MEMORANDUM OF INCORPORATION OF A NON-PROFIT COMPANY … · 2019-09-16 · pertaining to the...

Pine Haven Country Estate: Memorandum of Incorporation: of 43

MEMORANDUM OF INCORPORATION OF A NON-PROFIT COMPANY INCORPORATED IN

TERMS OF SECTION 13(1) OF THE COMPANIES ACT 71 OF 2008

NOT HAVING A SHARE CAPITAL

THE HOMEOWNERS ASSOCIATION OF PINEHAVEN COUNTRY ESTATE

Company Registration Number: 2003/005340/08


Table of Contents

1. INTERPRETATION, PRELIMINARY AND DEFINITIONS: ................................................................ 4

2. NON-PROFIT COMPANY: ............................................................................................................... 8

3. CONFLICTS WITH THE MEMORANDUM OF INCORPORATION: .................................................. 8

4. PURPOSE AND OBJECTS OF THE COMPANY: ............................................................................. 8

5. POWERS OF THE COMPANY: .......................................................................................................10

6. MEMBERS: .....................................................................................................................................13

6.1 GENERAL ............................................................................................................................... 13

6.2 VOTING MEMBERS ................................................................................................................ 14

7 DIRECTORS ...................................................................................................................................15

7.1 COMPOSITION AND ELECTION ............................................................................................ 15

7.2 REMUNERATION ................................................................................................................... 16

7.3 VACATION, REMOVAL AND/OR DISQUALIFICATION .......................................................... 17

7.4 PERSONAL INTERESTS ........................................................................................................ 18

7.5 RETIREMENT ......................................................................................................................... 19

7.6 POWERS AND DUTIES .......................................................................................................... 20

7.7 MEETING AND COMMITTEE PROCEDURES ........................................................................ 23

7.8 VALIDITY OF ACTS OF DIRECTORS AND COMMITTEES .................................................... 24

8 MANAGER ......................................................................................................................................24

9 RULES: ...........................................................................................................................................26

10. FINANCE: ........................................................................................................................................27

10.1 MANAGEMENT ACCOUNTS .................................................................................................. 27

10.2 BUDGET ................................................................................................................................. 28

10.3 LEVIES.................................................................................................................................... 28

10.4 OTHER RECOVERIES ........................................................................................................... 30

10.5 COMPANY RECORDS ........................................................................................................... 31

10.6 ANNUAL FINANCIAL STATEMENTS AND INTERIM REPORTS ............................................ 31

10.7 AUDITORS .............................................................................................................................. 32

10.8 RESERVES ............................................................................................................................. 32

10.10 TENDERS ............................................................................................................................... 34

11 MAINTENANCE: .............................................................................................................................34

12 AMENITIES: ....................................................................................................................................35

13 STANDS ..........................................................................................................................................35

13.1 RESTRICTIONS ON TRANSFER OF FREEHOLD RESIDENTIAL STANDS ............................. 35

14 MEETINGS OF MEMBERS: ............................................................................................................36


GENERAL .......................................................................................................................................... 36

14.2 PROCEEDINGS AT MEETINGS OF MEMBERS .................................................................... 37

14.3 VOTES OF MEMBERS / PROXY ............................................................................................... 39

15 NOTICES: .......................................................................................................................................40

16 INDEMNITY: ....................................................................................................................................40

17 WINDING-UP: .................................................................................................................................41

17 ALTERNATIVE DISPUTE RESOLUTION: .......................................................................................41


1. INTERPRETATION, PRELIMINARY AND DEFINITIONS:

In this Memorandum of Incorporation, unless the context otherwise requires:

1.1. “The Act” means the Companies Act, 71 of 2008, as amended or any Act which replaces it,

regulations promulgated in terms thereof and any other statutory regulation or any ordinance

as amended from time to time in force concerning Non-Profit Associations, or any part thereof

and necessarily affecting the Company;

1.2. “The Company” means the Pinehaven Country Estate Homeowners Assocation, being a non-

profit company duly registered and incorporated in terms of section 13(1) of the Act and with

registration number 2003/005340/08;

