What is in the Trustees meetings minutes that they don't want us to see?

After spending over 6 months trying to see these minutes, I filed an complaint with CSOS,  Community Scheme Ombud Service, the body we all pay dues to every year.  As their website says:

CSOS was established in terms of the Community Schemes Ombud Service Act to regulate the conduct of parties within community schemes. 

The HOA responded with the most legalistic, restrictive and unreasonable conditions under which I, or any member, can access these minutes. This was my response to CSOS:

(Following my response is the response from the HOA which I responded to.)

25 July 2019

Anoesjka Van Den Heever

Case Management Officer-Western Cape Office

Community Schemes Ombud Service

8^th  Floor Constitution House, Adderley Street, Cape Town

Dear Ms van den Heever,

CSOS 0101/WC/18

In reply to the submission from the TIHOA, dated 12 July, 2019.

Extract from the TIHOA Constitution, stamped and therefore approved by the Knysna Municipality on 12 April, 2017.

 The TRUSTEES shall

18.11.1 ensure  that  minutes  are  taken  of  every  meeting  of  TRUSTEES,  although  not  necessarily

verbatim, which minutes shall be reduced to writing without undue delay after the  meeting has closed and shall then be certified correct by the CHAIRMAN of the meeting;

18.11.2 cause such minutes to be kept of all meetings of the TRUSTEES In a minute book of meetings

of TRUSTEES kept for that purpose;

18.11.3 keep all minute books of meetings of TRUSTEES in perpetuity;

18.11.4 on the written  application of any MEMBER, make all  minutes of their proceedings available for inspection by such MEMBER.

If we start on the basis of  good governance and good faith, the sharing of the minutes of the trustee’s meetings with members of the Thesen Islands Homeowners Association, should be a simple, uncontroversial matter.

But when you have a HOA that is accustomed to using member’s money (R355,000 in the last year) on numerous legal opinions that often appear to have the purpose of blurring or complicating issues to avoid accountability to members, it is not surprising to read their response starts with “ TIHOA has taken legal advice on its obligations to provide members with access to information…”   

When a member, without the benefit  of other people’s money to hire lawyers, has tried unsuccessfully for over 6 months to get copies of those minutes and has to resort to filing an application with CSOS, the suspicion is that the TIHOA does NOT want to share the minutes of the trustees meetings with members.

Then when a complaint is lodged with CSOS, the TIHOA, through their lawyers,  resorts to interpreting this sharing in the most legalistic, restrictive and obstructive manner possible. A reasonable person can only come to the conclusion that the TIHOA is not willing to deal with the members in an open manner.

The TIHOA response which you sent me can only be seen as an attempt to  deny all but the most determined members access to even a censored version of the minutes of the trustee’s meetings.

Firstly, for the HOA to cite the Constitution that is still waiting approval from the Knysna Municipality, is an attempt to muddy the water. The Constitution that is relevant to my request is the Constitution that is currently in place and has been approved by the Knysna Municipality. So the discussion of the new Constitution and how it should be interpreted is irrelevant.

Secondly, for the TIHOA to decide that “available for inspection” means that the inspection can only be carried out in an undefined “controlled fashion” at the TIHOA’s offices is completely unacceptable.

I point out that the big majority of the homes on Thesen Islands are owned by members whose primary residence is elsewhere with their Thesen Islands home being used for  holidays. To only allow these absentee owners/members to read the minutes of the trustees meetings at the TIHOA’s offices is an attempt to limit access to the minutes. I also point out that in the past, previous trustees posted the minutes of their meetings on the TIHOA website!

Thirdly, for the TIHOA to decide that the inspection does not include the right to copy or retain copies, but only the right to make notes is a yet another tactic to hide the minutes away from members. Why would they decide that you can make notes but you cannot make copies, if other than to make it as difficult as possible to get and share  information? 

Finally, the invoking of the POPI Act (which is still not law, according to my research))  is another attempt to hide the minutes from members. I quote from the said Act:

Section 11: Personal information may only be processed if — (c) processing complies with an obligation imposed by law on the responsible party; (d) processing protects the legitimate interests of the data subject; (e) processing is necessary for pursuing the legitimate interests of the responsible party or the third party (the other owners in the scheme) to whom the information is supplied.

As the minutes of the TIHOA trustees meetings are the “legitimate interests” of mine as a member of the TIHOA, and as well as of the rest of the members, and which according to the TIHOA Constitution must be shared with members, the trustees cannot hide them from members using the POPI Act.

Yet in taking the next step of hiding information from members, the TIHOA says in their response that it will  black out any  information that in its opinion is “confidential, contains personal information or is subject to legal professional privilege”. By not defining exactly what this means,  the TIHOA are wanting to have a very broad brush to paint over everything they do not wish to share.   My, and other members,  only recourse to read what they chose to black out would  be to lodge a request for information under the PAIA which will, as far as I can ascertain, requires a court action with associated heavy costs.  The TIHOA will then, almost certainly, defend this action using my and other member’s money.

This is how far the TIHOA and their lawyers, paid for by me and the other members, have taken this “right” away from the intention of the Constitution.

I therefore reject the response from the TIHOA who, in interpreting the rights of members in an unreasonable and restrictive manner, are violating our rights to have open access to the minutes of trustees meetings.  

I ask for arbitration.

Yours sincerely,

Kenneth Rutherford

Here is what I was responding to:

Access to information

TIHOA has taken legal advice on its obligation to provide members with access to information generally and more specifically in relation to other members or their property.

The following is noted in  this  regard:

In terms of clause 18.11 of TIHOA’s constitution:

“On the written application of any MEMBER the TRUSTEES shall make all minutes of the proceedings and/or meetings of the TIHOA available for inspection by such MEMBER.”

Members have additional rights to access information contemplated at clauses 27.3 and 29.2 of TIHOA’s current constitution.

Under the new Constitution which was adopted by members in January 2019 subject to the approval of the Knysna municipality which is still awaited, clause 27.3 of the current Constitution was amended to provide that access to the minutes shall be subject to “all necessary steps being taken by the trustees to ensure the due and appropriate protection of privacy of persons and confidentiality of subject matter in any such inspection process”.

Pending approval of the amended constitution by the municipality, the TIHOA have been advised to give effect to all requests to access information pursuant to the Constitution subject to all necessary steps being taken by the Trustees to ensure the due and appropriate protection of privacy of persons and confidentiality of subject matter in the inspection process. This is consistent with our law.

This right is not an unfettered right and one which extends to inspection only.  This is not a right to copy and/or retain copies of the records. It is a right to simply inspect. Notes may be made of what is inspected and the inspection will be carried out in a controlled fashion at TIHOA’s offices.

Our law recognises the right to privacy of information of all persons, including natural persons, unincorporated associations of persons (like TIHOA) and juristic persons.

In light of this, where the minutes contain information that is confidential, contains personal information of a person (including a juristic person) or is subject to legal professional privilege this information will be redacted from the minutes.

If access to the redacted information or any further information is required, then the Member/s concerned will be required to lodge a request for access to that information with the TIHOA in accordance with the Promotion of Access to Information Act, 2000. A copy of TIHOA’s PAIA manual will be circulated to Members shortly.

These measures have been put in place to ensure that access to information is handled correctly and that the relevant person’s right to privacy is protected.

Paul Burchell

General Manager