HF #228 | Simonè Heloïse Janser

A body corporate formed under the Sectional Titles Act, 2009 (Act No. 2 of 2009) cannot cede its responsibilities and functions entirely to another company, because the body corporate is legally vested with specific duties and powers under the Act, particularly in terms of Section 37 of the Act.

The Body Corporate’s functions as set out Section 37 of the Act, include managing the common property, enforcing conduct rules, levying contributions from owners and maintaining insurance, among others. These are statutory obligations, meaning they cannot be delegated or ceded entirely to another entity.

However, the day-to-day administration of the body corporate may be delegated to a managing agent or property management company. The body corporate may employ a managing agent under written agreement to perform specified tasks on its behalf.

Cession vs delegation

Cession typically means a transfer of rights and obligations, whereas delegation, in this context, means assigning specific duties while retaining ultimate responsibility. The body corporate remains responsible for the proper execution of its functions even when it delegates some tasks.

There are also legal risks regarding improper cession of the body corporate’s responsibilities, which may be ultra vires (beyond legal power) and could be challenged by owners or regulators. This could further result in null and void agreements or breach of fiduciary duties by trustees.

In summary

A body corporate may not cede its responsibilities and functions entirely to a company. However, it may appoint a managing agent to carry out certain functions under its supervision and within the scope of the law.

Simonè Heloïse Janser
(Associate & Conveyancer)