1.3. “Alienate” or “Alienated” means the transfer of any portion of land or part thereof, and without

derogating from the generality of the aforementioned, includes the transfers of any rights of

whatsoever nature in respect of any property, either voluntarily or involuntarily and includes by

way of sale, exchange, donation, deed, intestacy, will, cession, court order or insolvency,

irrespective of whether such alienation is subject to any suspensive or any resolutive condition

or court order or insolvency;

1.4. “Erf” means a subdivided or consolidated portion of land whether residential or common areas

on the Property registered or capable of being registered in the name of any person;

1.5. “The freehold residential erven” means a stand registered to a member in terms of a title

deed on which a free standing residential dwelling has been erected or will be erected as

determined by the Company from time to time as per the Rules of the Company;

1.6. “The Land” means any Portion of Land comprising the Property;

1.7. “The Manager” means the Managing Agent, Manager or Managers with specified functions

appointed from time to time in terms of paragraph 11;

1.8. “Members” means the persons referred to in paragraph 6;

1.9. “Memorandum” means this Memorandum of Incorporation of the Company.


1.10. “The Open Spaces” means the Common Areas situated on:

Erf 255, Pinehaven, Mogale City Local Municipality held under Title Deed T62105/2003







Erf 263, Pinehaven , Mogale City Local Municipality held under Title Deed T45212/2003

including but not limited to: parks, fauna and flora areas, internal bays, bicycle trials,

pedestrian trails, traverse areas, Servitude areas, Landscaped areas, private internal streets,

pavements, kerbs, sidewalks, traffic islands, roads, road reserve and other amenities and

open spaces collectively utilised or used by the Members of the Company and situated on the

Property.

1.11. “The Property” means collectively the residential Townships established on the farm Rietvallei

No 679 IQ, known as Pinehaven, demarcated on SG No 5056/2003. “Township” or

“Townships” will have a corresponding meaning.

1.12. “Register” means the Register of Members of the Company to be kept in terms of Section 1(9)

of Schedule 1 of the Act or this Memorandum of Incorporation;

1.13. “Sell” will incorporate donation, any option granted, alienate, granting any pre-emptive right or

Transfer;

1.14. “Section” means any Section as defined in the Sectional Titles Act;

1.15 “Sectional Titles Act” means the Sectional Titles Act, Act 95 of 1986, as amended;

1.16 “Sectional Title Development/ Bodies Corporate” means the development of an Erf in

terms of

and subject the provisions of the Sectional Titles Act;


1.17. “The Republic” means the Republic of South Africa;

1.18. “The Rules” mean the Estate Rules adopted by the Directors in terms of paragraph 9 as they

apply from time to time;

1.19. “Estate" means collectively all the Open Spaces, Freehold Residential Erven, Sectional Title

Developments of the Residential Development on the farm Rietvallei No 679 IQ , or any other

adjacent Land that may be incorporated by the Company into the joint planning, development,

regulation and management thereof

1.20. “Township services” means the shared services required on the Property and maintained by

the Company including, but not limited to, security facilities, a communal gatehouse, roads and

sidewalks, sewerage, water pump station, water reticulation, electrical reticulation, bridges,

fencing and storm water drainage and reticulation; whether such shared services are regulated

by way of registered Servitude or not.

1.21. Reference to Members represented by Proxy shall include Members represented by an Agent

appointed under a General Power of Attorney or Special Power of Attorney and references to

Members present or acting in person shall include Trusts, Corporate Bodies and Corporations.

1.22. Words in the singular number shall include the plural and words in the plural number shall

include the singular and words importing the masculine gender shall include feminine.

1.23. References to persons shall include any natural persons, Partnerships, Firms, Syndicates,

Societies and Bodies Corporate, Close Corporations, Trusts and Companies.

1.24. Reference to notices shall include electronic notices in any form of electronic communication

utilised to issue, present, deliver, serve or record inter alia Circulars, Statutory Notices, Annual

Financial Statements, and any other Reports, Notifications, Proxies and any other information

pertaining to the Company.

1.25. The Memorandum of Incorporation contained in Form CoR15.1E of the Companies

Regulations, 2011, shall not apply to the Company. This Memorandum is in a form unique to

the Company, as contemplated in section 13(1)(a)(ii) of the Act.


1.26. The Company does not elect in terms of section 34(2) of the Act to comply voluntarily with the

provisions of Chapter 3 (Enhanced Accountability and Transparency) of the Act.

