Can Sectional Title Trustees Pass Resolutions Through WhatsApp?
Can Sectional Title Trustees Pass Resolutions Through WhatsApp?
In the contemporary digital era, electronic communication platforms such as WhatsApp are frequently used even for formal decisions. This prompts a crucial question for trustees of sectional title schemes: Is it legally valid to pass resolutions via WhatsApp?
To address this, we must examine the legal context provided by the Sectional Titles Schemes Management Act of 2011 (STSMA), its accompanying regulations, and the Electronic Communications and Transactions Act of 2002 (ECT Act).
Legal Context for Trustee Resolutions
Trustee resolutions in sectional title schemes are regulated by the Prescribed Management Rules (PMRs) within the STSMA regulations. PMR 14(4)(b) allows trustees to adopt resolutions in writing through a majority vote by sending a notice to each trustee. This notice must include the resolution text and request trustees to express their agreement by signing and submitting it to the body corporate by a specified closing date.
Section 12(a) of the ECT Act indicates that "a requirement in law that a document or information must be in writing is met if the document or information is in the form of a data message." Therefore, a WhatsApp message qualifies as "in writing" under PMR 14(4). However, the definition of a "signature" in the context of electronic communication is more nuanced.
Electronic Signatures as Defined by the ECT Act
The ECT Act acknowledges two kinds of electronic signatures:
Standard Electronic Signature: This can be any electronic method that identifies the person and indicates their approval, such as a typed name, a scanned handwritten signature, or an explicit electronic affirmation like a "Yes" in a WhatsApp message.
Advanced Electronic Signature: This type is accredited by a recognised authority and is necessary for more stringent legal requirements.
According to Section 13(1)(a) of the ECT Act, a signature requirement for a data message is only fulfilled with an Advanced Electronic Signature. Given that PMR 14(4)(b) necessitates trustee signatures, it might seem that an Advanced Electronic Signature is required for WhatsApp resolutions. However, Section 13(3) of the ECT Act provides some flexibility: if the parties involved have not specified the type of signature, any reliable electronic signature that identifies the person and indicates their approval is acceptable.
Implementing WhatsApp for Trustee Resolutions
In line with the provisions of the STSMA and the ECT Act, trustees can use WhatsApp for resolutions if certain conditions are met:
Explicit Consent: Trustees must clearly state their approval, such as "Yes, I approve," followed by their name. This serves as a valid electronic signature under Section 13(3)(a).
Reliability: WhatsApp's timestamped conversation thread offers a reliable and documented method
for trustee resolutions, meeting the requirements of Section 13(3)(b).
Notification: Trustees must receive notice of the proposed resolution and the closing date for responses. Posting this information clearly in a dedicated WhatsApp group for trustee communications ensures that all trustees are notified and aware of deadlines.
Documentation: The WhatsApp conversation, including each trustee's response, must be documented and archived to maintain a clear, traceable record of the resolution process.
Steps to Ensure Compliance
To effectively utilise WhatsApp for trustee resolutions, adhere to these practical steps:
Create a Dedicated WhatsApp Group: Set up a group specifically for trustee communications to consolidate all discussions and decisions.
Post Resolutions Clearly: When a resolution is required, post the complete text and the closing date in the group.
Track Responses: Monitor and record each trustee’s response, ensuring they use the agreed-upon phrase as their signature.
Archive Conversations: Save or export the chat history for future reference to ensure a detailed record of the decision-making process.
Conclusion
Trustees of sectional title schemes can validly adopt written resolutions via WhatsApp if they comply with the requirements of PMR 14(4)(b) and the ECT Act. By following best practices for notification, explicit consent, and documentation, trustees can use WhatsApp effectively while ensuring legal compliance. This modern approach aligns with contemporary communication practices and enhances efficient decision-making within sectional title schemes.
At Solver Property Services, we support innovative solutions that facilitate better management and communication in community schemes. Embracing digital tools like WhatsApp for trustee resolutions is one way to achieve this, ensuring that decision-making processes are both efficient and legally sound.
Disclaimer: Kindly note that the above article is merely for information, and is not intended to be comprehensive nor to provide legal advice. Solver Property Services, its employees and agents can in no way be held liable for the accuracy or otherwise of the contents of this article, or for the consequences of any action taken or not taken by any person or organisation based on the contents herein.
For more information on this particular topic, please do not hesitate to contact the Solver Property Services team (010 822 2882). Solver Property Services have over well over 10 000 properties under our management in and around Johannesburg. We are your preferred managing agents. High-rise buildings, clusters, apartments, we manage it all.
