Power of Attorney vs Proxies in sectional title meetings

A recurring governance question in sectional title schemes is whether a member of a body corporate may be represented at a general meeting by way of a Power of Attorney (POA) instead of the prescribed proxy form, and whether such a POA would allow the holder to represent more than two members, thereby bypassing the statutory limitation on proxies. 

This issue often arises where an owner or trustee volunteers to “collect votes” or represent several neighbours who cannot attend a meeting. 

Although the question appears straightforward, it carries significant governance and legal risk. Allowing POAs to function as an alternative to proxies can invite vote-stacking, undermine the statutory two-proxy limit and expose the body corporate to challenges regarding the validity of meetings and resolutions.

Clarity is therefore essential for trustees and managing agents applying the STSMA’s representation framework. 

The issue sits at the intersection of common-law principles of agency and the statutory governance framework created by the Sectional Titles Schemes Management Act 8 of 2011 (“STSMA”) and its Prescribed Management Rules (“PMRs”). If approached incorrectly, schemes may adopt resolutions that later face challenge, delay or financial consequence. 

Section 6(5) of the STSMA provides that a member may be represented at a meeting of the body corporate in person or by proxy, subject to the express limitation that no person may act as a proxy for more than two members. This limit is an intentional safeguard designed to prevent any single individual from controlling or dominating the voting process. 

This provision is central to the analysis. It identifies the recognised forms of representation and imposes a numerical restriction to prevent concentration of voting power. 

The PMRs create a detailed and prescriptive system regulating how representation must occur, leaving little room for alternative mechanisms. 

They reinforce and operationalise section 6(5): 

• PMR 15(3)(c) requires that notice of a general meeting be accompanied by a proxy appointment form in the prescribed format. 
• PMR 19(4) recognises attendance “in person or by proxy” for quorum purposes. 
• PMR 20(5) requires proxy appointments to be substantially in the prescribed form and delivered timeously. 
• PMR 20(6) disqualifies managing agents, their employees and body corporate employees from acting as proxies. 
• PMR 20(7) regulates the exercise of votes where ownership is held jointly. 

The PMRs are comprehensive and prescriptive. They do not refer to POAs as an alternative mechanism for representation at meetings. 

The STSMA’s definition of “owner” includes persons who, by operation of law, represent owners who cannot act for themselves, such as trustees of insolvent estates, liquidators, executors or legally recognised representatives of minors or persons of unsound mind. These are statutory substitutions of capacity, not discretionary agency arrangements.  

• A POA authorises the attorney to act in the place of the principal, often with wide-ranging authority. 
• A proxy acts on behalf of the member for a specific meeting, within a narrowly defined statutory framework. 

• A POA may be broad or specific and may extend beyond meeting participation. 
• A proxy appointment is generally meeting-specific and agenda-bound, as contemplated by the prescribed proxy form. 

• A POA remains valid until revoked. 
• A proxy appointment is valid for a single meeting and any lawful adjournment. 

These distinctions are well recognised in general law. However, the STSMA deliberately narrows and regulates representation in the sectional title context. The separate statutory treatment of proxy appointments indicates that POAs are not contemplated as substitutes for meeting representation. 

The purpose and scope of a POA are significantly broader than those of a proxy. Determining whether a POA is valid, current, properly authorised or revoked is a legal assessment that trustees and managing agents are unlikely to be equipped or mandated to perform in the context of a general meeting. 

The STSMA and PMRs intentionally incorporate safeguards to prevent abuse, including: 

• Restrictions on the number of members one person may represent 
• Prohibitions on managing agents acting as proxies 
• Prescribed forms and timeframes designed to ensure transparency and certainty 

Allowing POAs to operate as a parallel system risks undermining these safeguards and introduces uncertainty into the decision-making process. In practical terms, a single individual could hold multiple POAs and effectively dominate voting, defeating the purpose of section 6(5). 

There is, however, a credible counter-argument. 

The STSMA does not expressly prohibit the use of POAs, nor does it define “proxy” in a manner that explicitly excludes other lawful forms of agency. Under South African common law, a POA is a recognised mechanism through which one person may authorise another to act on their behalf. 

On this basis, it may be argued that: 

• Section 6(5) is permissive rather than prohibitive, as it states that a member may be represented by proxy, without expressly stating that this is the only permissible form of representation 
• A POA is legally distinct from a proxy, as an attorney acts in the place of the principal rather than merely on behalf of the principal for a single meeting 
• Refusing to recognise a valid POA may unjustifiably limit an owner’s common-law right to appoint an agent 
• Juristic persons, which cannot attend meetings physically, often operate through standing authorities rather than meeting-specific proxies 

This reflects a genuine area of legal ambiguity arising from the STSMA’s silence on POAs. 

While arguable, this interpretation is not, in our view, the stronger one when the STSMA and PMRs are read holistically and purposively. 

The STSMA establishes a regulated governance framework in which representation at meetings is structured through detailed statutory rules. Where legislation prescribes a comprehensive mechanism for participation aimed at protecting collective interests, that mechanism is generally intended to be exhaustive. 

Focusing on the label attached to the authority elevates form over substance. Where a person attends a meeting, participates in deliberations and exercises voting rights on behalf of an owner, that person is, in substance, performing the function of a proxy. One individual arriving with ten POAs would effectively nullify the statutory two-proxy limit, achieving precisely the concentration of voting power that section 6(5) seeks to prevent. 

Accepting POAs as an unrestricted alternative therefore risks enabling the very vote-stacking and concentration of power that the statutory framework is designed to avoid. 

The STSMA and the PMRs establish a deliberate and structured framework governing representation and voting at meetings of a body corporate. That framework promotes owner participation, transparency and the integrity of collective decision-making. 

Although the STSMA does not expressly prohibit the use of POAs, it equally does not provide for them. In a regulatory scheme that carefully prescribes how representation must occur and imposes clear limitations to prevent abuse, the use of POAs, particularly to bypass proxy restrictions, introduces legal uncertainty and undermines statutory safeguards. 

Acceptance of POAs for meeting representation does not automatically render decisions invalid. However, it materially increases the risk that resolutions may be challenged and set aside, particularly where POA-based votes are decisive. 

Until clarity is provided by legislation, the courts or CSOS, trustees and managing agents should adopt a conservative, risk-averse approach, limiting representation to personal attendance or proxy appointments that comply strictly with the STSMA and the PMRs. This approach reduces challenge risk and preserves the enforceability and legitimacy of the body corporate’s decisions.