1.27. The Company does not elect, in terms of section118 (1)(c)(ii), to submit voluntarily to the

provisions of Parts B and C of Chapter 5 of the Act nor to the Takeover Regulations provided

for in the Act and will be bound by these provisions only to the extent contemplated in section

118(1)(c)(i).

1.28. The Company elects, in terms of section 30(2)(b)(ii)(aa) of the Act, to require an audit of its

annual or other financial statements. The accounts of the Company must be strictly audited, in

accordance with standards which may be no less than those imposed by IFRS Small Business

Compliant auditing or its equivalent.

1.29. If the provisions of this Memorandum of Incorporation are in any way inconsistent with the

provisions of the Companies Act, the provisions of the Companies Act shall prevail and these

provisions of the Memorandum of Incorporation shall be read in all respects subject to the

Companies Act.

1.30. In the interpretation of this Memorandum of Incorporation, regard should be given to the

purpose describing the main business and the main objects of the Company and in particular

the promotion and advancement of the Communal Interests of the Members and Residents of

the Estate.

1.31. Notwithstanding the omission from this Memorandum of Incorporation or any provision to that

effect, the Company may do anything which the Companies Act empowers a Company to do

if so.

1.32. The Company has no share capital.

1.33. The Company shall not be liable for any injury or loss (including loss resulting from Theft) to

any Member, their Visitors, their Employees, their Contractors, their Tenants or bona fide

occupants of their dwellings or any other person, regardless of the cause thereof. In the event

of any injury or loss, Members shall have no Claim and will not be entitled to withhold any

payment due to the Company. Each and every Member shall indemnify the Company, its

Employees, Agents and Lawful Invitees against any Claim by any person(s) arising from any

injury, loss or damage to any person/property.


1.34. This Memorandum of Incorporation may not be altered or amended unless supported by a

Special Resolution adopted by the members of the Company passed at a duly constituted

meeting as envisaged in terms of Section 65(11) of the Act.

2. NON-PROFIT COMPANY:

The Company is a non-profit Company with Members as contemplated in item 4(1) of Schedule

1 to the Act.

3. CONFLICTS WITH THE MEMORANDUM OF INCORPORATION:

3.1. In accordance with the Act, in any instance where there is a conflict between a provision (be it

express or tacit) of this Memorandum of Incorporation and:

3.1.1. an alterable or elective provision of the Act, the provision of this Memorandum of Incorporation

shall prevail to the extent of the conflict and to the extent that the Act allows for the Company

to adopt the conflicting provision; and

3.1.2. an unalterable or non-elective provision of the Act, the unalterable or non-elective provision

of the Act shall prevail to the extent of the conflict.

3.2 Should there be any conflict between the provisions of the Memorandum of Incorporation and

the Rules as adopted by the Board of the Company, the terms, conditions and provisions of

the Memorandum of Incorporation shall prevail.

4. PURPOSE AND OBJECTS OF THE COMPANY:

4.1. The main object of the Company is to carry on, to promote, to advance and to protect, to

manage and to administer the “Communal Interests” of its Members as well as the safety and

welfare of its Members by, including, but not limited to, properly maintaining the Open Spaces

and Township Services, controlling the aesthetic appearance of Land and Dwellings and

buildings erected thereon, controlling traffic, implementing security measures for the controlled


access and egress to and from the Property and to control the conduct of its members and

occupants of the Property.

4.2. The main business of the Company is the promotion, advancing and protecting the interests

as well as the safety and welfare of the Members of the Company by, including, but not limited

to:

4.2.1 Own and maintain the Open Spaces; and

4.2.2 Promoting the “Communal Interests” of Members and Residents of the Estate; and

4.2.3 Ensuring compliance by the Members of the Company to the conditions of the Township

establishments constituting the freehold residential erven on the Estate in terms of Ordinance

15 of 1986 or any Servitudes on the Property; and

4.2.4 Enforcing the Estate Rules created in terms of paragraph 9; and

4.2.5 Administering the general security arrangements and security protocol on the Property,

controlling the access to and exit from the Property, controlling the conduct of members and

occupants on the Property and determining the nature and type of security to be provided

from time to time by the Company to its Members; and

4.2.6 The consideration and providing of written consent to applications for any Subdivision or

Consolidation of an existing erf or the Rezoning or the Notarial Tying of any freehold

residential erven; and

4.2.7 Establish and to stipulate the guidelines for aesthetic, architectural and landscaping of

freehold residential erven, the aesthetic conditions and requirements and the engineering

requirements of dwellings and buildings erected or to be erected on Freehold Residential

