LIFE RIGHTS AGREEMENT - Summerley Court · LIFE RIGHTS AGREEMENT Seller/Developer Gemini Moon...

LIFE RIGHTS AGREEMENT

Seller/Developer

Gemini Moon

Gemini Moon Trading 325 (Pty) Ltd

Registration Number 2007/005792/2007

Suite D6, Westlake Square, 1 Westlake Drive, Tokai, 7945

Tel. (021) 701-2485 Fax (021) 701-3984

Managing Agent

Golden Elder Management Services cc

Registration Number 2010/060028/23 118 Main Road, Diep River, 7800

PO Box 26158 Hout Bay 7872

Tel (021) 712-1043 Fax 086 508-1283

Unit No.

Life Right No.

File Ref. No.

Contents Page

Part One Important Notes 3

Part Two Signature Page 4

Part Three Declaration 5

Part Four Important Details 8

Section A: Seller 8

Section B: Purchaser 8

Section C: Spouse / Third Party Occupant 8

Section D: Scheme, Address, Price, Deposit, Payment 9

Section E: Estimated Levies, Rentals, Cost & Charges 9

Section F: Beneficiary or Nominated Person to pay Refund to 10

Section G: Description of Property 11

Section H: Seller’s Attorneys’ Trust Account 11

Section I: Sales Agent 11

Section J: Managing Agent 11

Section K: Management Association’s Bank Account 12

Section L: Special Conditions 12

Part Five Terms & Conditions 13

Section I: Form, Definitions and Introduction 13

Section II: Conditionality 26

Section III: Purchase and Sale 28

Section IV: Legal Form and Nature 35

Section V: Services, Financial Obligations & Refund 43

Section VI: Management, Membership & Governance 47

Section VII: Termination 50

Section VIII: General 56

Part Six Annexure 1 - Services to be Provided

Annexure 2 - Disclosure Schedule

Annexure 3 - Conduct Rules, incorporating House Rules

Annexure 4 - Management Association Constitution

Annexure 5 - Pro forma Handover Form & Snag List

Annexure 6 – FICA Documentation

Annexure 7 – Client Investment Mandate

Annexure 8 – Architectural Plan

Annexure 9 – Standard Specification & Finishes

Annexure 10 – Right to Extend Sectional Plan

Annexure 11 – The Act & HDSFRP Regulations

Annexure 12 – Extract from the Consumer Protection Act

Life Rights Agreement Version 1.1 Revision Date 13 July 2012

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Part One - Important Notes

PLEASE READ CAREFULLY

1. The Purchaser should not sign this Agreement unless:

- the Purchaser is fluent in and understands the English language; and

- the Purchaser has read the content of each and every page; and

- the Purchaser understands the meaning and significance of all the Clauses; and

- the Purchaser fully understands his rights and obligations arising out of this Agreement and unconditionally agrees to be bound

thereby; and

- the Purchaser is satisfied that all costs, fees, imposts, taxes, duties, levies and charges have been explained to him; and

- the Purchaser fully understands the financial implications, interest charges, fees and costs pursuant to the Purchaser committing

himself to the purchase contemplated and provided for in this Agreement and, to the extent applicable, has sufficient and/or

regular income and/or other financial means or resources to service any loan, interest and/or other fees and costs

contemplated in the National Credit Act; and

- all blank spaces have been correctly filled in or otherwise deleted.

2. The Purchaser is entitled and was encouraged to obtain independent legal advice on this Agreement prior to signature hereof.

3. Each page of this Agreement, including Annexures, should be initialled at the bottom right hand corner and signed in full where so

directed. Failure to do so will not invalidate the Agreement as it is merely required as an evidentiary tool to show that the Parties

have both read each and every page of the Agreement.

4. The Consumer Protection Act, if applicable to the transaction provided for and recorded in this Agreement, provides amongst

others that: (i) suppliers cannot unfairly limit access to goods and services to a consumer, or class of consumers based on any

ground of discrimination; (ii) suppliers cannot unfairly discriminate by prioritising any consumer group over others when marketing,

selling or distributing their goods and services; (iii) suppliers cannot vary the quality of their goods and services in a discriminatory

manner; (iv) consumers have the right to query the inferior quality of goods and services; (v) suppliers cannot unfairly charge

different prices for the same goods and services to different consumers based on discrimination; (vi) consumers should be treated

equally, irrespective of gender, race, socio-economic status or geographic location; (vii) a consumer has the right to cancel

contracts which arose as a result of direct marketing, within the cooling off period of five business days; (viii) a consumer has the

right to choose or examine goods, even after purchase and delivery; (ix) information must be in plain and understandable

language; (x) prices of goods and services must be disclosed; (xi) a consumer has the right to: protection against unconscionable

conduct, protection against false, misleading or deceptive representations, protection against fraudulent schemes and offers,

assume that suppliers are entitled to sell goods, protection against unfair, unreasonable or unjust contract terms, obtain notice for

certain terms and conditions, obtain free copies of agreements or contracts, refuse prohibited transactions, agreements, terms or

conditions, approach the court to ensure fair and just conduct and terms and conditions and safe, good quality goods, an implied

warranty of quality; (xii) an agreement: being in plain language, free of any unfair, unjust or unreasonable contract terms, giving

adequate and timely notice to consumers of certain types of terms, being free of any terms prohibited and not attempting to

negate warranties provided to consumers in the Consumer Protection Act.

5. As all the terms, conditions and/or covenants of this Agreement are not intended to be in contravention or violation of the

Consumer Protection Act, all terms, provisions and/or covenants must be treated as being qualified, if necessary and applicable, to

ensure that the provisions of the Consumer Protection Act are complied with.

6. The Alienation of Land Act, 1981 (Act No. 68 of 1981), if applicable to the transaction provided for and recorded in this Agreement,

provides amongst others that a purchaser may, within 5 (five) business days after signature by him of an Offer to Purchase or Deed

of Alienation, revoke or cancel such Offer to Purchase or Deed of Alienation, by written notice to the seller or its agent, notifying him

or it of the purchaser’s desire to cancel the Offer to Purchase or Deed of Alienation. This cooling-off or statutory right to cancel a

contract only applies to purchasers of property not exceeding R250,000 (two hundred and fifty thousand Rand) and where such

property is intended to be used for residential purposes and, in this instance, is an interest as defined in terms of the Act. This right to

cancel only applies to natural persons and excludes trusts, companies, close corporations and like corporate entities.

7. There are no other obligations on the Seller other than as set out in this Agreement. Any representation, statement, guarantee

and/or promise made by any person, including but not limited to the Agent or Managing Agent, to the Purchaser, or contained in

any brochure, advertising or marketing material, which is not contained in this Agreement, will not be binding on the Seller nor will it

be a term of this Agreement. This Agreement will take precedence over any and all brochures, advertising or marketing material.


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Part Two - Signature Page

OFFER TO PURCHASE

1. The Purchaser, by his or her signature hereto, hereby offers to purchase the Life Right (being the

right of occupation as defined in Part Five, Section I) for and in respect of the Unit (detailed in

Part Four, Section D) from the Seller, upon the terms and conditions set out herein.

2. This Offer to Purchase (as set out herein) shall remain open for acceptance by the Seller and shall

be irrevocable for a period of 30 (thirty) calendar days from the date so signed by the Purchaser,

or, until declined in writing by the Seller, whichever is earlier.

Signed at on this the day of

1. Witness

The Purchaser/s

2. Witness

ACCEPTANCE

The Seller, by its duly authorised representative’s signature hereto, hereby accepts the Purchaser’s Offer

to Purchase the Life Right set out herein, bringing about a valid and binding agreement enforceable by

and between the Parties upon the terms and conditions set out in this Agreement.


1. Witness

The Seller

2. Witness

CONSENTING SPOUSE

The Purchaser’s undersigned Spouse, to the extent such Spouse is not a joint Purchaser, hereby confirms

having read and acquainted herself or himself with and understands the content of this Agreement

and by signature hereto, consents (in terms of the relevant provisions of the Matrimonial Property Act,

1984 or in terms of the laws of a foreign country under which he or she was married) to the said spouse

concluding this Agreement as a Party hereto and accepts the benefits hereof and agrees to be bound

by the obligations herein contained.


1. Witness Consenting Spouse

Full Names

2. Witness

sign in full

sign in full

sign in full

sign in full

sign in full

sign in full

sign in full

sign in full

sign in full


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Part Three - Declaration

The Purchaser hereby confirms:

1. this Agreement is in the official language of his or her choice; and

2. having read the content of each and every page of this Agreement and, in particular,

the Important Notes; and

3. that the Purchaser fully understands and appreciates the meaning and significance of all

the Clauses, terms, conditions, provisions and/or covenants, especially the rights and

obligations arising out of this Agreement and unconditionally agrees to be bound hereby;

and

4. and declares that the full extent of the Purchaser’s obligations and rights herein were and

have been explained to the Purchaser and that he or she has been given the opportunity

to obtain independent legal advice and make the necessary enquiries in respect of the

Life Right, the Unit and all material aspects pertaining thereto and that the Purchaser

understands the legal nature and effect thereof and of this Agreement; and

5. that the Purchaser is satisfied that all costs, fees, imposts, taxes, levies, charges and/or

commissions have been disclosed and explained to him or her; and

6. that the Purchaser fully understands the financial implications and costs of committing

himself or herself as a consequence of entering into this Agreement and, to the extent

applicable, has sufficient or regular income or other financial means or resources to

service any Levy, loan, interest or other fees and costs contemplated in this Agreement

and/or in the National Credit Act; and

7. that all blank spaces have been correctly filled in or otherwise deleted; and

8. that no undue pressure or inducement was brought to bear or made in agreeing to the

terms, conditions, provisions and/or covenants set out in or in signing this Agreement; and

9. that none of the terms, conditions, provisions and/or covenants set out in this Agreement

are unfair, unreasonable or unjust; and

10. that he or she has been informed that, in terms of Section 16, read with Section 20(2)(a),

of the Consumer Protection Act, in the event an agreement has been concluded as a

result of direct marketing (as defined in the Consumer Protection Act), the Purchaser has

the right to rescind a transaction, without reason or penalty, within 5 (five) Business Days

after the later of: (i) the transaction or agreement being signed; or (ii) the Life Rights

having been delivered to the Purchaser; and

11. that this Agreement has NOT been concluded as a result of direct marketing; and

12. that he or she is aware that, in terms of Section 29A, read with Section 2(2A), of the

Alienation of Land Act, 1981, he or she will be entitled to revoke this Offer to Purchase

within 5 (five) Business Days of his or her signature hereto, by giving the Seller or the Agent

written notification thereof, provided the transaction herein set out is one contemplated in

the aforesaid Alienation of Land Act, 1981; and


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13. that, as the Purchase Price exceeds the sum of R250,000 (two hundred and fifty thousand

Rand), the cooling off right or right of revocation referred to in Clause 12 above, does NOT

apply and, as such, this Agreement cannot be revoked thereby; and

14. that the Seller made the following written information and/or documents available to the

Purchaser for inspection prior to signing this Agreement as contemplated and provided

for in terms of Regulation 5 of the HDSFRP Regulations:

(a) information as contemplated in Regulation 3, namely:

- the advertisement relating to the alienation of the Life Right contained —

(i) information describing the type or types of accommodation concerned,

being a description adequate enough to disclose its true nature; and

(ii) a statement of the legal basis upon which the housing interest is to be

alienated; and

(iii) a statement that the Scheme is not erected and when it will be erected;

and

(iv) the physical address of the Scheme; and

(v) a statement that the Scheme is a housing development scheme as

contemplated by the Act;

- as a life right limits the occupation to the duration of the life of the Purchaser or

any other person mentioned in the contract is considered to be a right of

occupation and will and does comply with the provisions as defined in the Act;

(b) the draft site development plan, floor lay-out and in the event of the building not

being completed, a copy of the draft building plans in the process of being or which

have been approved, as the case may be, by the Local Authority;

(c) a copy of the complete contract to be signed;

(d) a copy of the then in force management agreement;

(e) the floor area in square metres of the Unit;

(f) a statement that the housing interest will NOT convey ownership rights capable of

registration in terms of the Deeds Registry Act, 1937 (Act No. 47 of 1937), or the

Sectional Titles Act, and a further statement as to the form of security being provided

by the Seller to ensure utilisation of the housing interest by the Purchaser, namely the

endorsement of the title deeds in terms of the Act and a description of the right in and

to the housing interest, and to whom such rights devolve upon the death of the

Purchaser who is a natural person, or the dissolution of the Purchaser, who is a juristic

person, as the case may be;

(g) a statement that the Land relating to the Scheme is held under ownership by the

Seller;

(h) a description of the Land relating to the relevant housing interest;

(i) a statement that the Land was not being held by the Seller by virtue of a lease, but

ownership and how long the Seller has owned the Land;


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(j) a statement that the Seller is the owner;

(k) a statement that the Seller has NO direct or indirect interest in the Managing Agent or

Manager;

(l) a statement that the Land is encumbered by a mortgage bond, the name and

address of the person in favour of whom the mortgage bond is registered at the time

the contract is concluded as well as the amount or amounts of such bond or bonds,

and when the capital and interest due in terms of the mortgage bond is payable;

(m) the amount and nature of the Purchase Price or consideration;

(n) the annual rate at which interest, if any, is to be paid on any balance in respect of the

Purchase Price or consideration;

(o) the amount, or the method of determining the amount, of each instalment which

would be payable under the contract in reduction or settlement of the relevant

consideration;

(p) the due date, or the method of determining the due date, of each such instalment or

payment;

(q) an inventory of the minimum movables, if any, which will be available for use by the

Purchaser;

(r) a detailed projection of the estimated income and expenditure in respect of the

operation and maintenance of the Scheme for one year in advance including a

reasonable provision for future maintenance and repairs, certified as adequate by

both the Seller and the Managing Agent;

(s) a statement as to the age of the accommodation or Unit;

(t) the Conduct Rules referred to in Regulation 9(1)(o);

(u) particulars of other housing development schemes in which the Seller was directly

or indirectly involved in;

(v) a statement that all residential accommodation on the Land is being utilised for the

purposes of the Scheme; and

(w) as the transaction concerns an alienation of a right of occupation as defined in the

Act—

(i) a statement of the proviso according to which the Purchaser may occupy the

housing interest and the period of such occupation; and

(ii) a statement concerning the percentage of the Purchase Price, if any, which

will be repaid to the Purchaser or any other person or to the estate of the

Purchaser or any such other person when the right of occupation expires.

1. Witness

The Purchaser

2. Witness

sign in full

sign in full sign in full


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Part Four - Important Details

A: THE SELLER

Gemini Moon Trading 325 (Proprietary) Limited

Company Registration Number : 2007/005792/07

Physical Address & Domicilium : Suite D6, Westlake Square, 1 Westlake Drive, Tokai, 7945

Postal Address : PO Box 30797 Tokai, 7966

Telephone : (021) 701-2485

Facsimile : (021) 701-3984

E-mail Address : [email protected]

Contact Person : Christopher Hyland herein represented by Christopher Eric Hyland, duly authorised by a resolution of the Board of Directors

B: THE PURCHASER / S * *delete and/or complete whichever ir or

is not applicable C: SPOUSE / THIRD PARTY OCCUPANT*

Surname

First Name/s

Identity Number

Income Tax Number

Physical Address &

Domicilium Postal Code

Postal Address Postal Code

Telephone (Home)

Telephone (Business)

Cellular

Facsimile

E-mail Address

Place where & when

Marital Status

In/out of community/By ANC


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D: SCHEME, UNIT (IN RESPECT OF LIFE RIGHT), ADDRESS, PRICE, DEPOSIT, PAYMENT DETAILS

Scheme Name

The Summerley Court Retirement

Scheme

Life Right Number

Unit Number

Approximate Extent

Land / Physical

Address

Erf 65425, Cape Town at Kenilworth, commonly referred

to 305 Main Road, Kenilworth, 7800, Cape Town

Floor

Parking Bay

Additional Parking Bay

Storage Area

Exclusive Use Area

Approximate Occupation Date

Purchase Price Details

Total Purchase Price

Numerals

R

Words

Deposit

Numerals

Date due by

Words

Balance due on Occupation

Date

Numerals

R

Words

The Purchaser elects to secure the FULL Purchase Price through Deposit Advantage

Notes: (i) The Purchaser must pay the Deposit into the trust account of the Seller’s Attorneys, the details

of which are set out below, and thereafter fax a copy of the deposit slip to the said Attorneys on (021)

673-4701, marked for the attention of Allan White/Shelley Crowie or email [email protected] with a

PDF copy of the deposit slip and clearly show the File Reference Number. (ii) The balance of the

Purchase Price is to be paid in accordance with the provisions of Clauses 6.3 and 6.4 of this Agreement.

(iii) Alternatively, the Purchaser can secure the full Purchase Price with Deposit Advantage, in which

event the applicable method of securing payment must be indicated.

