By Auren Freitas dos Santos
In a notable judgment handed down on 28 November 2023, the High Court of South Africa (Gauteng Division, Pretoria) dismissed an appeal in a defamation case involving a Body Corporate and one of its members.
The member, a retired police officer and a former Body Corporate trustee, sued the Body Corporate for defamation. The dispute arose from a letter sent by the Body Corporate’s attorneys to the member. This letter accused the member of running a carpentry business from his garage, causing nuisance, and illegally using common property electricity.
The member claimed that the letter was defamatory because it was distributed to the managing agent and Board of Trustees, constituting publication and it damaged his reputation by accusing him of misconduct without any substantial proof or prior investigation. The District Magistrate ruled in favour of the member, finding the letter defamatory and awarding him R50,000 in damages.
The Body Corporate appealed the decision, contesting the findings of defamation and the quantum of damages awarded. The High Court dismissed the appeal with costs and upheld the Magistrate’s ruling. It agreed that the letter was defamatory and that the damages awarded were justified, considering the extent of publication, the impact on the owner’s reputation in his community, and the lack of apology or investigation from the Body Corporate. The High Court found that the letter not only accused the owner of misconduct but also concluded his guilt without an investigation.
A Cautionary Note to Trustees
This judgment serves as a stern reminder to trustees about the gravity of their responsibilities and the importance of exercising their powers judiciously. Trustees must recognise the serious implications of their actions, particularly when dealing with accusations against residents.
Accusing a resident of misconduct is a serious matter that can have profound effects on their reputation and well-being. Trustees must remember that their words carry weight and should be grounded in fact, not speculation or hearsay. This case exemplifies how unfounded accusations, particularly when publicly circulated, can lead to significant legal and financial repercussions.
Before making any allegations, it is crucial that a fair and thorough investigation is conducted. This process must be impartial, giving the accused resident an opportunity to respond to the allegations. Jumping to conclusions without a proper investigation not only undermines the trust in the Body Corporate but also exposes it to legal challenges, as seen in this case.
Trustees must consciously avoid letting personal opinions or biases influence their decisions. Their duty is to act in the best interests of the entire Body Corporate, not to settle personal scores or advance individual agendas. This judgment underscores the perils of failing to remain impartial, particularly when personal conflicts of interest are involved.
The High Court’s ruling in this case is a clear message to trustees everywhere: exercise your powers responsibly and with due regard for the rights and reputations of residents. The role of a trustee is not just administrative; it is a position of trust and should be treated with the utmost respect and care.
Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, is a Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law.
If you encounter any issues with your scheme’s trustees, feel free to reach out to him at info@theadvisory.co.za for expert advice and assistance.