Erven, especially in keeping with the character of the Estate, and

4.2.8 Maintaining all internal Township services including, but not limited to all internal roads, storm

water drainage and reticulation, water reticulation, electrical reticulation, sewerage systems

and future developments / improvements of Township services on the Estate; and

4.2.9 To manage, supervise and control the affairs of the Company in terms of this Memorandum

of Incorporation and the Companies Act; and


4.2.10 To preserve the integrity of the open spaces as well as the indigenous fauna and flora in an

ecologically responsible manner; and

4.2.11 Maintain the external boundary wall and security fencing of the property constituting the

Estate and to ensure an acceptable aesthetic appearance thereof; and

4.2.12 Control the character and architectural standards of all buildings, inclusive of but not limited

to residential dwellings, and estate offices, sectional title developments and any other

structures erected or to be erected on the Property; and

4.2.13 Control, manage and approve all building plans of all improvements to be erected within the

boundaries of the Property; and

4.2.14 Ensure that all buildings, inclusive of but not limited to residential dwellings,security buildings,

sectional title developments and estate offices within the Property meet the approved

guidelines and comply with the Rules as adopted by the Board of the Company from time to

time; and

4.2.15 Provide and terminate such services to the Members and Residents, as the Company may

decide upon from time to time; and

4.2.16 Through its Board of Directors devise, adopt and enforce internal financial and internal

controls for the proper administration, good governance and effective management of the

affairs of the Company; and

4.2.17 Levy contributions from its Members of such amounts and so regularly as the Board of the

Company shall determine from time to time in terms of this Memorandum of Incorporation

and ensure an effective Debt Collection Process.

5. POWERS OF THE COMPANY:

5.1. Except to the extent necessarily implied by the Company’s stated objects and this

Memorandum of Incorporation, the purposes and powers of the Company are not subject to

any restriction, limitation or qualification of the legal powers and capacity of the Company, as

contemplated in section 19(1)(b)(ii) of the Act.


5.2. The Company is not subject to any restrictive conditions as contemplated in section 15(2)(b)

or (c) of the Act, or to any prohibitive conditions (as envisaged in section 16 of the Act) in

respect of the amendment or addition to the requirements and provisions contained in this

Memorandum of Incorporation.

5.3. The Company shall apply all of its assets and income, however derived, to advance its objects,

as set out in paragraph 4 above.

5.4. The Company shall not, directly or indirectly, pay any portion of its income or transfer any of

its assets, regardless whether the income or asset was derived, to any person who is or was

an incorporator of the Company, or who is a Member or Director, or person appointing a

Director, of the Company, except as reasonable-

(a) remuneration for goods delivered or services rendered to, or at the direction of the

Company; or

(b) payment of, or reimbursement for, expenses incurred to advance a stated object of the

Company;

(c) as a payment of an amount due and payable by the Company in terms of a bona fide

agreement between the Company and that person or another;

(d) as a payment in respect of any rights of that person, to the extent that such rights are

administered by the Company in order to advance a stated object of the Company; or

(e) in respect of any legal obligation binding on the Company.

5.5. Despite any provision in any law or agreement to the contrary, upon the winding-up or

dissolution of the Company –

5.5.1 no past or present Member or Director of that Company, or person appointing a Director of

that Company, is entitled to any part of the net value of the Company after its obligations

and liabilities have been satisfied; and

5.5.2 the entire net value of the Company shall be distributed to a non-profit Company who takes

over in order to keep it in the collective or to the remaining Members.

5.6. The Company may not: –

5.6.1 amalgamate or merge with, or convert to, a profit company; or


5.6.2 dispose of any part of its assets, undertaking or business to a profit company, other than

for fair value, except to the extent that such a disposition of an asset occurs in the ordinary

course of the activities of the non-profit Company.