E: ESTIMATED LEVIES, RENTALS, COSTS & CHARGES

Type of Service Required: √ TICK, X CROSS OR INDICATE WHICHEVER SERVICES PACKAGE APPLICABLE

Apartment

Assisted Care

Health Care

Gold

Diamond

Platinum

mailto:[email protected]


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Estimated Initial Monthly Levies for the Unit

First Year

From

Until

Amount

Second Year

From

Until

Amount

Third Year

From

Until

Amount

Estimated Initial Monthly Rentals for:

First Year

Second Year

Third Year

Parking Bay

Additional Parking Bay

Storage Area

Exclusive Use Area

Estimated Initial Costs & Charges for

First Year

Second Year

Third Year

Assisted Care Services

Health Care Services

F: DETAILS OF BENEFICIARY OR NOMINATED PARTY TO WHOM REFUND IS PAID

Surname

First Names/s

Identity Number

Physical Address:

Postal Address:

Telephone Number

Fax Number:

E-mail:

Bank

Branch

Branch Code

Swift Code

Account Name

Account Number


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G: DESCRIPTION OF THE LAND

Erf Number

65425 Cape Town, at Kenilworth

Street Address

305 Main Road, Kenilworth, 7700, Cape Town, Western Cape

Title Deed Number

T40336/2007

Size of Scheme’s Erf

5,040m²

Registered Owner

Gemini Moon Trading 325 (Proprietary) Limited

Registered Bond Holder

Standard Bank of South Africa Limited

Bond Amount

R15,250,000.00

Bond Repayment Date

31 May 2017

Magisterial District

Wynberg

H: SELLER’S ATTORNEYS’ TRUST ACCOUNT

Practice Name: Smith Tabata Buchanan Boyes Inc

Contact Person: Allan White/Shelley Crowie

Business Address: Buchanan Chambers, Warwick Street, Claremont, 7700

Telephone Number: 021 673-4700

Fax Number: 021 673- 4701

E-mail: [email protected]

Bank: Absa Limited

Branch: Claremont

Branch Code:

632005

Account Name: Smith Tabata Buchanan Boyes

Account Number: 4035 704 865

File Tracking & Reference Number

PLEASE QUOTE THIS REFERENCE NUMBER

WHEN DEPOSITING FUNDS AND MAKING

PAYMENT

I: SALES AGENT

Name of Agency

Name of Agent

Commission

Numerals R

Words

J: MANAGING AGENT

Name

Golden Elder Management Services cc

Registration Number 2010/060028/23

Address 118 Main Road, Diep River, 7800

E-mail [email protected] Contact Person John White

Telephone Number (021) 712-1043 Fax Number 086 508-1283




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K: MANAGEMENT ASSOCIATION’S BANK ACCOUNK

Bank TBA

Branch TBA

Branch Code TBA

Account Name TBA

Account Number TBA

Tracking Number TBA

PLEASE QUOTE THIS REFERENCE NUMBER

WHEN DEPOSITING FUNDS AND MAKING

PAYMENT

L: SPECIAL CONDITIONS


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Part Five – Terms and Conditions

I : FORM, DEFINITIONS AND INTRODUCTION

1. NATURE AND FORM OF AGREEMENT

1.1 Composition of the Agreement

This Agreement comprises 6 (six) principal Parts, namely:

1.1.1 Part One, which sets out Important Notes for the Purchaser to read before signing

and entering into this Agreement; and

1.1.2 Part Two, which is referred to as the “Signature Page,” provides for:

1.1.2.1 the Offer to Purchase made by the Purchaser to the Seller to acquire the Life

Right;

1.1.2.2 the Acceptance by the Seller of the Offer to Purchase; and

1.1.2.3 a Consenting Spouse to acknowledge that she/he has acquainted

herself/himself as to the content the Agreement and consents to her/his

spouse entering into the Agreement as Purchaser pursuant to amongst others

Section 15(2) of the Matrimonial Property Act, 1984; and

1.1.3 Part Three, which is a Declaration made by the Seller confirming and declaring

that he/she has confirmed, amongst others, the important consequences of

entering into this Agreement; and

1.1.4 Part Four, which makes provision under:

1.1.4.1 Section A for the Seller’s details; and

1.1.4.2 Section B for the Purchaser’s details; and

1.1.4.3 Section C for the Spouse’s and/or Second Occupant’s details; and

1.1.4.4 Section D for details as to the Life Right, the Unit, the Purchase Price, the

Deposit and Payment, including Deposit Advantage as an alternative method

of securing payment; and

1.1.4.5 Section E for the estimated Levies to be paid; and

1.1.4.6 Section F for the Seller’s Nominated Person and bank account to whom the

Refund is to be paid, if applicable; and

1.1.4.7 Section G for a description of the Scheme and the Land upon which the

Scheme is located; and

1.1.4.8 Section H for the details of and to whom the Purchaser is required to pay the

Deposit and Balance of the Purchase Price; and

1.1.4.9 Section I for the Agent’s details and the commission to be paid; and

1.1.4.10 Section J for the Managing Agent’s details; and


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1.1.4.11 Section K for the details of the Management Association’s Bank Account,

being the bank account into which all Levies, Rentals, Costs, Charges and

other monies due to the Managing Agent and/or the Management

Association are to be paid by the Purchaser; and

1.1.4.12 Section L for any additional and/or special bespoke conditions that may

apply to the Purchaser and the transaction contemplated and provided for

herein; and

1.1.5 Part Five, which sets out the general terms and conditions which apply to this

Agreement; and

1.1.6 Part Six, which comprises the various Annexures and Schedules to the

Agreement, namely:

1.1.6.1 Annexure 1, which sets out the various services to be provided; and

1.1.6.2 Annexure 2, which is the Disclosure Schedule required in terms of the Act and

the HDSFRP Regulations disclosing the prescribed information; and

1.1.6.3 Annexure 3 comprises the initial Conduct Rules and House Rules by which

Occupiers are to conduct themselves on the Land and in their Units and

towards other Occupiers;

1.1.6.4 Annexure 4 is the initial Management Association Constitution created and

prescribed in terms of the Act; and

1.1.6.5 Annexure 5 is the sample Handover Form and Snag List which the Purchaser is

required to complete and sign when taking occupation of the Unit; and

1.1.6.6 Annexure 6 details the FICA Documentation the Purchaser is required to

provide to the Seller’s Attorney and the Agent in terms of FICA; and

1.1.6.7 Annexure 7 is a mandate given by the Purchaser to the Seller’s Attorneys to

invest the proceeds of the Deposit whilst holding such monies in trust; and

1.1.6.8 Annexure 8 is the Architectural Plan of the Scheme and the Unit; and

1.1.6.9 Annexure 9 is the Standard Specifications & Finishes applicable to the Unit

pertaining to the Life Right; and

1.1.6.10 Annexure 10 is the Right to Extend Sectional Plan detailing the possible

extension of the Scheme; and

1.1.6.11 Annexure 11 is a copy of the Act and the HDSFRP Regulations; and

1.1.6.12 Annexure 12, contains important extracts from the Consumer Protection Act,

highlighting certain of the Purchaser’s rights thereunder,

which, when signed by the Parties will be deemed to be considered one and the

same document and agreement.

1.2 Offer to Purchase incorporating a Deed of Sale

1.2.1 This Agreement is an Offer to Purchase, made by the Purchaser to the Seller, to

acquire the Life Rights, for the Purchase Price and upon the terms and conditions set

out in this Agreement.


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1.2.2 The Offer to Purchase will remain open for acceptance by the Seller and will be

irrevocable for a period of 30 (thirty) calendar days from the date on which the

Purchaser signed this Agreement, or until declined in writing by the Seller, whichever is

earlier. For the avoidance of doubt, the Purchaser may not withdraw the Offer to

Purchase for a period of 30 (thirty) calendar days from the date on which the

Purchaser signed this Agreement, giving the Seller 30 (thirty) calendar days within

which to accept or reject the Purchaser’s Offer to Purchase. The Seller has the

Discretion whether or not to accept or reject the Purchaser’s Offer to Purchase.

1.2.3 Upon acceptance and signature by the Seller of the Purchaser’s Offer to Purchase

(set out in this Agreement), a valid and binding sale agreement will come into force

by and between the Parties upon the terms and conditions set out in this Agreement.

2. DEFINITIONS AND INTERPRETATION

2.1 For the purpose of this Agreement, the following words and/or expressions will, unless

the context clearly indicates otherwise, have the meanings ascribed to them below:

2.1.1 “ab initio” is a Latin term meaning “from the beginning”;

2.1.2 “Act” means the Housing Development Schemes for Retired Persons Act, 1988

(Act No. 65 of 1988) and, includes, where and to the extent applicable, the

HDSFRP Regulations;

2.1.3 “Agent” means the estate agent, registered as such in terms of the Estate Agents

Act, 1976 (Act No. 112 of 1976), or such other agent or facilitator approved of by

the Seller, in writing, and as indicated in Part Four, Section I;

2.1.4 “Agreement” or “this Agreement” or “this Document” or “hereto” or “herein” or

“hereunder” or “hereby” or “herein contained” or words of similar meaning

means, initially, the Purchaser’s Offer to Purchase the Life Right, and when and if

such Offer to Purchase is accepted by the Seller, a Deed of Sale, being an

agreement by and between the Parties, as contained in this Document, including

all Annexures, Appendices and Schedules attached to and forming part of this

Document, and any addition, amendment, renewal, extension, further renewal

and/or further extension, as the case may be;

2.1.5 “Architect” means the architect appointed by the Seller to design the

Development and who is defined and registered as such in terms of the Architects

Act, 1970 (Act No. 35 of 1970), initially being Architects Pike & Reilly of 3 Roukoop

Road, Rondebosch, Western Cape;

2.1.6 “Architectural Plan” means the draft architectural drawings and plan of the Land

and the Buildings detailing the Scheme and the Unit, annexed hereto as

Annexure 8 of Part Six;

2.1.7 “Auditors” means the Seller’s Auditor from time to time, being a registered auditor

as defined and registered as such in terms of the Auditing Professions Act, 2005

(Act No. 26 of 2005), initially being PKF (Cpt) Incorporated of 21st Floor, 2 Long

Street, Cape Town, 8001;

2.1.8 “the Balance of the Purchase Price” means the Purchase Price to be paid by the

Purchaser to the Seller, less the Deposit (if any) paid by the Purchaser to and

received by the Seller;

2.1.9 “Balance of Purchase Price Guarantee” means the guarantee, in writing, to be

obtained by the Purchaser to secure the Balance of the Purchase Price as

contemplated and provided for herein;


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2.1.10 “Beneficiary” or “Nominated Person” means the person nominated by the

Purchaser in Part Four, Section F to whom the Refund will be paid out to if such

person is different from the Purchaser or the survivor of the Purchaser in the case

of joint Purchasers;

2.1.11 “Building” means every building and/or structure built and/or constructed,

including to be built and/or to be constructed, on the Land, save for the area

demarcated as the Garage Area on the Right to Extend Sectional Plan or

Architectural Plan, as the case may be, for so long as the garage and filling

station built thereon continues to be operated as a garage and filling station;

2.1.12 “Common Property” means the whole of the Land, the Building and all

improvements thereon, including any access and egress road and/or servitudinal

right of access or traversing rights, but excluding all Units and the Garage Area for

so long as the garage and filling station built thereon continues to be operated as

a garage and filling station;

2.1.13 “Common Services” means all bulk services, including without limitation, water,

sewerage, electricity, drainage, telecommunications, refuse removal, fire-fighting,

security and all such other utilities and amenities serving the Common Property

and the Land generally;

2.1.14 “Communal Facilities” means those facilities common to all Occupiers, including

but not limited to the reception, the administration office, the management

office, the kitchen, the dining room, the entertainment areas, the laundry room,

the medical office and consulting room, the lifts, the security office, the power

supply room and the refuse room;

2.1.15 “Conditions Precedent” means the suspensive conditions set out in Clause 4 of

Part Five, Section II;

2.1.16 “Conduct Rules” means the Rules regarding the use and enjoyment of the Unit,

the Communal Facilities and the Common Property and the manner in which the

Members and Occupiers are to conduct themselves in the use and enjoyment

thereof and, include the House Rules, a copy of which initial Conduct Rules is

attached hereto marked Annexure 3 in Part Six;

2.1.17 “Consumer Protection Act” means the Consumer Protection Act, 2008 (Act No. 68

of 2008) and includes, where applicable, such Regulations promulgated

thereunder;

2.1.18 “Client Investment Mandate” means the mandate granted by the Purchaser to

the Seller’s Attorneys to invest the Deposit, a sample copy of which is attached

marked Annexure 7 of Part Six;

2.1.19 “the Deposit” means the deposit required to be made by the Purchaser as

provided for in Clause 5.1 of Part Five, Section III;

2.1.20 “Deposit Advantage Guarantee” means a guarantee to be issued by Lombard

Insurance Company Limited, company registration number 1990/001253/06, of 3rd

Floor, Sanclare Building, 21 Dreyer Street, Claremont, 7700, for the full Purchase

Price or part thereof, as the case may be;

2.1.21 “Discretion” means, in relation to a Party, the sole, absolute and unfettered

discretion of that Party, provided such discretion is exercised in a reasonable and

not a capricious manner;


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2.1.22 “Exchange Control Regulations” means the Exchange Control Regulations, 1961

promulgated under and in terms of the Currency Exchanges Act, 1933 (Act No. 9

of 1933), together with such Regulations, Orders and Rules issued pursuant to and

in accordance therewith;

2.1.23 “FICA” means the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001);

2.1.24 “the FICA Documentation” means the documentation stipulated in Annexure 6, of

Part Six;

2.1.25 “Garage Area” means the area of the Land upon which the garage and filling

station is located as demarcated on the Right to Extend Sectional Plan or

Architectural Plan, as the case may be;

2.1.26 “Health Care Centre” means the facility located on the Common Property

designed and managed to provide medical care support services and

designated as such in the Right to Extend Sectional Plan or Architectural Plan, as

the case may be;

2.1.27 “HDSFRP Regulations” means the Regulations promulgated under and by virtue of

section 11 of the Act, including but not limited to the Regulations published in

Government Notice E1351 in Government Gazette 11979 of 30 June 1989 as

amended by GN R2091 in Government Gazette 12717 of 31 August 1990 and by

GN R2092;

2.1.28 “Joint Purchaser” means where there is more than 1 (one) Purchaser to this

Agreement;

2.1.29 “Land” means Erf 65425 Cape Town at Kenilworth, commonly referred to as 305

Main Road, Kenilworth, Western Cape, upon which the Development and the

Scheme is to be and/or has been developed by the Developer;

2.1.30 “Laws” means the common law, Legislation and all judicial decisions and other

notifications or similar directives made pursuant thereto that have the force of

law, whether issued by an executive, a legislative, provincial, local, judicial or

administrative entity in South Africa;

2.1.31 “Legislation” means all applicable statutes, statutory instruments, bye-laws,

regulations, orders, rules, executive orders and other secondary, provincial or

local legislation, treaties, directives and codes of practice having the force of law

in South Africa;

2.1.32 “Levy” or “Levies” means the levies to be levied from time to time by the

Management Association, in accordance with the Management Association

Constitution, for essentially funding and conducting the affairs of the Scheme

and providing the Services, with the initial estimated annual Levy, exclusive of

VAT, as set out in Part Four, Section E;

2.1.33 “Life Right” means the right to occupy the Unit for the duration of the lifetime of

the Purchaser, including but not limited to the use and enjoyment thereof and the

Communal Facilities, subject at all times to the provisions of this Agreement, the

Management Association Constitution and/or the Conduct Rules, as the case

may be, which is to be referenced in the Register with the reference assigned to it

in Part Four, Section D;

2.1.34 “Local Authority” means the metropolitan municipality established in terms of the

Local Government Municipal Structures Act, 1998 (Act No. 117 of 1998), published

in Provincial Notice No. 479 of 2000 and/or the Provincial Government of the

Western Cape, as the case may be;


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2.1.35 “LUPO” means the Land Use Planning Ordinance (Cape), No. 15 of 1985;

2.1.36 “Management Association” means the management association to be

constituted in terms of and in accordance with the HDSFRP Regulations for the

control, administration and management of the Scheme, the Unit, the Common

Property, the Communal Facilities and the Services, as well as the enforcement of

the Conduct Rules as set out in the Act, HDSFRP Regulations, the Management

Association Constitution and/or the Conduct Rules, as the case may be;

2.1.37 “Management Association Constitution” means the Constitution attached hereto

marked Annexure 4 of Part Six;

2.1.38 “Managing Agent” means, initially the Managing Agent demarcated as such in

Part Four, Section J or such other manager as may replace or substitute the initial

manager from time to time, if and to the extent applicable;

2.1.39 “Member” means a member of the Management Association, being the

Purchaser by virtue of this Agreement, the Act, the HDSFRP Regulations, the


may be;

2.1.40 “the National Credit Act” means the National Credit Act, 2005 (Act 34 of 2005),

including all regulations and notices promulgated and/or published thereunder;

2.1.41 “Occupation Date” means the earlier of:

2.1.41.1 the date upon which the Unit is handed over to the Purchaser; or

2.1.41.2 the date upon which the Architect or Quantity Surveyor issues the first

certificate contemplated in Section 6(1) of the Act stating that the Scheme

has been erected substantially in accordance with the approved building

plans;

2.1.42 “Occupier” or “Occupant” means, collectively or individually, as the context may

determine, any person entitled to occupy the Unit pursuant to this Agreement,

being:

2.1.42.1 the Purchaser, that is to the extent the Purchaser occupies the Unit himself

or herself, and includes a Joint Purchaser or any one of them; or

2.1.42.2 the Purchaser’s Spouse, that is to the extent the Purchaser is married as at

the Signature Date and such spouse is not a Joint Purchaser, but is

indicated separately as the Spouse in Part Four, Section C; or

2.1.42.3 the Third Party Occupant, that is to the extent the Purchaser does not

himself or herself occupy the Unit, but has nominated and designated

another person in his or her place and stead and such person is clearly

detailed in Part Four Section C as the Third Party Occupant; or

2.1.42.4 a subsequent spouse or civil life partner, as defined in the Civil Union Act,

2006 (Act No. 17 of 2006), of the Purchaser or Third Party Occupant, as the

case may be; or

2.1.42.5 a temporary guest or visitor of the Purchaser, the Purchaser’s Spouse or

Third Party Occupant, as the case may be, who has use of the Unit on a

temporary basis;


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2.1.43 “the Parties” means the Seller and the Purchaser, collectively or individually, as the

context may require or determine and, where applicable, the Consenting Spouse;

2.1.44 “the Prime Rate” means the Prime Rate of interest publicly quoted and charged

by the Seller’s bank from time to time – a certificate signed and issued by any

manager of the Seller’s bank as to the Prime Rate and the dates of any change

thereof will be prima facie proof of the facts stated therein, meaning that in the

absence of some other evidence to the contrary, the fact in issue may be taken

to be proven, shifting the onus and burden onto the Party disputing such fact to

prove otherwise;

2.1.45 “the Purchase Price” means the total purchase price, comprising the Deposit and

the Balance of the Purchase Price, as set out in Part Four, Section D;

2.1.46 “the Purchaser” means the Purchaser as designated in Part Four, Section B

whether singular or jointly, as the case may be, but specifically excluding any

subsequent spouse or partner of the Purchaser who is not so designated in Part

Four, Section B;

2.1.47 “Refund” means the consideration the Seller is to pay to the Purchaser or other

applicable person upon termination of the Life Right as contemplated and

provided for in this Agreement;

2.1.48 “the Register” means the register of purchasers recording those persons who have

acquired life rights under the Scheme;

2.1.49 “Responsible Authority” means any national, provincial and/or local authority or

legislature, any agency, regulatory body, local institution, department,

inspectorate, minister, ministry, official or public or statutory person (whether

autonomous or not) having jurisdiction over any or all of the Parties or the subject

matter of this Agreement, including but not limited to the Local Authority;

2.1.50 “the Seller” means the Seller as designated in Part Four, Section A;

2.1.51 “Scheme” means the scheme for retired persons situated upon or to be

developed on the Land, as the case may be, and which is and will be conducted

as a retirement village as contemplated and provided for in the Act, the HDSFRP

Regulations, the Management Association Constitution and/or the Conduct

Rules, as the case may be – including any extension thereof, if applicable;

2.1.52 “Sectional Titles Act” means the Sectional Titles Act, 1986 (Act No. 95 of 1986);

2.1.53 “Seller’s Attorneys’ Trust Account” means the trust bank account designated as

such in Part Four, Section H;

2.1.54 “the Services” means the services required to be made available by the

Managing Agent on behalf of the Management Association to the Members as

contemplated and provided for in the Management Association Constitution to

give effect to the Scheme and each Member’s occupation, use and enjoyment

of his or her life right and/or unit, which Services comprise different packages or

levels of requirements, with the Purchaser having chosen the Services Package

demarcated in Part Four, Section E;

2.1.55 “Services Package” means any of the Gold, Diamond, Platinum, Assisted and/or

Health Care Services as detailed and set out in Annexure 1 of Part Six, of which

the Purchaser has chosen the Services Package demarcated in Part Four, Section

E;

2.1.56 “South Africa” means the Republic of South Africa;


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2.1.57 “Third Party Occupant” or “Nominated Occupant” means a person complying

with the minimum age prescribed in the Act as being a retired person, other than

the Purchaser, to whom the Purchaser may let or allow use and occupation of the

Unit in terms hereof and who is specifically designated as such in Part Four, Section

C as at the Signature Date;

2.1.58 “Trustee Committee” means the committee comprising elected Members as

contemplated and provided for in this Agreement, the HDSFRP Regulations, the


may be;

2.1.59 “Unit” means the unfurnished apartment chosen by and allocated to the

Purchaser as described in Part Four, Section D, together with and including the

agreed and demarcated Storage Areas, Parking Bay, Additional Parking Bay

and/or Exclusive Use Area, if and to the extent applicable; and/or

2.1.60 “VAT” means Value Added Tax as defined and contemplated, from time to time,

under and in terms of the Value Added Tax Act, 1991 (Act No. 89 of 1991) (“the

VAT Act”), together with such Rules, Notes and Notices published under and by

virtue of such act.

2.2 In construing and/or interpreting this Agreement, unless otherwise specified,:

2.2.1 any reference to "R", “Rand”, or "rands" or "cents" will be references to the lawful

currency of South Africa from time to time;

2.2.2 any reference to "date of signature hereof" or “Signature Date” (or words of similar

meaning) will be read as meaning a reference to the date of the last signature on

this Agreement, namely the date on which the last Party signs the Agreement;

2.3.3 any reference, express or implied, to any Legislation, enactment and/or statute,

includes references to:

2.3.3.1 that enactment and/or statute as re-enacted, amended, extended or

applied by or under any other enactment and/or statute (before and/or after

signature hereof);

2.3.3.2 any enactment and/or statute which that enactment and/or statute re-

enacts (with or without modification); and

2.3.3.3 any subordinate legislation made (before or after signature hereof) under any

enactment and/or statute, as re-enacted, amended, extended or applied as

described in Clause 2.3.3.1 or under any enactment and/or statute referred to

in Clause 2.3.3.2,

provided that no such enactment and/or statute and/or subordinate legislation

made after the date of signature hereof will increase the liability of any Party

under this Agreement (save for any increase in the statutory maximum interest

rate allowed and/or claimable under any Law);

2.3.4 any references to documents "in the agreed form" are to documents in terms

agreed by the Parties and initialled by or on behalf of the Parties for the purposes

of identification;

2.3.5 any reference to a Part, Clause, Section, Schedule or Annexure will, unless clearly

stipulated otherwise, be deemed to be a reference to a Clause, Part, Section,

Schedule or Annexure of or to this Agreement;


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2.3.6 any reference to this Agreement means this Agreement and all Parts, Schedules

and Annexures hereto;

2.3.7 all Parts, Sections, Schedules and Annexures will be deemed to form Part of this

Agreement, unless stipulated otherwise;

2.3.8 headings of the Clauses in this Agreement are for the purpose of convenience

and reference only and will not be used in the interpretation of nor modify nor

amplify the terms of this Agreement nor any Clause hereof;

2.3.9 if any provision in a definition is a substantive provision conferring rights or

imposing obligations on any Party, notwithstanding that it is only in the definition

Clause, effect will be given to it as if it were a substantive provision in the body of

the Agreement;

2.3.10 Clause headings and/or head notes to any paragraph are inserted for reference

purposes only and will not affect nor influence the interpretation of any of the

provisions to which they relate;

2.3.11 any reference to a day, week, month or year will be construed as a Gregorian

day, week, month or year, as the case may be;

2.3.12 any reference to a “day” will mean a period of 24 (twenty four) hours running

from 1 (one) second past midnight to midnight that same day;

2.3.13 any reference to “business day” will mean a day in which banks are open for

business in South Africa, but will exclude Saturdays, Sundays and public holidays,

as the case may be, whereas the term “calendar day” means each and every

day of the week;

2.3.14 any reference to a public holiday or the words “public holiday” will, unless

otherwise agreed to in writing by and between the Parties, be only those

statutorily recognised and gazetted public holidays in South Africa from time to

time;

2.3.15 any reference to “Business Hours” will mean 09h00 to 17h00 Local Time;

2.3.16 any references to specific times will be to the official time as applied from time to

time in the province of the Western Cape (“Local Time”);

2.3.17 if any obligation or act is required to be performed on a particular day or date, it

will be performed, unless otherwise stipulated, by 16h00 Local Time;

2.3.18 when any number of days is prescribed, same will be reckoned exclusively of the

first and inclusively of the last day unless the last day falls on a Saturday, Sunday or

public holiday in South Africa, in which case the last day will be the next

succeeding day which is not a Saturday, Sunday or public holiday in South Africa;

2.3.19 where figures are referred to in numerals and in words, if there is any conflict

between the two, the words will prevail;

2.3.20 expressions defined in this Agreement will bear the same meanings in Schedules

or Annexures to this Agreement which do not themselves contain their own

conflicting definitions;

2.3.21 the use of any expression covering a process available under South African law,

such as a winding-up (without limitation eiusdem generis – meaning of the same

kind) will, if any of the Parties to this Agreement is subject to the law of any other

jurisdiction, be construed as including any equivalent or analogous proceedings


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under the law of such defined jurisdiction;

2.3.22 the use of the words “include”, "including", “without limitation” and “in particular”

whether or not followed by a specific example will not be construed as limiting

the meaning of the general wording preceding it and the eiusdem generis rule

will not be applied in the interpretation of such general wording or such specific

example – This rule means when Particular words pertaining to a class, category

or genus are followed by general words, the general words are construed as

limited to things of the same kind as those specified;

2.3.23 the words “other” and “otherwise” will not be construed eiusdem generis with any

preceding words where a wider construction or interpretation is possible;

2.3.24 where any term is defined within the context of any particular Clause, the term so

defined, unless it is clear from the Clause in question that the term so defined has

limited application to the relevant Clause, will bear the meaning ascribed to it for

all purposes in terms of this Agreement, notwithstanding that that term has not

been defined in this interpretation Clause;

2.3.25 there will be an obligation and it will be binding on and enforceable by the

estates, heirs, executors, administrators, trustees, permitted assigns or liquidators of

the Parties as fully and effectually as if they had signed this Agreement in the first

instance and reference to any Party will be deemed to include such Party's

estate, heirs, executors, administrators, trustees, permitted assigns or liquidators, as

the case may be;

2.3.26 the expiration or termination of this Agreement will not affect such of the

provisions of this Agreement as expressly provide or contemplates that they will

operate after any such expiration or termination or which of necessity must

continue to have effect after such expiration or termination, notwithstanding that

the Clauses themselves do not expressly provide for this;

2.3.27 any provision which contemplates performance or observance subsequent to

any termination or expiration of this Agreement, will survive any termination or

expiration of this Agreement and continue to be of full force and effect;

2.3.28 termination, howsoever arising, will be without prejudice to and will not affect the

accrued rights, remedies, claims and/or liabilities of either or any of the Parties

arising hereunder prior to such termination;

2.3.29 the expiry or termination of this Agreement will not prejudice the rights of either or

any of the Parties in respect of any antecedent breach or non-performance by

either or any Party of any of the terms and conditions hereof;

2.3.30 should this Agreement be signed on a date that results in the use of any tenses

herein being inappropriate, the term will be read in the appropriate tense;

2.3.31 the rule of construction that the contract will be interpreted against the Party

responsible for introducing a Clause and/or the structuring of any provision and/or

the drafting or preparation of the Agreement, will not apply and is hereby waived

by the Parties;

2.3.32 the rule of construction that the contract will be interpreted most favourable to

the consumer and/or the Party receiving the service will not apply and is hereby

waived by the Parties, subject to and to the extent permissible by the provisions of

the Consumer Protection Act;

2.3.33 an expression or word which signifies or refers to –


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2.3.33.1 any gender includes, where applicable and appropriate, the other

genders;

2.3.33.2 a person, includes, where applicable and appropriate, a natural person,

company, close corporation, trust, partnership or other entity, whether or

not having a separate legal personality;

2.3.33.3 the singular includes the plural and vice versa, where applicable and

appropriate;

2.3.34 any reference to “writing” or words of similar meaning means legible (coherent

and understandable) writing in English in handwritten or typographical manner or

form;

2.3.35 any reference to “notice” or notice being required to be given will mean written

notice or notice in writing;

2.3.36 the words “shall”, “will” and/or “must” used in the context of any obligation or

restriction will have a prescriptive and peremptory (meaning absolute)

application;

2.3.37 a reference to a consecutive series of two or more Clauses is deemed to include

all the Clauses including and between the first and the last mentioned Clauses;

2.3.38 defined terms or words appearing in title case or starting with a capital letter must

be given their defined meaning whilst the same terms or words appearing in

lower case must be interpreted in accordance with their plain English and

grammatical meaning;

2.3.39 references to “indemnifying” any person against any circumstance include

indemnifying and keeping him harmless, on an after tax basis, from all actions,

claims and proceedings from time to time made against him and all loss,

damage, payments, costs or expenses suffered, made or incurred by him as a

consequence of that circumstance;

2.3.40 no provision will, unless otherwise specifically provided for, constitute a stipulation

for the benefit of any person who is not a Party to this Agreement, namely it will

not provide for a stipulatio alteri meaning that a non-Party will not be able to

claim any benefit under this Agreement;

2.3.41 reference to any Responsible Authority or any public or professional organization

or firm will include references to any of its successors or any organization or entity

which takes over its functions or responsibilities;

2.3.42 if any interest is to be charged on any payment in arrear or otherwise, interest will

accrue daily and be compounded monthly; and

2.3.43 whenever any person is required to act as an Independent Expert and not as an

arbitrator, then –

2.3.43.1 the determination of the expert will (in the absence of manifest error or fraud)

be final and binding;

2.3.43.2 subject to any express provision to the contrary, the expert will determine the

liability for his charges, which will be paid accordingly;

2.3.43.3 the expert will be entitled to determine such methods and processes as he

may, in his sole discretion, deem appropriate in the circumstances provided

that the expert may not adopt any process which is manifestly biased, unfair

or unreasonable;


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2.3.43.4 the expert will consult with the relevant Parties (provided that the extent of the

expert's consultation will be in his sole discretion) prior to rendering a

determination; and

2.3.43.5 having regard to the sensitivity of any confidential information, the expert will

be entitled to consult with and take advice from any person considered by

him to have expert knowledge with reference to the matter in question.

3. INTRODUCTION

3.1 The Seller is the registered owner of the Land.

3.2 The Seller is in the process of establishing or has established a housing development

scheme (as contemplated in the Act and the HDSFRP Regulations) on the Land in

terms of both or either of the Sectional Titles Act and the Act, the consequences of

which are the Seller is and will be and become the registered owner of the Land and

each of the individual sectionalized units comprising a sectional title scheme, as the

case may be.

3.3 The Seller intends sub-dividing and compartmentalizing the Building located on the

Land into:

3.3.1 75 (seventy five) sectionalized apartments or units and 5 (five) health care units;

and

3.3.2 storage areas; and

3.3.3 parking bays; and

3.3.4 exclusive use areas; and

3.3.5 the Communal Facilities; and

3.3.6 the Common Property or Common Area,

to bring about the Scheme and thereby conduct the business of providing

accommodation and facilities to and for retired persons in accordance with the Act

and the HDSFRP Regulations.

3.4 The Seller has applied to the Local Authority for the necessary approvals to undertake

the Scheme and, if approved, by way of explanation only, the Seller will be entitled

to and is to sell life rights in respect of each of the residential sectionalized units or

apartments, which life rights do not convey ownership in or to the residential

sectionalized units or apartments, but entitle the purchasers of such life rights the right

to occupy the residential sectionalized units or apartments chosen and paid for by

such purchaser for the duration of the lifetime of the purchaser, which life right

includes the use and enjoyment of such residential sectionalized units or apartments

and the Communal Facilities against payment of a purchase consideration upfront

and levies thereafter inter alia in respect of the cost of providing the Services required

by the purchaser of the life right.

3.5 The Life Right applies to and for the lifetime of the Purchaser of the Life Right,

meaning it will commence on the date the Purchaser takes occupation of the Unit

over which he has a Life Right and endures until the earlier of:

3.5.1 the death of the Purchaser or should there be Joint Purchasers, on the death of

the last Purchaser; or


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3.5.2 the death of the Purchaser or should there be Spouse, on the death of the

Spouse if the Spouse lives longer than the Purchaser; or

3.5.3 the death of the Purchaser or should there be a Third Party Occupant, on the

death of the Third Party Occupant if the Third Party Occupant lives longer than

the Purchaser; or

3.5.4 the date upon which the Purchaser, Spouse and/or Third Party Occupant

voluntarily vacates the Unit; or

3.5.5 the date upon which the Purchaser, Spouse and/or Third Party Occupant should

vacate the Unit following cancellation of this Agreement for breach in terms of

Clause 15 of Part Five or breach of the Management Association Constitution, as

the case may be; or

3.5.6 the date upon which the Purchaser (or should there be Joint Purchasers or a

Spouse or Third Party Occupant, the last of the Purchasers, Spouse or Third Party

Occupant, as the case may be) will, as a result of frailty or the inability to

continue to care for himself or herself, be moved into the Health Care Centre in

terms of Clauses 14.3 and 14.4 of Part Five.

