Since the Promotion of Administrative Justice Act (PAJA) and the Promotion of Access to Information Act (PAIA) came into effect on 3 February 2000 and 9 March 2001, respectively, these acts have been pivotal tools to support and promote the rights enshrined in the Constitution. One could argue that these acts share a common purpose with acts like the Consumer Protection Act and the National Credit Act, namely the protection of everyday South Africans, increased transparency by those in power, and actual tools for South Africans to put their hands up and do something when their rights are being infringed upon. Now, whether the rights in question are capable of protection under the umbrella of these acts is another question. Although both PAIA and PAJA are used with numbing regularity, their applicability almost always requires a deeper delving into the facts.

This question was again front and centre in a judgment handed down by the Johannesburg High Court on 7 March 2024. The judgment involved Montrose Mews, a body corporate of a sectional title scheme, and one of its members, Ms Mokoka. Ms Mokoka had requested access to the body corporate’s financial information. The body corporate directed that Ms Mokoka should apply for access to the financial records under PAIA, but Ms Mokoka argued that the Sectional Title Management Act already grants her the necessary authority (as a member of the body corporate) to view these documents. Unable to reach a resolution, the matter was referred to CSOS (the Community Schemes Ombud Service). The role of CSOS, as most in the sectional title sphere will know, is to act as a dispute resolution mechanism to aid in managing the many sectional title schemes across the country. One of the advantages of the CSOS process, is that it closer resembles mediation than formal arbitration or even litigation – saving both members and body corporates a significant amount on legal costs. CSOS ruled that Ms Mokoka was correct in her assertion that she was entitled to the information under the Sectional Title Management Act. The body corporate, unhappy with the decision, took the CSOS adjudication on review to the Johannesburg High Court.   

The judgment shows that most of the ancillary issues were either resolved between the parties or became moot by the time the Court heard the parties’ arguments. The only clear question remaining before the Court was whether a member of a body corporate had to apply for access to financial information using PAIA or whether the access allowed under the Sectional Title Management Act was sufficient.

In determining the answer, Judge Wilson applied a multifaceted approach, as is often required when the applicability of PAIA and PAJA is concerned:

1. 1. Applicability of PAIA: The Court ruled that PAIA did not apply to this situation. Judge Wilson highlighted that PAIA is designed to facilitate access to information where no pre-existing legal right to that information exists. In contrast, the Sectional Titles Schemes Management Act provides a direct right of access to certain information for members of a body corporate.
      
      
   2. The Right to Financial Information: The judgment affirmed that members of a body corporate are entitled to inspect financial records as necessary to assess the body corporate’s financial situation. This right is derived directly from the Management Rules under the Sectional Titles Schemes Management Act.
      
      
   3. Limits on Access and Redaction: While members have a right to access financial information, this does not mean unrestricted access to all documents. The body corporate may redact information that is unnecessary for members to assess its financial situation, protecting confidential details.

This judgment reaffirms the principles of transparency and accountability in managing sectional titles. It emphasises members’ rights to be informed about their body corporate’s financial state while also acknowledging the need to protect sensitive information. The Montrose Mews judgment is a cornerstone in sectional title law, reaffirming the rights and obligations of body corporates and their members.

Read the full judgment here: https://www.saflii.org/za/cases/ZAGPJHC/2024/198.html