5.7. Any proposal to dispose of all or the greater party of the Company’s assets or undertaking,

or to amalgamate or merge with another non-profit company, shall be submitted to the

Voting Members for approval, in a manner comparable to that required of profit companies

in accordance with sections 112 and 113 of the Act, respectively. Sections 115 and 116 of

the Act, read with the changes required by the context, apply with respect to the approval

of a proposal contemplated in this paragraph 5.7.

5.8. The Company shall not provide a loan to, secure a debt or obligation of, or otherwise provide

direct or indirect financial assistance to, a Director of the Company, or to a person related

to any such Director. Provided that paragraphs 5.7 and 5.8 do not prohibit a transaction if

it-

5.8.1 is in the ordinary course of the Company's business and for fair value; or

5.8.2 constitutes an accountable advance to meet legal expenses in relation to a matter

concerning the Company or anticipated expenses to be incurred by the person on behalf of

the Company; or

5.8.3 is to defray the person's expenses for removal at the Company's request; or

5.8.4 is in terms of an employee benefit scheme generally available to all employees or a specific

class of employees.

5.9. This Memorandum of Incorporation is not intended nor shall it be interpreted to restrict or

regulate, or provide for any restriction or regulation of Membership in any manner that

amounts to unfair discrimination in terms of Section 9 of the Constitution of the Republic of

South Africa.

5.10. All expenditures of a Capital nature and which have not been budgeted for by the Directors

in terms of paragraph 10.2 of this Memorandum of Incorporation need to be supported by

an ordinary resolution of the Members of the Company in a General Meeting.


5.11. The Company may not expense in any financial year 15% (fifteen per centum) in excess of

its approved annual budget unless supported by a Special Resolution approved by its

Members in a Special Meeting.

5.12. The Company may not approve any Township Amendment Scheme Application submitted

via applicable legislation to approve the erection of any Sectional Title Scheme on the

Property unless supported by a Special Resolution approved by its Members.

5.13. The Company may not approve the consolidation of two or more of any of the freehold

residential erven or the sub-division of any residential erven unless such approval is

supported by a Special Resolution adopted by the Members of the Company.

6. MEMBERS:

6.1 GENERAL

6.1.1. Membership of the Company is limited to:

6.1.1.1 Any person who is the registered owner of any erven registered in terms of the

Deeds Registry Act, Act 17 of 1937 in respect of Erf 1 up to and inclusive of Erf

249 of Pinehaven Township;

6.1.1.2 A Sectional Title Development registered in terms of the Sectional Title Act, Act 95

of 1986, as amended which is developed in terms of said act on a Erf is a member

of the Association collectively. A Sectional Tile Development will be represented at

any meeting of the Association, by the Chairman or a Vise Chairman of the

Sectional Title Developments, or a representative nominated by the Trustees of

such a Sectional Title Developments.

6.1.1.3 A Sectional Tilte Development shall be deemed to be one (1) Member of the

Company.

6.1.1.4 No other person than a person referred to herein above shall be entitled to be a

Member of the Company.

6.1.1.5 Where two or more persons or a partnership are registered as the co-owners of

any freehold residential erven, all the Registered Owners shall also be deemed to

be one (1) Member of the Company.


6.1.2 When a Member ceases to be the registered owner of a an Erf, he/it/they shall ipso facto

cease to be a Member of the Company.

6.1.4 A Member shall not Sell or otherwise agree to Alienate any freehold residential erven or e of

which he is the Registered Owner, unless it is a Condition of such Agreement to Alienate

that:

6.1.4.1 The person to whom the freehold residential erf is to be Sold to or otherwise to be

Alienated (“the Transferee”) has bound himself in writing, to the satisfaction of the

Company, for the benefit of the Company, to become a Member of the Company

upon Transfer of such freehold residential erf to him, to be bound by the provision

of this Memorandum of Incorporation; and

6.1.4.2 The Registration of Transfer of the freehold residential erf to the Transferee shall

ipso facto constitute the Transferee to become a Member of the Company.

6.1.5 A Member may not resign as a Member of the Company.

6.1.6 The Company shall keep a Register of its Members as prescribed by the Companies Act.

6.1.7 The rights and obligations of Members shall not be transferable and every Member shall

further, to the best of his/her ability, the interests and objects of the Company.