3.6 The Seller is to procure that the Common Services are put in place for the Scheme

and upon the coming into being of the Management Association, on the alienation

of the first life right, the Management Association will be responsible thereafter and

therefore.

3.7 By way of explanation, each purchaser, will and must choose any 1 (one) of the

Services Packages for which the Managing Agent will be tasked by the Management

Association to procure and/or deliver, for which levies will be payable to the

Management Association.

3.8 The Purchaser has, by signature hereto,:

3.8.1 offered to acquire the Life Right to occupy the Unit; and

3.8.2 chosen and committed himself or herself to a Services Package,

upon the terms and conditions set out in this Offer to Purchase, which, when and if

accepted by the Seller, becomes a legally binding agreement by and between the

Parties, subject to the fulfillment of the Conditions Precedent.


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B : CONDITIONALITY

4. CONDITIONS PRECEDENT

4.1 Notwithstanding the acceptance by the Seller of the Offer to Purchase

hereincontained, this Agreement, save for this clause 4 and clauses 1 to 3, 15 and 19

through to and including 21.34 (which are of immediate force and effect) is subject

to the fulfilment of the following suspensive conditions:

4.1.1 Local Authority Approval – the Seller, by the close of Business Hours on 31 July

2012 (or such later or extended date as may be acceptable to the Seller) and

upon terms and conditions acceptable to the Seller, obtains the necessary

approvals and consents to undertake and proceed with the Scheme as

contemplated herein, the Management Association Constitution and/or the

Conduct Rules, as may be applicable; and/or

4.1.2 Pre-Sales – the Seller selling, by close of Business Hours on 31 July 2012 (or such

later or extended date as may be acceptable to the Seller), 30 (thirty) units in the

Scheme, and, for the avoidance of doubt, such sale will only be deemed to have

taken place once a binding contract has been entered into and the contract is

not subject to any suspensive conditions and/or outstanding provisions, save for

this Clause 4.1.2; and/or

4.1.3 Seller’s Finance – the Seller, to the extent necessary, obtaining the appropriate

loan finance to undertake the development of the Scheme by close of Business

Hours on 31 July 2012 (or such later or extended date as may be acceptable to

the Seller) and upon terms and conditions acceptable to the Seller; and/or

4.1.4 Special Conditions – any Special Condition which is clearly stipulated to be a

Condition Precedent under Part Four – Section L: Special Conditions; and/or

4.1.5 Endorsement of Title Deeds – the Seller, by the close of Business Hours on 30

September 2012 (or such later or extended date as may be acceptable to the

Seller) procures that the Title Deed of the Erf and/or the sectionalised units

thereof, as the case may be, as may be necessary and/or applicable, has or

have been endorsed to reflect that the Land and/or the sectionalised units, as

the case may be, is or are subject to a housing development scheme as

contemplated and provided for in the Act and the HDSFRP Regulations.

4.2 The Conditions Precedent in Clauses 4.1.1 to 4.1.3 are stipulated for the sole benefit of

the Seller and may be waived, postponed or deferred, in whole or in part, by only the

Seller, prior to and/or on the date for fulfilment of the Condition Precedent. If the

Conditions Precedent in Clauses 4.1.1 to 4.1.3 are not postponed, fulfilled or waived

(in whole or in part, as the case may be) by the Seller on or by the respective dates

therefore, then save for this Clause 4.2 and Clauses 1 to 3, 9, 15 and 19 through to

and including 21.34, which are of immediate and continuing force and effect, this

Agreement will not come into force nor have any legal or other effect.

4.3 The Seller will be entitled, by written notice, prior to and/or on the dates referred to in

Clause 4.2, to extend the date for fulfilment of the Conditions Precedent aforestated

for a further period as the Seller may deem appropriate.

4.4 The Condition Precedent in Clause 4.1.4 is stipulated for the benefit of both the Parties

and may be waived, postponed or deferred, in whole or in part, by mutual

agreement by both the Parties, prior to and/or on the date for fulfilment of the

Condition Precedent. To the extent the Condition Precedent in Clause 4.1.4 is not

fulfilled, deferred or waived (in whole or in part, as the case may be) by the date for

fulfilment then this Agreement will become null and void ab initio, meaning as if it

never existed.


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4.5 The Condition Precedent in Clause 4.1.5 is stipulated for the sole benefit of the

Purchaser and may not be waived, but may be postponed or deferred by the Seller

prior to and/or on the date for fulfilment of the Condition Precedent. To the extent

the Condition Precedent in Clause 4.1.5 is not fulfilled or deferred by the date for

fulfilment then this Agreement will become null and void ab initio, meaning as if it

never existed.

4.6 The Parties will use their reasonable endeavours to procure the timeous fulfilment of

the Conditions Precedent.

4.7 Should this Agreement become of no force or effect by reason of Clauses 4.2, 4.4

and/or 4.5, then the Parties will be restored as near as may be possible to the position

in which they would have been had this Agreement not been entered into and the

Deposit, if applicable, will (subject to the provisions thereof) be repaid by the Seller’s

Attorneys to the Purchaser.

4.8 Neither Party will have any claim against the other as a result of the failure of the

Conditions Precedent, except for such damages, if any, resulting from the breach of

the provisions in this Clause 4.

SELLER’S RIGHT TO RESILE

4.9 Notwithstanding any provision to the contrary herein contained, at any time prior to a

period of 12 (twelve) months having lapsed from the Signature Date if construction in

respect of the Scheme has not commenced within that period, the Seller, in its

Discretion, will have the right, but not the obligation, to resile from this Agreement.

4.10 Should the Seller exercise its right and election to resile from this Agreement, it must

and will give written notice to the Purchaser that it has elected so to do.

4.11 This Agreement will lapse and become null and void upon notice having been given

and all amounts paid by the Purchaser, together with the interest earned thereon in

the Seller’s Attorneys Trust Account, will forthwith be refunded to the Purchaser, with

the Purchaser having no further claims of whatsoever nature or kind against the Seller

pursuant to the Seller exercising its right and election to resile from this Agreement.


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III : PURCHASE AND SALE

5. PURCHASE AND SALE

5.1 The Seller hereby sells to the Purchaser, who hereby purchases from the Seller, the Life

Right, for the Purchase Price, upon the terms and conditions set out herein.

5.2 Upon payment by the Purchaser of the full Purchase Price the Seller will be deemed

to have hereby ceded, to the Purchaser, all its right, title and interest in and to the Life

Right and delegated its corresponding obligations.

6 PURCHASE PRICE

6.1 The Purchase Price must and will be paid by the Purchaser to the Seller by means of:

6.1.1 the Deposit; and

6.1.2 the Balance of the Purchase Price, in cash, secured by –

6.1.2.1 the Balance of Purchase Price Guarantee; or

6.1.2.2 a Deposit Advantage Guarantee; or

6.1.3 the full Purchase Price secured by a Deposit Advantage Guarantee.

Deposit

6.2 The Purchaser will pay the Seller the Deposit as follows:

6.2.1 The Deposit will be an amount equal to 10% (ten percent) of the Purchase Price.

6.2.2 The Deposit must and will be paid or made within 3 (three) business days of the

Purchaser signing this Agreement by means of a cheque drawn in favour of the

Seller’s Attorneys’ Trust Account or an electronic funds transfer to the Seller’s

Attorneys’ Trust Account as detailed in Part Four, Section H.

6.2.3 To the extent the Purchaser pays the Deposit into the Seller’s Attorneys’ Trust

Account, the Purchaser must and will fax proof of payment to the Seller’s

Attorneys, marked for the attention of the designated individual detailed in Part

Four, Section H and which proof of payment must clearly reflect the File

Reference Number thereon.

6.2.4 All interest on the Deposit is to accrue to and be held for the benefit of the

Purchaser, in accordance with Section 6(3) of the Act, save as otherwise

provided for herein.

6.2.5 On the Occupation Date, the Seller’s Attorneys will:

6.2.5.1 release the capital of such Deposit to the Seller; and

6.2.5.2 repay to the Purchaser all accrued interest, less the usual fees and

commissions (as provided for in the Client Investment Mandate).

6.2.6 The Purchaser acknowledges that the Seller’s Attorneys are not able nor obliged

to invest the Deposit (nor any other amount paid into trust with the Seller’s

Attorneys) before and until the Purchaser has:


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6.2.6.1 complied with all the FICA requirements and having provided all the FICA

Documentation; and

6.2.6.2 has signed and delivered to the Seller’s Attorneys the Client Investment

Mandate,

both of which the Purchaser undertakes to do as soon as reasonably practical in

the circumstances.

6.2.7 Notwithstanding any other Clause, this Agreement will not constitute an Offer to

Purchase capable of acceptance unless and until the Purchaser has paid the

Deposit.

6.2.8 In the event the Purchaser fails to notify the Seller’s Attorneys of any Deposit

made to such attorney or fails to provide the Seller’s Attorneys with information

requested to allow such Deposit to be invested, the Seller and the Seller’s

Attorneys will not be liable for any loss of interest or otherwise on such Deposit.

6.2.9 The Deposit is refundable save and except where the Purchaser is in breach of

this Agreement as provided for in Clauses 15.2, 15.3 and/or 15.4.

Balance of Purchase Price Guarantee

6.3 The Purchaser must and will provide the Seller with the Balance of Purchase Price

Guarantee, in writing, on the following basis:

6.3.1 The Balance of Purchase Price Guarantee must and will be of a sufficient amount

to secure the Balance of the Purchase Price after taking the Deposit into

account.

6.3.2 The Balance of Purchase Price Guarantee must and will be from a South African

registered bank or other financial institution acceptable to both the Seller and

the Purchaser.

6.3.3 The Balance of Purchase Price Guarantee must and will be in an amount and

form and on terms acceptable to both the Seller and the Purchaser.

6.3.4 The Balance of Purchase Price Guarantee must and will be expressed payable

on the Occupation Date or words of similar meaning to give effect to the

payment thereof.

6.3.5 The Purchaser must and will provide the Seller with the Balance of Purchase Price

Guarantee within 21 (twenty one) calendar days of the Signature Date.

Balance of the Purchase Price

6.4 Notwithstanding and in addition to the Balance of Purchase Price Guarantee, the

Purchaser will be entitled to pay the Balance of the Purchase Price, in cash, in which

event,:

6.4.1 the amount thereof must and will be paid into the Seller’s Attorneys’ Trust

Account by no later than the Occupation Date; and

6.4.2 in the event the Purchaser pays the Balance of Purchase Price prior to the

Occupation Date, the amount so paid will be held on deposit by the Seller’s

Attorneys in an interest bearing bank account, with the interest accruing to the

Purchaser and in terms of the Client Investment Mandate; and


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6.4.3 the Purchaser must fax proof of payment to the Seller’s Attorneys, marked for the

attention of the designated individual and which proof must clearly reflect the

File Reference Number thereon; and

6.4.4 to the extent the Purchaser fails to notify the Seller’s Attorneys of any amount so

paid to such attorneys or fails to provide the Seller’s Attorneys with information

requested to allow such amount to be invested, the Seller and the Seller’s

Attorneys will not be liable for any loss of interest or otherwise on such amount so

paid.

Deposit Advantage Alternative

6.5 Should the Purchaser elect to secure the payment of the Deposit and/or the

Purchase Price by means of a Deposit Advantage Guarantee, then and in that event

the following terms will apply:

6.5.1 the Purchaser must clearly indicate in Part Four, Section D, upon signing this

Agreement, that he elects to secure the payment of the Deposit and/or the

Purchase Price by means of a Deposit Advantage Guarantee; and

6.5.2 the Purchaser must and will procure and provide the Agent and the Seller’s

Attorneys with the said Deposit Advantage Guarantee for either the Deposit, the

Balance of the Purchase Price and/or the FULL Purchase Price, as the case may

be, drawn in favour of the Seller, in a form acceptable to the Seller, within 5 (five)

business days of the Purchaser signing this Agreement; and

6.5.3 the said Deposit Advantage Guarantee must and will be payable and paid on or

before the Occupation Date, in cash or by means of an electronic funds transfer

of cash into the Seller’s Attorneys’ Trust Account; and

6.5.4 all risk in and too the Deposit Advantage Guarantee will reside with and be that

of the Purchaser, with the Purchaser appointing the company providing the said

Deposit Advantage Guarantee as its paying agent; and

6.5.5 any inability, failure, neglect and/or refusal by the company providing the said

Deposit Advantage Guarantee to timeously meet its obligations thereunder, in

whole or in part, or when called upon by the Seller’s Attorneys to pay the full

Purchase Price in terms of this Agreement, will, unless otherwise agreed to in

writing by the Seller, constitute a material breach by the Purchaser of this

Agreement.

Warranty by the Purchaser

6.6 Purchaser hereby warrants that he or she:

6.6.1 has sufficient financial resources to pay for the transaction herein contemplated

and provided for, as well as the ongoing commitment to pay the Levies; and

6.6.2 has and will abide fully with all rules, regulations and/or notices published

pursuant to and in terms of FICA and the Exchange Control Regulations; and

6.6.3 knows of no impediments, on his or her side, which could delay the transaction

contemplated herein.

General

6.7 Unless otherwise provided for in this Agreement, all payments on account of the

Purchase Price, interest and other costs, fees and/or charges provided for herein,

must and will be made by the Purchaser to the Seller, free of all bank costs or other


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deductions, and must and will be made to and/or deposited in the Seller’s Attorneys’

Trust Account or alternatively, as per the directions, from time to time, of the Seller’s

Attorneys, subject, at all times, in the manner contemplated and provided for in the

Act and the HDSFRP Regulations.

6.8 The Purchaser cannot, will not and hereby waives his or her right to defer, adjust or

withhold any payment due to the Seller in terms of or arising out of this Agreement,

notwithstanding any other right he or she may have in Law, including but not limited

to excussion, set-off or counter-claim.

6.9 If payment is demanded in terms of this Agreement and the Purchaser disputes the

obligation to make payment, the Purchaser may make such payment in question

under protest and institute action for the recovery thereof together with interest at the

Prime Rate, unless a specific rate of interest is otherwise provided therefore in Law.

6.10 Interest will accrue to the Seller and be charged to the Purchaser at the Prime Rate

plus 3% (three percent) thereon, from time to time, on every amount payable by the

Purchaser to the Seller in terms of this Agreement should such amount not be paid on

due date therefore, whether such date is fixed in the Agreement or in a written

demand by the Seller (and/or its representative) to the Purchaser. For the avoidance

of doubt, the Purchaser will be liable and obliged to and must pay the Seller the

aforementioned interest charge on any late payment.

6.11 Such interest will accrue from the date that payment is due until the actual date of

payment of such amount (both days inclusive) and must and will be paid by the

Purchaser to the Seller prior to the Occupation Date.

6.12 Should the Purchaser fail to:

6.12.1 deliver the Balance of Purchase Price Guarantee or the Deposit Advantage

Guarantee, as the case may be, within the prescribed period or by the date

specified in this Agreement; or

6.12.2 take Occupation when required to,

thereby deferring the date on which the Seller is expected to be paid the Balance of

the Purchase Price or the full Purchase Price, as the case may be, then without further

notice, the Seller, in its Discretion, will be entitled to charge the Purchaser penalty

interest at the Prime Rate plus 3% (three percent) on the Purchase Price. Such

penalty interest will accrue from the date that payment of the Balance of Purchase

Price Guarantee or Deposit Advantage Guarantee, as the case may be, is due or the

date on which the Purchaser failed to comply with his or her obligations, until the

actual date of delivery of the Balance of the Purchase Price Guarantee, the Deposit

Advantage Guarantee or the date upon which the Purchaser has complied with the

Purchaser's obligations relating to taking Occupation, whichever is relevant, and it

must and will be paid by the Purchaser to the Seller prior to the Occupation.

6.13 The provisions set out in Clauses 6.9 to and including 6.12 will in no way prejudice the

rights of the Seller to give notice and take whatever other steps and remedies as are

available in Law and in terms of Clauses 15.2 to and including 15.3 or any other

applicable provision of this Agreement.

7 THE UNIT, POSSESSION, OCCUPATION, RISK AND BENEFIT

The Unit – Layout & Specifications

7.1 It is the intention of the Seller to construct and provide the Unit, for the Purchaser’s use

and enjoyment thereof, substantially in accordance with the Architectural Plan,

attached hereto as Annexure 8 of Part Six, together with the finishes selected or

chosen by the Purchaser for such Unit, as set out in Annexure 9 of Part Six.


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7.2 The Seller reserves the right and will be entitled to redesign the Unit or the layout of

the Scheme pursuant to an engineering, architectural, statutory, regulatory or other

Responsible Authority requirement, in which event the Purchaser will have no recourse

to and/or against the Seller.

