Trustees for the time being of the legacy body corporate vs. Bae estates and escapes 2022 (1) s.a. 424 (sca)

Published on July 21, 2022

Although a body corporate’s decision may not be reviewable under PAJA, it remained reviewable under common law. Although the trustees’ decision to prohibit Bae Estates (an estate agency) to operate within its scheme was not an administrative decision as envisaged in PAJA and therefore not reviewable in terms of PAJA, it remained reviewable under common law.

The decision was procedurally unfair and unreasonable, without any justifiable basis and thus irrational, in breach of the principles of natural justice and unjust. In our constitutional order, private entities were not enclaves of power, immune from the obligation to act fairly, lawfully, and reasonably.

Bea Estates held a well-founded belief and expectation that its continued ability to operate in the scheme and service of its clients would not be arbitrarily terminated by the trustees. Therefore, the duty placed upon the trustees to act fairly and in accordance with the tenets of natural justice came about consensually when Bea Estates was allowed to practice its occupation or profession in the scheme for over a year without interference.

Trustees of Body Corporates often regard themselves as being immune against review of their decisions by court. This matter highlights the difference between review under PAJA and common law. The requirements for administrative action to fall under PAJA are also discussed.

C.M. Weiss
Practicing Consultant