6.1.8 The Member shall pay all Levies, penalties, charges, interest and assessments which may

become payable by such Member in terms of this Memorandum inclusive of the payment of

any charges for electricity, water and other services supplied to any property registered in

the name of said Member.

6.1.9 The Member shall observe and adhere to all rules made by the Company.

6.2 VOTING MEMBERS

6.2.1 The Company shall not have any class of Member and all Members shall be considered

Voting Members unless the Member is:


6.2.2.1 in arrears with payment of Levies due and payable to the Company for a period of

at least sixty (60) days; or

6.2.2.2 persists in a breach of any of the Company/House Rules notwithstanding a written

demand by the Company to rectify such breach; or

6.2.2.3 in arrears with the payment of any fine, penalty, interest or any other payment of

whatsoever nature due and payable to the Company.

6.2.3 Voting Members of the Company shall be those persons who are the registered owners of

Property from time to time, and are not in breach in terms of any payments and the Rules of

the Company.

6.2.4 The date by which determination is made of whether a Member is a Voting Member or a Non-

Voting Member shall be made one day prior to a scheduled General Meeting or a Special

General Meeting. The Non-Voting Members will be informed in writing that they will be unable

to participate in said meeting.

7 DIRECTORS

7.1 COMPOSITION AND ELECTION

7.1.1 The Board of Directors shall at all times consist of a minimum of three (3) to a maximum

of nine (9) Directors.

7.1.2 The Board of Directors are appointed into one of the following portfolios or any other as

determined by the Directors:

7.1.2.1 Finance;

7.1.2.2 Security and Operations

7.1.2.3 Compliance;

7.1.2.4 Aesthetics;

7.1.2.5 Infrastructure;

7.1.2.6 Communications

7.1.2.7 Legal

The Board of Directors may decide to combine the portfolios to suit the abilities, skills,

experience and qualifications of serving directors.


7.1.3 Notwithstanding paragraph 7.1.2 above, nominees for election as Directors of the

Company must be considered in accordance with skills, qualifications, experience and

suitability to fill vacant portfolios.

7.1.4 The appointment of any Director, in terms of this Memorandum, shall be based upon

such person’s qualifications, expertise and experience, in relation to any portfolio which

requires the appointment of a new Director or the re-appointment of an existing Director.

7.1.5 Only a Member of the Company deemed to be in good standing as a Voting Member,

may be elected as a Director. The Members may by Resolution determine that a family

member of a Voting Member may be a suitable candidate as a Director as long as there

is no conflict of interest.

7.1.6 At the first Annual General Meeting following the Special General Meeting where the

Memorandum of Incorporation is approved, two (2) of the existing Directors being part of

the commencement Board of Directors under the new Memorandum of Incorporation,

must resign and are entitled to make themselves immediately available for re-election on

the Board of Directors without prior nomination. Thereafter, each year two (2) of the

longest serving Directors shall stand down as Directors at the Annual General Meeting,

whereupon the Voting Members shall elect or re-elect two (2) suitably qualified Directors.

7.1.7 The Board may appoint any Member to fill any vacancy and serve as a Director on a

temporary basis until the vacancy is filled by election at an Annual General Meeting.

7.1.9 The Company shall ensure that each Director undergoes the necessary training in order

to have full understanding of the fiduciary responsibilities of holding office.

7.2 REMUNERATION

7.2.1 Save as provided for in the Companies Act or resolved by a Meeting of Members of the

Company, a Director shall not directly or indirectly receive any benefit or remuneration

for holding office as a Director of the Company, provided that nothing in this

Memorandum of Incorporation shall prohibit a Director from being reimbursed for any

travelling, accommodation or other expenses incurred by him in the execution of his

duties as Director in or about the business of the Company and which is authorised or

approved by the Board of Directors.


7.2.2 The Directors of the Company cannot contract directly or indirectly with the Company

whether for consulting or any other services.