7.3 The Seller will be entitled to:

7.3.1 substitute items of a similar standard and quality for any specified item referred to

in Annexure 9 of Part Six – Standard Specifications & Finishes; and

7.3.2 vary the floor plans of the Unit should the Seller consider it reasonably necessary,

for technical reasons, as a result of or pursuant to an engineering, architectural,

statutory, regulatory or other Responsible Authority requirement, whether of a

technical nature or otherwise; and

7.3.3 vary the floor plans of the Building, the Common Property and/or the Communal

Facilities as a result of or pursuant to an engineering, architectural, statutory,

regulatory or other Responsible Authority requirement, whether of a technical

nature or otherwise.

7.4 Neither the Purchaser nor any person employed by him will be entitled or have the

right to carry out any work on the Unit without first obtaining the Seller’s prior written

consent and approval thereto.

Extras

7.5 The Purchaser will be entitled, at its own cost and expense, which will be in addition to

the Purchase Price, to request that the Unit be completed with extras. For the purpose

of this Clause 7.5, the term “extras” means any variation, modification or addition to

or from the finishes selected by the Purchaser for such Unit, as set out in Annexure 9 of

Part Six. Extras will be restricted to floor finishes (carpet, tile or wood flooring), kitchen

units, kitchen worktops, light fittings, built-in cupboards, bathroom fixtures and sanitary

ware items.

7.6 The Purchaser will not be entitled to make any alteration to the Unit’s floor plan nor to

omit or downgrade any finishes selected by the Purchaser for such Unit, as set out in

Annexure 9 of Part Six.

7.7 The Purchaser may make a single request, in writing, to the Seller, incorporating all

extras required, complete with sufficient information to enable the Seller’s contractor

to quote thereon. No request for extras will be considered by the Seller, unless

otherwise agreed to in writing by the Seller, if such request is not received by the Seller

within 30 (thirty) calendar days of the Signature Date.

7.8 The Seller, in its Discretion, will be entitled, but not obliged, to accept or refuse, in

whole or in part, any request for extras. The Seller will and must inform the Purchaser,

in writing, either that the extras are refused or provide the Purchaser with a written

quotation of the additional amount to be charged for such extras. The Purchaser will

be required to accept in writing and make payment directly to the Seller the amount

so quoted for the required extras no less than 30 (thirty) calendar days prior to the

Seller notifying the Purchaser of the start of construction of such extras.

7.9 In the event of the Seller not agreeing to the extras or the Purchaser not timeously

accepting the quote in writing and making payment as contemplated and provided

for in Clause 7.8, the Unit will be completed in accordance with this Agreement and

the Purchaser will be obliged to take occupation thereof in accordance herewith.

7.10 The Purchaser will, in no manner whatsoever, be entitled to interfere with the Seller’s

contractor, which includes the giving of directions or instructions. In this regard, in the


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interests of safety, the Purchaser will not be permitted access to the Land whilst any

construction is taking place without first having obtained the prior written consent of

the Seller and the Seller’s contractor.

Possession, Occupation & Control of the Unit

7.11 Possession, occupation and control of the Unit will be given by the Seller to, and be

taken by, the Purchaser, on the Occupation Date, from which date –

7.11.1 all the benefit and risk of ownership of the Life Right and in the use and

enjoyment of the Unit will pass to the Purchaser; and

7.11.2 the Purchaser will be liable for all Levies and/or other contributions so levied from

time to time.

7.12 The Purchaser will not be entitled to nor will the Purchaser have the right to call for or

take possession, occupation and/or control of the Unit before and until the Purchaser

will have paid the Purchase Price (for the Life Right) in full.

7.13 The Occupation Date reflected in Part Four, Section D is only an estimate or

anticipation of the actual date and no liability whatsoever will attach to the Seller if

the Occupation Date occurs before or after the date so reflected. In order to assist

the Purchaser, the Seller will, as a matter of courtesy, advise the Purchaser, in writing,

4 (four) months prior to and of the actual Occupation Date.

7.14 The Purchaser cannot and will not take possession, occupation and/or control of the

Unit before the Occupation Date, unless the Seller will have agreed thereto in writing

and, in which event, no tenancy will thereby be created and under no

circumstances will the Purchaser acquire any lien, hypothec or be entitled to any

compensation for any improvements effected to the Unit.

7.15 To the extent the Purchaser will have taken occupation of the Unit prior to the

Occupation Date, as provided for in Clause 7.14, then and to that extent the

Purchaser will be obliged to vacate the Unit immediately upon this Agreement being

terminated for whatever reason.

Handover

7.16 On handover of the Unit to the Purchaser, the Purchaser (or his or her duly authorised

nominee) must and will sign an Acceptance of Handover Form, substantially similar to

the one set out in Part Six, Annexure 5 – Pro Forma Handover Form & Snag List,

accepting possession of the Unit and acknowledging that he or she has examined

the sanitary ware, cupboards, worktops, carpets and tiling and have noted on the

form any defects which may exist in these items at the time. The Seller will not be

responsible for the rectification of any defects which are not noted on the

Acceptance of Handover Form.

7.17 To the extent the Seller has handed over the Unit to the Purchaser, the Purchaser must

and will allow the Seller or its agents reasonable access to the Unit for purposes of

inspection and repair, if applicable.

7.18 If the Purchaser fails or refuses to accept handover of the Unit, then and in that event

the certificate issued by the Architect acting in terms of Section 6(1) of the Act will be

deemed sufficient proof that the Unit was free of any defects on the Occupation

Date.

7.19 Notwithstanding any other provision herein contained, should the Purchaser not pay

the Purchase Price for the Life Right on or by the Occupation Date then, without

prejudice to any other remedies available to the Seller and subject to the provisions


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contained in Section 4(3) of the Act, the Purchaser will be liable for payment of

occupational interest calculated at a rate of Prime Rate plus 3% (three percent) on

the Purchase Price from the Occupation Date until payment thereof.

7.20 The occupation interest will accrue daily and be compounded monthly and paid

monthly in advance without deduction or set off to the Seller’s Attorneys on the first

day of each month, commencing on and with effect from the Occupation Date.


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IV : LEGAL FORM AND NATURE OF LIFE RIGHTS AND SPECIFIC PROVISIONS THEREOF

8 LEGAL FORM AND NATURE

Right of Occupation, Not a Form of Property Ownership

8.1 The Life Right herein acquired by and to be transferred from the Seller to the

Purchaser is a “right of occupation” as defined in section 1 of the Act, more

particularly, against payment of a fixed sum of money the Purchaser will have the

power to occupy the Unit for the duration of the Purchaser’s lifetime, but without the

power to claim transfer of ownership of the Unit and/or any other portion of the Land

and/or the Common Property.

Title Deed to be Endorsed

8.2 Neither the Life Right nor the Unit is registrable, meaning that the Purchaser is and will

not be the registered owner of the Unit or any portion of the Land and, as such is not

a form of property ownership, but the Erf’s title deed will be endorsed in the

applicable Deeds Office to read that the Land is subject to a housing development

scheme as defined and contemplated in the Act.

Use and Enjoyment of the Unit & Communal Facilities

8.3 The Life Right confers, subject at all times to the payment of Levies, on the Purchaser:

8.3.1 the right of use and enjoyment of the Unit, the Common Property and Communal

Facilities, as the case may be and where applicable; and

8.3.2 the right to participate in the management of the Scheme through the

Management Association,

but also obliges the Purchaser to comply with the Management Association

Constitution and the Conduct Rules.

Applies to Spouse and/or Third Party Occupant

8.4 The Life Right entitles the person demarcated as the Purchaser’s Spouse in Part Four,

Section C to the use and enjoyment of the Unit and the Communal Facilities, together

with the Purchaser, subject to and in accordance with the provisions of this

Agreement, the Management Association Constitution and/or the Conduct Rules.

8.5 The Life Right entitles the person demarcated as the Third Party Occupant in Part Four,

Section C to the use and enjoyment of the Unit and the Communal Facilities, to the

exclusion of the Purchaser, subject to and in accordance with the provisions of this

Agreement, the Management Association Constitution and/or the Conduct Rules.

Temporary Guests and Visitors

8.6 The Life Right entitles the Purchaser, Spouse or Third Party Occupant, as the case may

be, to allow and permit guests and visitors to temporarily be accommodated or stay

in the Unit for periods of no longer than 5 (five) consecutive calendar days at a time,

unless otherwise agreed to in writing by the Managing Agent.

Certificate

8.7 The Managing Agent will, within 30 (thirty) calendar days of the Purchaser or the Third

Party Occupant, as the case may be, taking occupation of the Unit, issue a


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certificate to the Purchaser confirming that the Purchaser has been recorded as the

owner of a Life Right, with the reference number set out in Part Four, Section D, in the

Register.

Refund

8.8 Pursuant to the fact that the Purchaser obtains no ownership in the Unit or the Land,

the Purchaser or the Beneficiary, as the case may be, will be and become entitled to

the Refund contemplated and as strictly provided for in this Agreement.

9 LIMITATIONS, RESTRICTIONS AND OBLIBATIONS

Joint Purchasers

9.1 To the extent this Agreement is signed by Joint Purchasers, each Purchaser is and will

be jointly and severally liable and responsible for the actions and responsibilities of the

other.

9.2 As a purchaser will be entitled to a membership of the Management Association,

Joint Purchasers will be entitled to 1 (one) vote among and for the Joint Purchasers,

with 1 (one) Purchaser being entitled to vote and the other entitled to be present, but

without a vote, at any meeting of the Members of the Management Association.

Legal Prohibition – only Retired Persons can occupy

9.3 No person, other than a retired person (as defined in the Act) or the Spouse of a

retired person, may occupy the Unit, except with the written consent of all the holders

of Life Rights in the Scheme.

Applies to the Purchaser & All Persons in Occupation

9.4 The limitations, restrictions and obligations contained herein on the Purchaser apply

equally to the Spouse and/or any other Occupant or person occupying the Unit

under and/or by virtue of this Agreement and/or the Purchaser’s rights under and by

virtue of the Life Rights herein transferred, including any trustee, liquidator, curator or

the like.

9.5 The Purchaser must and will ensure and procure that any and all Occupants or

person occupying the Unit under and/or by virtue of this Agreement and/or the

Purchaser’s rights under and by virtue of the Life Rights herein transferred comply with

the Purchaser’s obligations hereunder and adhere to the Management Association

Constitution and the Conduct Rules in every respect.

Personal Rights - limiting Transfer of Rights & Obligations

9.6 The rights and obligations herein created are personal rights by and between the

Seller and the Purchaser and, as such, the Purchaser may not cede his or her rights or

delegate his or her obligations in respect of the Life Right, the Unit or let or part with

the occupation of the Unit other than in terms of this Agreement.

9.7 The Purchaser may not sell nor in any other manner, whether by way of exchange,

donation, grant of an option or pre-emptive right, testamentary disposition, or as a

consequence of intestate succession, dispose of, alienate, transfer or in any way deal

in or with the Life Right and the Unit to any other person except as may be specifically

provided for herein. This Clause applies equally to the Spouse, the Beneficiary and the

Purchaser’s heirs, administrators, executors and assigns.


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Qualifications

9.8 The Life Right is qualified by and subject to:

9.8.1 the approval by the Local Authority of the Sectional Title development to be

carried out by the Seller or Developer on the Land; and

9.8.2 and in accordance with the Sectional Plan (as may be extended consequent

upon the incorporation of any subsequent phase) and any modifications or

alterations which may be made thereto from time to time in accordance with

the provisions of this Agreement or the Sectional Titles Act; and

9.8.3 and entitled to the use of the servitudes for support and for essential services

referred to in the Sectional Title Act; and

9.8.4 the conditions of title contained in the title deeds of the Erf upon which this

Scheme is being or is to be established; and

9.8.5 the conditions contained in the Section 11(3)(b) of the Sectional Titles Act, being

the schedule as may be certified by a conveyancer setting out the servitudes

and conditions of title burdening or benefiting the Land and the other registrable

conditions imposed by the Seller in terms of subsection (2), as well as such other

particulars as may be prescribed; and

9.8.6 such conditions of title, which the Local Authority may impose on the

development and/or the Scheme; and

9.8.7 the availability of materials and the Discretion of the Seller as to the use of other

suitable materials, and the Unit will be completed substantially in accordance

with the plans and specifications approved by the Local Authority, with the

Purchaser having no claim of whatsoever nature against the Seller for any

discrepancies of a non-material nature between the building plans and the

completed Unit.

Use only for Residential Purposes

9.9 The Unit may only be utilised for permanent residential purposes.

Nuisance

9.10 The Purchaser will not do or permit to be done anything which may cause a nuisance

or annoyance to other Occupants of the Scheme.

Conduct Rules

9.11 The Purchaser will comply with the Conduct Rules as may be imposed from time to

time, which includes the House Rules therein.

Alterations & Additions

9.12 The Purchaser may not, without having first obtained the prior written consent of the

Managing Agent, make alterations or additions to the Unit.

9.13 The Seller will not be obliged to compensate the Purchaser, including any Occupant

or Beneficiary, for any repairs, alterations, additions and/or improvements, whether

necessary or otherwise, made by the Purchaser or Occupant, to the Unit, and such

compensation is expressly excluded from any Refund.


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Right to Inspect

9.14 The Managing Agent will have the right to, at all reasonable times, inspect the interior

of the Unit and, in its Discretion, take whatever actions it deems necessary in the best

interests of the health and safety of the Occupants and other Members.

Maintenance & Repair

9.15 The Purchaser is responsible, at his or her cost, for the maintenance and repair of the

Unit. The interior of the Unit, including but not limited to carpets, cupboards, tiling and

painting will, for the duration of this Agreement, be redecorated, maintained,

repaired and/or replaced by the Purchaser at the Purchaser’s cost. Upon termination

of this Agreement or the Life Right, for whatever reason and notwithstanding any

other provision herein contained, the interior of the Unit will be left in, at least, the

same condition or state as it was on commencement of occupation.

9.16 Notwithstanding and in addition to any other provision of this Agreement, the

Management Association Constitution and/or the Conduct Rules, should a Purchaser

fail to care for, maintain or repair the interior of the Unit and persists in such failure for

a period of 30 (thirty) calendar days after receipt of a written notice to repair or

maintain, the Managing Agent will be entitled, but not obliged, to remedy the

Purchaser’s failure and to recover the cost in doing so from the Purchaser.

9.17 The Seller and the Managing Agent will be entitled to recover the reasonable cost of

repairing any damage caused directly or indirectly by an Occupant or the Purchaser

from the Purchaser, who must and will be liable and obliged to pay same upon

written request therefore or, at their election and in their Discretion, to offset this cost

from any amount due back to the Purchaser, Spouse or Beneficiary in terms hereof.

Occupation – Guests or Visitors

9.18 No person, other than a temporary guest or visitor of the Purchaser, Spouse or Third

Party Occupant, may occupy the Unit without the prior written consent of the

Managing Agent, and in which instance:

9.18.1 the Purchaser will remain responsible for such guest or visitor and, in particular,

procure and ensure that the guest or visitor complies with the Conduct Rules; and

9.18.2 the Purchaser, Spouse or Third Party Occupant, as the case may be, must and

will advise the Managing Agent’s on-duty representative that such guest or visitor

is on the Property, giving his or her full names, permanent address and contact

details; and

9.18.3 the guest or visitor will not be entitled to stay for a period longer than 5 (five)

consecutive calendar days without first having obtained the Managing Agent’s

written permission.

Occupation – Spouse

9.19 To the extent this Agreement is signed by a Purchaser who has a Spouse who is not a

Joint Purchaser, the rights and obligations of the Spouse herein created and provided

for are subject to such Spouse having counter signed this Agreement in Part Two, with

such counter signature being deemed, by virtue of this Clause, to have signified the

acceptance by the Spouse of the benefits and to be bound by the obligations

contained herein.

Occupation – Third Party Occupant

9.20 The Purchaser need not be an Occupier of the Unit and, as such, to the extent the


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Purchaser has not nominated a Third Party Occupant in Part Four, Section C as at the

Signature Date, the Purchaser may, provided the prior written consent of the

Managing Agent and Seller has been obtained and the Purchaser or his or her

Spouse is not occupying the Unit, let or allow use and occupation of the Unit to a

Third Party Occupant.

9.21 If and to the extent the Seller and the Managing Agent grant the permission to let or

allow use and occupation of the Unit to a Third Party Occupant as contemplated in

Clause 9.20, such use and occupation will, in all instances, be subject to include at

least the following conditions:

9.21.1 the Third Party Occupant will be a minimum age of 50 (fifty) years old or such

age as may constitute a retired person in terms of the Act and the HDSFRP

Regulations from time to time; and

9.21.2 the Purchaser will lodge with the Managing Agent a written undertaking, signed

by such Third Party Occupant in the presence of the Managing Agent’s duly

authorised representative, that he or she will observe and adhere to all the

Conducts Rules and other rules as may be in force from time to time; and

9.21.3 it will be a condition of any such lease or other agreement allowing use and

occupation that such use and occupation will be automatically terminated,

notwithstanding the period thereof, upon the termination of occupancy of the

Unit or Life Right as contemplated herein, the Management Association

Constitution and/or the Conduct Rules, as the case may be.

