 2009
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