9.22 Notwithstanding the provisions contained in Clause 9.21, the Seller will be entitled, but

not obliged, at its Discretion, to allow the Third Party Occupant to remain in

occupation of the Unit for such further period following termination and on such

further basis as the Seller deems fit and all or any amounts payable by the Third Party

Occupant for this continued use and occupation of the Unit must and will be paid by

the Purchaser and/or the Third Party Occupant to the Seller.

9.23 Neither the Seller nor the Managing Agent will be deemed to have waived any of

their rights against the Purchaser by granting its consent as herein provided.

9.24 The Purchaser will be responsible for the payment of the Levies due as provided for

herein notwithstanding occupation of the Unit by a Third Party Occupant.

Co-habitation

9.25 The survivor, in the case of Joint Purchasers, may with the prior written consent of the

Seller and the Managing Agent, allow a subsequent spouse or civil life partner, as

defined in the Civil Union Act, 2006 (Act No. 17 of 2006), to cohabit with him or her in

the Unit, subject at all times to the following conditions:

9.25.1 the subsequent spouse or civil life partner will be a minimum age of 50 (fifty) years

old or such age as may constitute a retired person in terms of the Act and the

HDSFRP Regulations from time to time; and

9.25.2 the Purchaser will lodge with the Managing Agent a written undertaking signed

by such a spouse or civil life partner that he or she will observe all the Conduct

Rules and other rules as may be in force from time to time; and

9.25.3 it will be a condition of such cohabitation that such use and occupation will be

automatically terminated, upon the termination of occupancy of the Unit or the

Life Rights as provided for herein the Management Association Constitution

and/or the Conduct Rules, as the case may be.


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9.26 Notwithstanding any other provision herein contained, the Seller will be entitled, in its

Discretion, but not be obliged, to offer the Life Right in respect of the Unit to the

subsequent spouse or life partner at the reasonable prevailing market price thereof.

Absence

9.27 For the purpose of enhancing the security of the Land, the Common Property and the

Occupants, the Occupant must and will notify the Managing Agent if he or she is to

absent himself from the Unit for a continuous period of more than 1 (one) calendar

day.

9.28 In the event of the Unit being left vacant at any time, the Seller and/or the Managing

Agent will, in cases of emergency, be entitled, but not obliged, to access the Unit.

Loss, Damage or Theft

9.29 Neither the Seller nor the Trustee Committee nor the Managing Agent will be

responsible for any damages which the Purchaser and/or any Occupant may suffer

as a result of loss, damage or theft of property.

9.30 The Purchaser hereby waives all and/or any claims of whatsoever nature against and

hereby indemnifies and irrevocably undertakes to indemnify the Seller, the Trustee

Committee and the Managing Agent against any claim which he or she may have

against either or all of them on the basis of personal injuries or loss or damage to

property, regardless of whether such injuries, loss or damage was caused by the

condition of the Scheme or Unit and/or any improvement thereon or equipment

therein or by the conduct of any person in the service of the Seller, the Trustee

Committee and/or the Managing Agent, as the case may be, save where caused by

the negligence of the Scheme.

9.31 The Purchaser hereby waives all and/or any claims of whatsoever nature against and

hereby indemnifies and irrevocably undertakes to indemnify the Seller, the Trustee

Committee and the Managing Agent against any claim which any Occupant or

employee of the Purchaser or Occupant may lodge against them on the basis of

personal injuries or loss or damage to property, regardless of whether such injuries, loss

or damage were caused by the condition of the Scheme or Unit and any

improvement thereon or equipment therein or by the conduct of any person in the

service of the Seller, the Trustee Committee and/or the Managing Agent, as the case

may be, save where caused by the negligence of the Scheme.

Extension of the Scheme

9.32 The Seller reserves the right, but not the obligation, to add to and/or extend the

Scheme by adding to or consolidating with other properties adjoining the Land to

enlarge the Scheme – it being understood that the Seller’s right includes, but is not

limited to the right to extend an existing building horizontally or vertically or to erect

an additional building or buildings on a specified part of the Land, the Garage Area,

Common Property and/or other properties acquired therefore and to divide the

extended part of the additional building or buildings into a section or sections,

common property and exclusive use areas. This right of extension will be valid for at

least 20 (twenty) years, commencing from the Occupation Date, or such other later

date and terms and conditions as may be stipulated in any approval granted

therefore in terms of the Sectional Titles Act and/or LUPO, as the case may be, by the

Local Authority from time to time.

9.33 The Purchaser hereby irrevocably consents to the Seller extending the Scheme and to

allow the Seller to exercise its positive and real right to proceed with the development

of the Scheme as envisaged herein, including any extension thereof, and hereby

waives his or her right to interfere with or obstruct the Seller from erecting on the Land,


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Common Property or any portion thereof, the Building, any additional buildings

and/or to have the right of use of or access to any portion or portions of the Common

Property upon which any existing or additional buildings are being erected until such

time as the aforesaid existing or additional buildings have been completed and the

sectional plan or plans thereof registered.

9.34 The Purchaser will have no right to, or in, any such buildings, of which units the Seller

will be the sole owner and certificates of registered sectional title will be or will have

been issued to and in the name of the Seller who will be entitled to dispose of or

otherwise deal with such units for its own exclusive benefit and account.

9.35 The Purchaser consents to his or her participation quota being reviewed and adjusted

as provided for in Law upon registration of the sectional plan or plans of the existing or

additional building or buildings.

9.36 Neither the Purchaser nor any successor in title to the Purchaser or any other person

to whom the Purchaser or Spouse or his or her successors in title to the Unit has

granted any real right, will be entitled to withhold his or her consent to the opening of

the sectional title register or registers or any extension of the Scheme as

contemplated in this Agreement.

9.37 The Purchaser hereby irrevocably undertakes to sign, upon request by the Seller, all

such documents as may be necessary to enable the Seller to proceed with the

aforesaid Scheme and/or any extension thereof.

9.38 Should the Purchaser fail, neglect or refuse to sign any such document, then the

Purchaser hereby appoints and is deemed to have appointed the Seller as his

attorney and agent in rem suam (meaning in its own interest) to sign any such

document on his or her behalf.

9.39 The proceeds of the sale of all and/or any units comprising the existing and/or

additional building will be for the Seller's sole account and benefit.

9.40 The Seller will have the right, within its Discretion, to effect variations to the dimensions

and configuration of each building comprising the Scheme and/or any extension

thereof, provided that such variations will not in a material fashion prejudicially affect

any unit already sold.

Nuisance

9.41 The Purchaser acknowledges that there may be occasions, from time to time, and

especially during the extension contemplated in Clause 9.32, where the Occupier’s

use and enjoyment of and access to the Unit, the Communal Facilities and the

Common Property may be temporarily interrupted and/or there may be noise and

dust, caused by maintenance, repair and/or building operations.

9.42 The Seller will use all reasonable endeavours to procure that any inconvenience or

interruption due to portions of the building being incomplete or the extension

operations being carried out are kept to a minimum.

9.43 The Occupant will have no claim of whatsoever nature against the Seller, nor will the

Occupant be entitled to any reduction in the Purchase Price and/or Levies by reason

of any such inconvenience and/or interruption.

9.44 The Occupation Date will under no circumstances be deferred or the Unit considered

unsuitable for beneficial occupation by reason of any improvements, additions,

alterations or the extension not having been fully or properly completed.


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10 INSURANCE

10.1 The Management Association, through the Managing Agent, will insure the Buildings

forming part of the Scheme against loss resulting from fire and other such perils

(including destruction during and/or post any building and/or construction phase) as

the Managing Agent and the Seller in their Discretion may deem necessary.

10.2 The cost of insurance arranged by the Managing Agent will be factored into and

included in the Levy.

10.3 The Occupant will not do or permit anything whatsoever to be done which may in

any way vitiate the policy of insurance herein contemplated or cause the premiums

thereof to be increased.

10.4 The insurance of the contents of the Unit will be the sole responsibility of and will be

paid for by the Occupant.

10.5 The Occupant will solely and exclusively be at risk for all his or her property and

personal affects, which may be in the Unit and/or on the Scheme and will be

responsible for his or her own insurance in relation thereto.

10.6 In the event of the Unit being totally or partially destroyed by fire or any other cause

whatsoever, to such extent that occupation thereof is not possible, either the Seller or

the Purchaser will be entitled to cancel this Agreement, in which event the Seller will

refund to the Purchaser from the proceeds of any insurance claim successfully

negotiated by the Seller, an amount equal to the Refund.

10.7 Should the Unit be damaged to such an extent that it is temporarily unsuitable for

human habitation, but is capable of repair, then the Seller undertakes to reinstate the

Unit as soon as possible to its previous condition subject to and from the proceeds of

any insurance claim successfully negotiated by the Seller, and the Seller will

endeavour to provide temporary alternative accommodation to the Purchaser whilst

such repairs are carried out.


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V : SERVICES AND FINANCIAL OBLIGATIONS

11 SERVICES, COSTS AND/OR LEVIES

Financial Implications

11.1 The Scheme contemplates and provides for the following costs, charges, Levies

and/or rentals:

Purchase Price

11.1.1 the payment by the Purchaser to the Seller of the Purchase Price; and/or

Levies

11.1.2 the payment by the Purchaser to the Management Association of the following

Levies in accordance with the Management Association Constitution:

11.1.2.1 an Annual Levy, which is payable in 12 (twelve) equal monthly instalments,

for amongst others the cost of conducting the affairs of the Scheme and

the Management Association and providing the Common Services; and/or

11.1.2.2 a Special Levy, being a once off payment at any time and/or from time to

time, for all such expenses of the Scheme which are not included in any

Annual Levy or which may have arisen as a matter of urgency or generally

in furthering the interests of the Members and the Scheme and which

applies generally to all Members; and/or

11.1.2.3 an Extra-ordinary Special Levy, being a once off payment at any time

and/or from time to time, specific to a particular Member or group of

Members where or when the Management Association has incurred

expenditure, which the Trustee Committee, in its Discretion, considers to

benefit primarily or only such Members or groups of Members; and/or

11.1.2.4 fines for any breach of the Conduct Rules; and/or

Services Packages

11.1.3 the Payment by each Occupant to the Management Association for the specific

Services Package selected by the Occupant, which payment will be paid

monthly in advance;

Rentals

11.1.4 the monthly rentals payable by each Occupant, to the Seller, to the extent

applicable, for the rental and use of a parking bay, an additional parking bay,

storage area and/or exclusive use area.

Initial Services

11.2 The Occupier will have access, where and if applicable, initially to 3 (three) types of

Services, namely:

11.2.1 the Apartment Services, designated as such and as set out in Part Six, Annexure

1, which, in turn, comprises 3 (three) care options, each with their own cost

implications, namely:


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11.2.1.1 the Gold Package; or

11.2.1.2 the Diamond Package; or

11.2.1.3 the Platinum Package; and/or

11.2.2 the Assisted Care Services, designated as such and as set out in Part Six,

Annexure 1; and/or

11.2.3 the Health Care Services, designated as such and as set out in Part Six, Annexure

1.

11.3 The cost of these Services or Services Packages, to the Occupier, will be in addition to

the Purchase Price payable by the Purchaser to the Seller, and any Levy charged by

the Management Association.

11.4 The initial Services contemplated in Clause 11.2 may vary, be added to or reduced

from time to time depending on, amongst others, the availability of human resources

and skills and the number of vacant units allocated for the specific services.

11.5 This Agreement pertains specifically to the type of Services Package selected by the

Purchaser in Part Four, Section E as at the Signature Date.

11.6 To the extent an Occupier wishes or needs to change the type of Services Package

to another Services Package, the Occupier will be required to apply to the Managing

Agent, in writing, requesting such change of Service.

11.7 The Managing Agent may, in its Discretion,:

11.7.1 accept such request, in whole or in part or offer an alternative Services Package,

in which instance, the Purchaser will be required to sign an addendum to this

Agreement, wherein the amended Levies, rentals, charges and costs will be

detailed and which addendum will be deemed to amend this Agreement to the

extent of the details contained therein and will not novate (meaning replace it

with a new agreement) or cancel this Agreement; or

11.7.2 reject such request:

11.7.2.1 on medical grounds; or

11.7.2.2 if and to the extent the Managing Agent is of the reasonable opinion that

the Purchaser or Occupier is unable to care for himself or herself under any

of the service packages or any alternative service; or

11.7.2.3 if there is any likelihood or possibility of the Purchaser or Occupant

endangering himself or herself, other Occupants; or

11.7.2.4 if it places the Seller, Managing Agent, Manager and/or any of their staff at

risk,

in which instance the termination provision contemplated and provided for in

Clause 14 will apply.

Levies & Rentals

11.8 The Purchaser is liable to, must and will pay, to the Managing Agent, monthly in

advance, on or before the first calendar day of each month, such monthly Levy as

determined in accordance with the Management Association Constitution from time

to time by the Managing Agent as is necessary for conducting the affairs of the

Scheme.


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11.9 The Purchaser is liable to, must and will pay, to the Seller, through the Managing

Agent, monthly in advance, on or before the first calendar day of each month, such

monthly rental as agreed to herein, which monthly rental will increase by 8% (eight

percent) per annum on the first calendar day of March of each year.

11.10 The first Levy and rental will be due and payable by the Purchaser on the Occupation

Date.

11.11 All Levies and rentals must and will be paid, in cash, by means of a cheque drawn in

favour of the Management Association Bank Account or an electronic funds transfer

to the Management Association’s Bank Account as detailed in Part Four, Section J.

11.12 The estimated annual amounts of the Levy for the Unit and the rental for the Parking

Bay, the Additional Parking Bay, the Storage Area and the Exclusive Use Area, where

applicable, for a period of 3 (three) years in advance is as set out in Part Four, Section

E which Levies are anticipated and estimated to and/or will increase at an

approximate rate of 8% (eight percent) per annum.

11.13 The basis upon which the Levy for the Unit is calculated is its participation quota in the

entire Scheme, including the Common Property.

11.14 The costs of any television, telephone, cleaning, electricity and maintenance of the

Unit and/or the Parking Bay, the Additional Parking Bay, the Storage Area and the

Exclusive Use Areas, where applicable, as the case may be, are specifically excluded

from the Levies and will be for the Purchaser’s own account, unless otherwise

indicated in Part Four, Section L – Special Conditions.

11.15 The Levies are subject to increase on an annual basis, commencing with effect from

the first calendar day of March of each year.

11.16 In the event the Managing Agent budgets to perform additional services or to meet

additional costs over and above those contemplated herein and these costs result in

an increase in the Levy, then the Managing Agent will be entitled to recover from

and each Purchaser must and will be liable to pay, upon presentation of invoice, the

increased portion of the Levy relating to the additional amount thereof.

Disclaimers

11.17 It is recorded that:

11.17.1 the Health Care Facility is not a hospital or specialised geriatric unit as it is only

capable of providing primary nursing care. Any Occupant requiring specialised

care, treatment, supervision or nursing will not be able to receive this from the

Health Care Facility.

11.17.2 the Assisted Care Units are designed to accommodate the aged who can no

longer manage a unit by themselves, but who are not yet frail or otherwise

incapacitated, with the level of supervision and care not being as high as that in

the Health Care Facility.

11.18 No guarantee is given that the Health Care Facility or the Assisted Care Unit is

capable of meeting the Occupant’s frail care or assisted living needs either now or in

the future.

11.19 The Occupant is not guaranteed that accommodation will be available in the Health

Care Facility as the size of the facility is fixed and accommodation will be given on a

“first come first served” basis.


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11.20 The Occupant is not guaranteed that accommodation will be available in Assisted

Care Units as the number of units is fixed and accommodation will be given on a

greatest need basis as reasonably determined by the Managing Agent from time to

time, who may, but is not obliged to, seek alternate solutions for Assisted Care

Services within the Purchaser’s Unit, with such services incurring additional Levies.

Defraying Expenses

11.21 In order to defray the costs of operating the Health Care Facility and/or the Assisted

Care Units, the Managing Agent is hereby authorised and instructed, but not obliged,

during periods of low occupancy, to provide care to those who are not Occupants or

residents of the Scheme.

Admission to the Health Care Facility

11.22 The Occupant will only be admitted to the Health Care Facility with the approval of a

medical practitioner or the nurse in charge of the Health Care Facility.

11.23 Should the Occupant become mentally or physically infirm as certified by a

registered medical practitioner, he or she will, if it is deemed to be in his or her best

interest, as determined by the Managing Agent and a medical practitioner, be

transferred to the Health Care Facility or some other more suitable institution as

directed by the said medical practitioner. The cost of such care will be for the

account of the Occupant.

11.24 Should the Managing Agent and the said medical practitioner be unable to reach

agreement in respect of the matters referred to in Clause 11.23, then the decision of

the medical practitioner will prevail.

11.25 Should an Occupant need to be cared for in the Health Care Facility then he or she

will be charged a Health Care Levy by the Managing Agent, the initial estimated

amount of which is set out in Part Four, Section E.

11.26 The Health Care Levy will be invoiced monthly in arrears and will be due and payable

on the last day of each month that the Occupant receives care in the Health Care

Facility. The amount due will be calculated pro rata for any portion of the month that

the Occupant receives care in the Health Care Facility.

11.27 It will not be necessary for the Purchaser to sign an addendum to this Agreement as

this Agreement will be deemed to be amended to the extent and for the duration

the Occupant is cared for in the Health Care Facility.

Assisted Care Units

11.28 Prior to occupying an Assisted Care Unit, the Occupant will be required to

permanently relinquish his, her or their right to occupy the Unit which is the subject

matter of this Agreement, to terminate this Agreement and to enter into a separate

agreement in terms of which they will be required to acquire an Assisted Care Unit.

11.29 The purchase consideration then payable for an Assisted Care Unit will, unless

otherwise agreed to in writing by the Parties, be paid from the proceeds of the sale of

the Unit, with any additional remaining balance, if any, in cash by the Purchaser or

Occupant, as the case may be.


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VI : MANAGEMENT ASSOCIATION, GOVERNANCE & MANAGEMENT

12 THE MANAGEMENT ASSOCIATION, THE CONSTITUTION, MEMBERSHIP AND RELATED

DOCUMENTATION

The establishment of the Management Association

12.1 Pursuant to and in accordance with Regulation 7 of the HDSFRP Regulations, a

management association (to be known as "The Summerley Court Management

Association") will be constituted and whose membership will comprise the Seller, the

Purchaser and every other purchaser in the Scheme’s Register from time to time.

12.2 The Management Association, so constituted, will have perpetual succession and be

capable of suing and being sued in its own name.

12.3 The Management Association will have the powers and duties conferred upon it in

terms of Regulations 7 to 14 of the HDSFRP Regulations, copies of which are annexed

hereto marked Part Six, Annexure 11, which may be varied from time to time as

contemplated in the HDSFRP Regulations.

The creation of a Management Association Constitution

12.4 The Management Association will be and is governed by a constitution, a copy of

which Management Association Constitution is attached marked Part Six, Annexure

4.

12.5 The Seller and/or the Local Authority may require certain amendments to be made to

the Management Association Constitution and in such an event, the Purchaser

hereby irrevocably consents to any such reasonable amendments being made.

Conduct Rules

12.6 Each Occupant is required to conduct himself or herself in a reasonable manner to

respect the other Occupants. To this extent, the Conduct Rules (which include the

day to day House Rules) are designed to set minimum standards and objectives. The

initial Conduct Rules are attached marked Part Six, Annexure 3.

Automatic Membership to the Association

12.7 The Purchaser will ipso facto, meaning automatically, as a result of the acquiring the

Life Right, in terms of the HDSFRP Regulations, be and become a Member of the

Management Association upon payment and transfer of the Life Right into his or her

name and will remain a Member for so long as he or she is the owner of the Life Right.

Adherence to the Management Association Constitution and the Conduct Rules

12.8 The Purchaser hereby undertakes to abide by the Management Association

Constitution and the Conduct Rules as may be imposed from time to time, with

compliance with such Conduct Rules being obligatory for all Occupants. This Clause

is a benefit given by the Purchaser in favour of the Seller and a third party, namely the

Management Association, and will be binding by and between the Management

Association and the Purchaser and his or her successors-in-title and the Seller, on

behalf of the Management Association and itself, hereby, to the extent necessary,

accepts such benefit.


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Purchaser Responsible for Occupants

12.9 The Purchaser will, at all times be accountable, liable and/or responsible to the Seller

and the Management Association for every Occupant having the use and

enjoyment of the Life Right and, to this extent, the Purchaser must and will procure

and ensure that every Occupant having the use and enjoyment of the Life Right

adheres to and complies with the Management Association Constitution and the

Conduct Rules. For purposes of clarity, the word “Occupant” used in this Clause

specifically refers to those persons to whom the Purchaser himself or herself has

allowed the use and enjoyment of the Life Right (including the Unit) granted and

acquired pursuant to this Agreement.

12.10 The Purchaser hereby irrevocably indemnifies and undertakes to indemnify and make

good, to the Seller and/or the Management Association, all losses and damages

caused by any Occupant (occupying under the Life Right herein provided for) failing,

neglecting and/or refusing to abide by and comply with the Management

Association Constitution and the Conduct Rules.

Levies

12.11 By virtue of the Act, the HDSFRP Regulations and the Purchaser’s membership of the

Management Association, the Purchaser will be obliged to and must make payment

of the Levies to enable the Management Association to pay for the cost of and/or

maintain the Land, the Scheme, the Services, the Common Services, the Communal

Facilities and to cover its administrative costs.

Deeming Provision

12.12 The Purchaser, by signing this Agreement, is deemed to:

12.12.1 have agreed to all the terms and conditions as contained in the Management

Association Constitution and the Conduct Rules (and any amendment thereto);

and

12.12.2 to be bound to the Management Association Constitution and the Conduct

Rules (and any amendment thereto); and

12.12.3 have ratified all past and future appointments made by the Seller for and on

behalf of the Management Association, including but not limited to the

appointment of the Managing Agent.

13 MANAGEMENT OF THE SCHEME

13.1 The affairs of the Scheme will be managed by the Managing Agent in accordance

with the provisions of the Management Agreement, the Act, the HDSFRP Regulations,

the Management Association Constitution and the Conduct Rules.

13.2 The Managing Agent will be responsible to provide the Services to the Occupants in

accordance with the Management Agreement and, where applicable, as

contemplated and provided for herein. The Seller, without any obligation on itself,

hereby accepts, on behalf and under authorisation of and instruction by the

Managing Agent, such rights, duties, obligations and responsibilities as are herein

granted to and/or imposed upon the Managing Agent.

13.3 The Managing Agent will have the powers, duties and obligations provided for in the

Act, the HDSFRP Regulations, the Management Association Constitution and the

Conduct Rules, and where any such powers vest in the Purchaser, the Purchaser, by

his or her signature hereto, is deemed to have irrevocably ceded and assigned the

such powers to the Managing Agent, where such powers, duties and obligations

relate to the management of the Scheme.


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13.4 The Management Association will be responsible to elect the Trustee Committee

whose function will be to communicate and co-operate with the Managing Agent

regarding any reasonable request and complaints by Occupants of the Scheme.

13.5 The Trustee Committee will meet bi-monthly with the Managing Agent’s duly

appointed on-site manager and every alternate month with the Managing Agent or

as otherwise required or agreed from time to time.


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VII : TERMINATION

14 TERMINATION OF THE LIFE RIGHT

Unless otherwise agreed to in writing by the Seller, the Purchaser’s Life Right, herein

granted and acquired, and his or her right of occupation will be terminated upon the

happening of any one of the following events:

14.1 by mutual agreement between the Parties that such Life Right be terminated; or

14.2 upon cancellation of this Agreement by the Seller in terms of Clause 15 (breach) or by

the Purchaser exercising his or her rights in Law pursuant to a material breach by the

Seller; or

14.3 where the Purchaser’s state of health is such that, in the opinion of and upon the issue

of a certificate by the Managing Agent’s medical practitioner, in consultation with

the Purchaser’s medical practitioner, the Purchaser is too ill to be adequately cared

for in the Scheme; or

14.4 where, pursuant to Clauses 11.28 and 11.29, the Purchaser, Spouse and/or Third Party

Occupant, as the case may be, is to be accommodated in an Assisted Care Unit and

has acquired such Assisted Care Unit; or

14.5 upon the Seller or the Managing Agent being furnished with a medical certificate as

contemplated and provided for in Clause 16 certifying the Occupant to be mentally

or physically infirm and the Occupant vacating the Unit as a consequence thereof,

subject always to the provisions of Clause 18; or

14.6 upon the Purchaser giving the Managing Agent 3 (three) calendar months written

notice to terminate his or her rights and vacating the Unit; or

14.7 upon the death of the Purchaser or in the event of Joint Purchasers, the death of the

surviving Joint Purchaser, subject always to the provisions of Clause 18; or

14.8 upon the death of the Third Party Occupant or surviving spouse of the Third Party

Occupant if and to the extent he or she has acquired the right of occupation,

subject always to the provisions of Clause 18; or

14.9 by the giving of such reasonable notice, as the circumstances require, by the

Managing Agent to the Purchaser, where the Purchaser repeatedly fails, neglects or

refuses to comply with the Conduct Rules to the extent that the Managing Agent, in

its Discretion, after consulting with the Trustee Committee, is of the reasonable opinion

that the Occupant is a nuisance and/or a danger to other Occupiers or residents in

the Scheme.

15 BREACH

15.1 Should the Purchaser breach the terms of this Agreement by failing to pay the Levies

or rentals for a period totalling 3 (three) months and should the Purchaser remain in

breach after having received 30 (thirty) calendar days written notice to remedy such

breach, the Seller will be entitled to cancel this Agreement and require the Occupant

to forthwith vacate the Unit and the Land.

15.2 Should the Purchaser fail, neglect and/or refuse to make any other payment or

payments on due date or breach any other term or provision of this Agreement and

fail to make such payment or remedy such breach within 14 (fourteen) calendar days

of the posting of a letter addressed by pre-paid registered post to the Purchaser, at


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his or her chosen domicilium citandi et executandi, meaning the chosen residential

address other than the Unit, the Seller will have the right, but not the obligation, to

claim specific performance or cancel this Agreement summarily by directing a letter

addressed to the Purchaser at the said domicilium by pre-paid registered post or

hand delivery, notifying the Purchaser of such cancellation.

15.3 Should the Occupant breach any other term or provision of this Agreement and fail

to remedy such breach within 14 (fourteen) calendar days of the posting of a letter

addressed by pre-paid registered post or hand delivery to the Purchaser, at his or her

chosen domicilium citandi et executandi, meaning the chosen residential address

other than the Unit, the Seller will have the right, but not the obligation, to claim

performance or cancel this Agreement summarily by directing a letter addressed to

the Purchaser at the said domicilium by pre-paid registered post or hand delivery,

notifying the Purchaser of such cancellation.

15.4 If and to the extent any of the events contemplated and provided for in Clauses 15.1

to and including 15.3 come about, the Purchaser will be liable for any damages

suffered by the Seller by reason of any cancellation, as well as the cost of eviction

from the Unit and the costs associated with repossession thereof by the Seller.

Alternatively, the Seller will be entitled, in its Discretion, to take such action forthwith

against the Purchaser for the recovery of the full Purchase Price (if it or any part

thereof is outstanding), together with any other amounts payable by the Purchaser

under this Agreement.

15.5 In the event the Seller or the Managing Agent instructs an attorney to take any action

against the Purchaser or an Occupant, the Purchaser will be liable for and must pay

all such attorney's fees and costs (including collection charges and advocate’s fees),

on the scale as between attorney and own client.

15.6 For purposes of clarity and notwithstanding any other Clause, to the extent the

Purchaser is an Occupier and is in occupation of the Unit, it will not be necessary to

send any notice, letter, correspondence or court process, as the case may be, by

registered post or mail to the Purchaser’s chosen domicilium citandi et executandi, as

same can be hand delivered to the Unit, in which case it will be deemed to be

sufficient delivery for the purposes of this clause 15.

16 DEATH OR INABILITY TO TAKE OCCUPATION

In the event of the Purchaser passing away prior to the Occupation Date or being

certified as mentally or physically infirm in terms of Clause 14, prior to occupation,

then this Agreement will be deemed to be null and void ab initio, meaning this

Agreement never had any existence, except for and in the event of there being a

Joint Purchaser, Spouse or Third Party Occupant then, at the election of the Joint

Purchaser, Spouse or Third Party Occupant, as the case may be, the provisions of this

Agreement will apply mutatis mutandis, meaning taking into account the necessary

changes, as if occupation had in fact been taken, subject to the Seller receiving

written confirmation of such election, at its domicilium, within 21 (twenty one)

calendar days of the Purchaser’s death.

17 THIRD PARTY OCCUPANT

17.1 In the event of the Purchaser –

17.1.1 having nominated a Third Party Occupant; or

17.1.2 not having nominated a Third Party Occupant and being married at the time of

his or her death or having occupied the Unit, together with a person to whom he

or she was not married (“Joint Occupant”), and his or her said Spouse or Joint

Occupant having been in continuous occupation (being more than 6 (six)


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months) of the Unit with him or her at the time of his or her death or he or she

having been certified in terms of Clause 14 and having vacated the Unit

pursuant thereto,

such Third Party Occupant or Spouse or Joint Occupant will be entitled to remain in

occupation of the Unit for the duration of his or her lifetime, subject, at all times to the

terms, conditions and provisions herein contained applying mutatis mutandis to the

Third Party Occupant, Spouse or Joint Occupant, with the said Third Party Occupant,

Spouse or Joint Occupant being bound and obliged to meet all the commitments

and obligations as imposed upon the Purchaser in terms of this Agreement, save and

except that the rights as contained in this Clause may not be passed on to or be

acquired by any other person to whom such Third Party Occupant, Spouse or Joint

Occupant may become married, without the written consent of the Seller and the

Managing Agent first being had and obtained.

17.2 In the event of the provisions of Clause 17.1 applying upon the death or the medical

certification of the Purchaser, no Refund or payments will be due to the Purchaser’s

estate in terms of Clause 18, in which instance the Seller will only have an obligation

to the Third Party Occupant, the Spouse or Joint Occupant, as the case may be, or to

his or her estate.

17.3 The rights and obligations of the Third Party Occupant, created in this Clause, are

subject to such Third Party Occupant having counter signed this Agreement (such

counter signature being deemed to have signified the acceptance by the Third Party

Occupant of the benefits and to be bound by the obligations contained herein) or

the Purchaser, the Third Party Occupant, the Seller and the Managing Agent having

signed an addendum to this Agreement in which the Third Party Occupant accepts

the benefits and agrees to be bound by the obligations as contained in this

Agreement.

18 PROCEDURE ON TERMINATION

Seller’s Right of Election

18.1 Upon termination of the Life Right, the Seller may elect, in its Discretion, to submit the

right of occupation for re-grant or to retain such right for its own purposes.

18.2 Should the Seller elect to:

Re-grant

18.2.1 submit the Life Right for re-grant, it must do whatever is reasonably necessary to

obtain the highest possible new purchase price from a new purchaser, provided,

at all times, such new purchase price will be within the Discretion of the Seller

whose decision thereon will be final and no person, including the Purchaser or his

or her estate, will have any claim whatsoever against the Seller arising out of it

having accepted or fixed any particular amount as the new purchase price; or

Retain the right of occupation

18.2.2 not submit the Life Right for re-grant, but to retain such right for its own benefit or

use, the value attributable to such right will be as determined in Clause 18.3.

Valuation

18.3 The market value of the Life Right where the Seller elects to retain such right will be

either:


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18.3.1 the value as may be agreed, in Writing, by and between the Seller and the

Purchaser or his or her estate (“the Agreed Value”); or failing such agreement

18.3.2 the value as determined by a valuer appointed by the Chairman of the Southern

Branch of the South African Institute of Valuers, provided that such valuer is an

independent registered professional valuer (without qualification) of at least 10

(ten) years standing (“the Determined Value”),

with the Agreed Value and/or the Determined Value, as the case may be, being

included, for the purposes of this Clause 18, in the definition of “the New Purchase

Price”, which is the purchase price which the Seller is able to sell the Life Right to a

new purchaser.

Refund

18.4 The Purchaser (including such other person contemplated and provided for herein) or

his or her estate, as the case may be, will, upon termination, be entitled to an amount

equivalent to the Purchase Price:

18.4.1 plus 35% (thirty five percent) of the difference between the New Purchase Price

and the Purchase Price (only in the event of an increase in value), less the

Adjustments contemplated and provided for in Clause 18.5; or

18.4.2 less 35% (thirty five percent) of the difference between the Purchase Price and

the New Purchase Price (only in the event of a decrease in value), less the

Adjustments contemplated and provided for in Clause 18.5.

Adjustments

18.5 The Seller will be entitled and authorised to deduct from the Refund, in terms of

Clause 18.4,:

18.5.1 any amount due to the Seller, the Management Association and/or the

Managing Agent, as the case may be, by the Purchaser or any Occupant or his

or her estate, including arrear Levies, rentals, general charges, costs, expenses

and tabs, damages or the like; and

18.5.2 the reasonable cost of repairing and restoring the interior of the Unit to its original

condition as at the Occupation Date; and

18.5.3 an agent’s commission of 3% (three percent) of the New Purchase Price, which

commission is payable by the Purchaser or his or her estate, as the case may be;

and

18.5.4 an administration fee not exceeding 0.25% (nought point two five percent) of

the New Purchase Price; and

18.5.5 reasonable legal fees, if applicable; and

18.5.6 the VAT on the New Purchase Price, if applicable.

Payment

18.6 The Seller will pay the Purchaser (including such other person contemplated and

provided for herein) or his or her estate, as the case may be, the Refund, less any and

all Adjustments,:

18.6.1 in the event of the Seller electing to re-grant the Life Right, within 10 (ten)

calendar days of the later of the Seller receiving the New Purchase Price, in full,


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from the new purchaser and the said Life Right to the Unit being re-allocated to

the new purchaser, as the case may be, subject to the Life Right so re-granted

being acquired by the new purchaser within 12 (twelve) months of the date of

termination; or

18.6.2 in the event of the Seller electing not to re-grant the Life Right, within 30 (thirty)

calendar days of the Agreed Value or the Determined Value having been

agreed or determined, as the case may be.

No Interest

18.7 No interest will be paid by the Seller on any amount due to the Purchaser or his or her

estate, other than as specifically stated herein.

Binding on successors-in-title

18.8 The provisions set out in this Clause 18 will be binding on the heirs, executors,

administrators, assigns and trustees (in the event of an insolvency or sequestration) of

the Purchaser and his or her successors-in-title.

Binding on Spouse or Third Party Occupant

18.9 The provisions set out in this Clause 18 will apply mutatis mutandis to the Spouse or

Third Party Occupant in the event that the Life Right is transferred to the Spouse or

Third Party Occupant pursuant hereto.

Possession and Vacant Occupation

18.10 Upon termination of the Life Right as contemplated and provided herein, the Seller

will be entitled to resume and the Purchaser will be obliged to give up possession and

give vacant occupation of the Unit and the Land, save as may otherwise be

provided for herein.

18.11 For so long as any property of the Occupant remains within the Unit, the Purchaser will

be deemed, unless otherwise agreed to in writing by the Seller, the Management

Association and the Managing Agent, to have not vacated the Unit and the Levy will

remain payable by the Purchaser or his or her estate, as the case may be, until such

time as all movable property therein has been removed.

18.12 The Seller, the Management Association and/or the Managing Agent may, but are

not obliged to, attend to the removal of any goods of whatsoever nature situated in

the Unit and, in that event should it or they incur storage or other costs, it or they will

be entitled to recover such costs and expenses from the Purchaser or his or her estate

and to that end may deduct such costs and expenses from any amount due to the

Purchaser after termination as contemplated in this Clause 18.

18.13 In the event this Agreement is terminated in terms of Clause 14.4 and pursuant to a

registered medical practitioner certifying that the Purchaser, Spouse or Third Party

Occupant is no longer capable of caring for themselves in their Unit or in the Assisted

Care Units, as the case may be, and the Purchaser, the Spouse or Third Party

Occupant is to be or has already been admitted permanently to the Health Care

Facility, then:

18.13.1 they will continue to have the rights and obligations in respect of the Health Care

Facility as are contained herein, despite termination of the Agreement;

18.13.2 specifically, they will continue to be responsible for the payment of the Health

Care Levy at the rate stipulated in Part Four, Section E, as amended from time to

time, for so long as they remain a resident patient of the Health Care Facility;


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18.13.3 any amount due to them pursuant to this Clause 18 will not be paid to them, but

will be held by the Managing Agent on their behalf in an attorney’s trust account

for their benefit in an interest bearing account for so long as they remain a

resident patient of the Health Care Facility;

18.13.4 the capital and interest in the said attorney’s trust account will be used to pay for

any medical or specialised treatment or care that they require and also used to

subsidise the Health Care Levy in the event that their financial resources are

insufficient to meet these expenses, with the Purchaser’s signature hereof being

deemed to be an authorisation and instruction to the attorney holding such

funds to effect such payments; and/or

18.13.5 upon the last surviving of the Joint Purchasers, the Spouse or Third Party

Occupant or Joint Occupant permanently departing from the Health Care

Facility, the remaining balance held in the attorney’s trust account will be repaid

to the Purchaser, the Spouse or Third Party Occupant or Joint Occupant or to

their estates, as the case may be.


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VIII : GENERAL

19 FORUM SELECTION

English language

19.1 The Parties select and elect the English language as the language of this Agreement

and by which they are to communicate with one another.

19.2 All notices issued pursuant to and/or in terms of this Agreement, as well as all legal

actions and court and/or other proceedings will be written and conducted in the

English language.

Choice of Law

19.3 This Agreement and the rights and obligations of the Parties will be governed by and

construed in accordance with the Laws of South Africa, save where there is a conflict

between the Laws of and as applied in the province of the Western Cape and any

other province, the Laws as applied in the province of the Western Cape will prevail.

Jurisdiction

19.4 The Parties irrevocably submit and consent to the exclusive jurisdiction of the Courts of

South Africa and, in particular, the Western Cape High Court, Cape Town (or its

successor in title), in respect of any claim (including any dispute or difference) arising

out of and/or in connection with this Agreement.

Enforcement

19.5 For the purposes of enforcing any claim and/or order made:

19.5.1 by any arbitration award or an Independent Expert; and/or

19.5.2 by any competent court,

the Parties, to the extent necessary and applicable to give effect to the

aforementioned, hereby irrevocably submit to the non-exclusive jurisdiction of the

High Court of South Africa, Western Cape High Court, Cape Town, to apply for such

order to be enforced or claim payment, as the case may be.

20 NOTICES

20.1 The Parties choose as their contact or service addresses for all purposes under this

Agreement, whether in respect of court process, notices or other documents or

communications of whatsoever nature, the addresses set out in Part Four, Sections A

or B, as the case may be, save, to the extent and where the Purchaser takes

occupation of the Unit, the Unit will be and become its domicilium.

20.2 Any notice or communication required or permitted to be given in terms of this

Agreement will be valid and effective only if in writing and in English, and which wil l

include without limitation notice by telefax or electronic-mail.

20.3 Either Party may by notice to the other Party change the physical address chosen as

its service address vis-à-vis that Party to another physical address where postal

delivery occurs or its postal address or its telefax number or e-mail address, provided

that the change will only become effective:


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20.3.1 if the notification is addressed to and is received by the addressee Party’s duly

authorised and designated representative; and

20.3.2 on the 10th (tenth) business day from the receipt of the notice by the addressee.

20.4 Any notice to a Party -

20.4.1 sent by prepaid registered post in a correctly addressed envelope to the

designated contact person at an address chosen as its service address to which

post is delivered will be deemed to have been received on the 10th (tenth)

business day after posting (unless the contrary is proved); or

20.4.2 delivered by hand to the designated contact person during ordinary Business

Hours at the physical address chosen as its service address will be deemed to

have been received on the day of delivery; or

20.4.3 sent by telefax addressed to the designated contact person to its chosen telefax

number, will be deemed to have been received on the date of despatch (unless

the contrary is proved); or

20.4.4 sent by electronic mail to the designated contact person to its chosen e-mail

address, will be deemed to have been received on the business day following

the date of transmission (unless the contrary is proved).

20.5 Notwithstanding anything to the contrary herein contained, a written notice or

communication actually received by a Party will be an adequate written notice or

communication to it notwithstanding that it was not sent to or delivered at its chosen

service address.

21 MISCELLANEOUS

VAT

21.1 Unless the context of the Clause concerned clearly indicates that the amount

concerned is inclusive of VAT, all amounts provided for in this Agreement will be

exclusive of VAT (if applicable) and any VAT chargeable in respect of matters giving

rise to such payments (or other consideration) will be added to such payment or

other consideration and paid in addition by the Purchaser.

21.2 All or any VAT arising from the supply of any goods and/or services by the Seller or the

Managing Agent to the Purchaser in terms of this Agreement will become due for

payment and will be paid by the Purchaser forthwith upon presentation of the

relevant VAT invoice in the form and containing the particulars prescribed by

Legislation, subject to the payment dates prescribed herein.

21.3 In the event that VAT is chargeable on any supply under this Agreement for a

consideration not consisting or not wholly consisting of money the person to whom

the supply is made will pay such VAT to the person by whom the supply is made on

the same date as such VAT would be payable if the consideration in relation to which

it is chargeable was a monetary consideration or if there is no such date within 10

(ten) business days of the date upon which the supplier of the services and/or goods

has served a written demand on the person to whom the supply is made in respect of

such VAT either consisting of or accompanied by a VAT invoice in the prescribed form

and manner.

21.4 Any dispute which may arise as to the liability for and/or payment of VAT or the

amount thereof will be referred to the Auditors for the time being (acting as

Independent Experts) for decision and their decision will be final and binding as

between the Parties and carried into effect.


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Warranty of Authority

21.5 The representatives of the Parties, who act as signatories herein, warrant their

authority to sign for and behalf of the Parties and bind the Parties accordingly.

Entire Agreement

21.6 This Agreement constitutes the complete and exclusive written expression of the terms

of the agreement between the Parties and supersedes all prior or contemporaneous

proposals, oral or written, understandings, representations, conditions, warranties,

covenants and all other communications between the Parties relating to the subject

matter of this Agreement, including brochures, marketing and/or advertising material.

21.7 This Agreement may not in any way be explained or supplemented by a prior or

existing course of dealings between the Parties pursuant to this Agreement or

otherwise.

Variations, Waivers & Indulgences

21.8 No variation of, addition to, consensual cancellation of or waiver of any right arising in

terms of this Agreement (including this Clause) will be of any force or effect unless it is

reduced to writing and signed on behalf of or by the Parties' respective duly

authorised representatives.

21.9 No failure of any Party to exercise, and no delay by it in exercising, any right, power or

remedy in connection with this Agreement (each a “Right”) will operate as a waiver

of that Right, nor will any single or partial exercise of any Right preclude any other or

further exercise of that Right or the exercise of any other Right. The Rights provided in

this Agreement are cumulative and not exclusive of any other Rights (whether

provided by Law or otherwise). Any express waiver of any breach of this Agreement

will not be deemed to be a waiver of any subsequent breach. Likewise, one or more

waivers of any right, obligation or default will not be construed as a waiver of any

subsequent right, obligation or default.

21.10 Any liability to any Party under this Agreement may, in whole or in part, be released,

compounded or compromised or time or indulgence given by that Party in its

Discretion as regards any Party under such liability without in any way prejudicing or

affecting its rights against the other Party under the same or a like liability, whether

joint and several or otherwise.

Matters to be agreed

21.11 Where it is specified in this Agreement that certain matters are to be agreed between

the Parties, failure to reach agreement in respect of such matter will not affect the

validity and enforceability of the whole or any part of this Agreement unless otherwise

provided for.

Agreement Personal

21.12 This Agreement is personal to the Parties and whilst the Purchaser may not assign or

otherwise transfer his or her rights and obligations unless otherwise agreed to in writing

by the Seller or specifically provided for elsewhere in this Agreement, the Seller may

and will be entitled, in its Discretion, at any time, to assign its rights and obligations

herein.

Not a Partnership

21.13 Nothing in this Agreement will be deemed to constitute a partnership as between the

Parties, nor constitute any Party as an agent of the other Party for any purpose

whatsoever except as expressly provided for in this Agreement.


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Conflict & Compliance with the Law

21.14 Insofar as any of the provisions contained in this Agreement are in conflict with any

Laws of South Africa for the time being in force, such provisions will be deemed to be

amended only to the extent necessary to comply with the provisions of such Laws.

21.15 Each Party will ensure that it and its activities will, at all times, comply with the all

applicable Laws and the Legislation.

Severability

21.16 If any provision of this Agreement is held to be invalid, illegal or unenforceable by a

court of competent jurisdiction or arbitrator, the validity, legality and enforceability of

the remaining provisions will in no way be affected or impaired thereby, and this

Agreement will be of full force and effect. Any provision in this Agreement which is or

may become illegal, invalid or unenforceable will be ineffective to the extent of such

prohibition or unenforceability and will be treated as pro non scripto (meaning as if

not written) and severed from the balance of this Agreement, without invalidating the

remaining provisions of this Agreement or affecting the validity or enforceability of

such provision.

Enforcement Costs

21.17 Notwithstanding and in addition to any other provision herein contained, in the event

of any Party incurring any costs as between attorney or advocate and his own client

in:

21.17.1 recovering and/or attempting to recover any amount due to it; and/or

21.17.2 having to enforce any of its rights under this Agreement (“the Compliant Party”),

the other Party (“the Non-compliant Party”) considers itself bound and agrees and

separately undertakes to pay the Compliant Party if it is found by the Court to be

successful in bringing such action and/or proceedings to recover the amount due

and/or enforce its rights for the full amount of the costs thus incurred, including all

legal and professional fees (whether according to tariff or otherwise),

accommodation, travel and out of pocket expenses.

Time of the Essence

21.18 Time will be of the essence for all matters and/or issues arising out of and/or

contemplated or provided for in this Agreement, both as regards any dates, times

and periods mentioned and as regards any dates, times and periods that may be

substituted for them in accordance with this Agreement or by agreement in writing

between the Parties.

Undertaking to give effect to the Agreement

21.19 The Parties will respectively cause all resolutions to be passed and undertake to sign

all such other documents and do such other things as will be necessary or requisite to

give proper and due effect to the terms of this Agreement, or any other matter arising

therefrom, according to its intent and purpose.

21.20 Each Party will at its own cost cause the necessary returns and information to be

forwarded to the applicable Responsible Authority having jurisdiction recording the

various consequences arising out of this Agreement as may specifically apply to that

Party.


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21.21 The Parties will, and will use their respective reasonable endeavours to procure that

any necessary third parties will do, execute and perform all such further deeds,

documents, assurances, acts and things as any one of the Parties may reasonably

require to carry the provisions of this Agreement into full force and effect.

Contracts with other purchasers

21.22 Without detracting from the provisions of this Agreement, the Seller has and will have

the right, at any time in the future and from time to time, to enter into other similar or

modified contracts with other purchasers in its Discretion.

21.23 No other contract concluded with another purchaser which differs completely,

partially or essentially from this Agreement will be deemed to infringe upon this

Agreement, and the Purchaser will not be entitled to rely on novation, tacit consent

on the part of the Seller and/or any other Law entitling the Purchaser to amend this

Agreement.

Surety & Co-principal debtor

21.24 In the event of a company, close corporation or trust being the Purchaser herein, the

signatory on behalf of such company, close corporation or trust, by virtue of his

signature hereto binds himself as surety and co-principal debtor, jointly and severally

with the company, close corporation or trust for the fulfillment of all the terms and

conditions of this Agreement.

Counterparts

21.25 This Agreement may be executed in more than one counterpart, each of which will

be deemed to constitute an original, and will become effective when one or more

counterparts have been signed by both of the Parties and such a counterpart (so

signed) has been delivered to each of the Parties.

21.26 Any counterpart of this Agreement in facsimile form will be conclusive evidence of

the original signature and will be as effective as the counterparts in original form

showing the original signatures.

Cost of the Agreement

21.27 The Seller will be responsible for the legal costs of drafting, redrafting and preparing

this Agreement, together with sundry attendances incidental to the aforegoing.

21.28 The Purchaser will be responsible for his or her own legal costs in consulting an

attorney, professional or other adviser on and/or in respect of this Agreement.

Other Costs

21.29 The Purchaser will be responsible for and must and will pay the Seller and the

Managing Agent the costs incidental to the implementation of this Agreement,

including the administrative cost of transferring the Life Right and delivering the Unit to

the Purchaser, the Spouse or Third Party Occupant, the cost of managing the Deposit,

the Balance of the Purchase Price and interest thereon, the Deposit Advantage

Guarantee, if applicable, and compliance with FICA, the Act and the HDSFRP

Regulations.

Agent’s Commission

21.30 The Seller will pay the Agent the Commission reflected in Part Four, Section I within 5

(five) business days of payment by the Purchaser of the full Purchase Price. To the

extent the Purchaser fails to carry out his or her obligations in terms of this Agreement,


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then the Seller will no longer be responsible to pay the Agent any commission.

21.31 Should the Purchaser fail to carry out his or her obligations in terms of this Agreement,

the Purchaser will then be responsible for and must and will pay the Agent the

Commission reflected in Part Four, Section I within 5 (five) business days of being

called upon, in writing, by the Agent to pay such Commission.

21.32 The Purchaser warrants that the Agent is the only agent who introduced him to the

Scheme and was thus the effective and sole cause of the transaction contemplated

and provided for herein.

Documents to be signed by the Purchaser

21.33 The Purchaser must and will, simultaneously with signature of this Agreement, sign the

Client Investment Mandate if and to the extent the Purchaser is not making use of the

Deposit Advantage Guarantee.

FICA Documentation

21.34 The Purchaser must and will, within 5 (five) calendar days of signing this Agreement,

provide the Agent or the Seller’s Attorneys with the FICA Documentation.

- - - o 0 o - - -


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Part Six – Annexure 1


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LIFE RIGHTS AGREEMENT - Summerley Court · LIFE RIGHTS AGREEMENT Seller/Developer Gemini Moon...

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Transcript of LIFE RIGHTS AGREEMENT - Summerley Court · LIFE RIGHTS AGREEMENT Seller/Developer Gemini Moon...