7.3 VACATION, REMOVAL AND/OR DISQUALIFICATION

7.3.1 A Director shall cease to hold office as such if:

7.3.1.1 He ceases to be a Director by virtue of any of the provisions of the Companies Act

or becomes prohibited from being a Director by reason of any Order made under

the Companies Act; or

7.3.1.2 His estate is sequestrated or he files for a petition for the surrender of his estate or

an Application for an Administration Order, or if he commits an act of Insolvency

as defined in the Insolvency Law for the time being in force, or if he makes any

arrangement or composition with his Creditors generally; or

7.3.1.3 He is found lunatic; or

7.3.1.4 He becomes of unsound mind; or

7.3.1.5 He is removed by a resolution of the Company as provided in the Companies Act;

or

7.3.1.6 He resigns his office by notice in writing to the Company; or

7.3.1.7 A notice removing him from office is signed by Members having a right to attend

and vote at a Meeting of Members who hold more than 51% (fifty-one per centum)

of the total voting rights of all the Members who are at the time entitled so to attend

and to vote and is delivered to the Company or lodged at its Registered Office; or

7.3.1.8 He is otherwise removed in accordance with any provisions of this Memorandum

of Incorporation; or

7.3.1.9 He is absent for 3 (three) consecutive Board Meetings without proper excuse and

apology.


7.3.1.10 His levies remain in arears despite service by the Company of a written notification

upon him, awarding him twenty-one (21) days to bring his arrear levies up to date.

7.3.1.11 Hid failure to rectify nor remedy his actions after three (3) written warnings has

been given to said Director to the remainder of the Board of Directorsd with regards

to conduct mrelating to fsiling to promote, advance and protecting the interests of

the Comapy and its Members.

7.4 PERSONAL INTERESTS

7.4.1 If a Director, or person related or inter-related to the Director, has any business that deals

with the Company, this is deemed as a personal financial interest and must be disclosed

in writing setting out the full nature and extent of the interest, which notice will be

contemplated by the Board and decision taken as to whether to remove said Director

from office or not or to recuse him from participating in certain parts of meetings.

7.4.2 A Director of the Company who has a vested interest in respect of any matter to be

considered at a meeting of the Board, or knows that a related person or related business

has a personal or financial interest in the matter, said Director must:

7.4.2.1 Disclose the interest and its general nature before the matter is considered at the

meeting;

7.4.2.2 Disclose to the meeting any material information relating to the matter and

known to the Director;

7.4.2.3 Disclose any observations or pertinent insights relating to the matter if

requested to do so by the other directors;

7.4.2.4 Must leave the meeting immediately that disclosure has been made;

7.4.2.5 Must not take part in the consideration of the matter except as disclosed

above;

7.4.2.6 Whilst absent from the meeting is to be considered present for the meeting

in as far as ensuring that a quorum is present but may not be regarded as

present for the meeting for the purposes of determining whether a resolution

has sufficient support to be adopted;


7.4.2.7 Cannot execute any document on behalf of the Company in relation to the

matter unless specifically so requested or directed to do so by the Board by

means of a resolution;

7.4.3 If a Director of the Company acquires a personal financial interest in an agreement or

other matter in the Company has a material interest, or knows that a related person has

acquired a personal financial interest in the matter, after the agreement or other matter

has been approved by the Company, the Director must promptly disclose to the Board the

nature and extent of that interest, and the material circumstances relating to the Director

or related person’s interest, and the material circumstances relating to the Director or

related person’s acquisition of that interest.

7.4.4 A decision by the Board, or a transaction or agreement by the Board is valid despite any

personal financial interest of a Director, or person related to the Director, only if:

7.4.4.1 It was approved following disclosure of that interest in the manner contemplated in

paragraph 7.4; or

7.4.4.2 Despite having been approved without disclosure of that interest, it has

subsequently been ratified by an ordinary resolution of the Members following

disclosure of that interest; or, has been declared valid by a court in terms of Section

75(8) of the Act.

7.5 RETIREMENT

7.5.1 A Director retiring at a General Meeting shall retain office until the election of Directors

at that Meeting has been completed.

7.5.2 Retiring Directors shall be eligible for re-election without prior nomination.

7.5.3 No person, other than a Director retiring at the meeting shall, unless recommended by

the Directors, be eligible for election to the office of Director at any General Meeting,

unless:

7.5.3.1 A duly qualified Voting Member has, within the prescribed period of time,

submitted a written nomination proposing a specific qualified person for election

as a Director and the nominee has in writing agreed a willingness to be elected;


7.5.3.2 If no election is made at the General Meeting for the vacancy, and if willing to

continue to act, the retiring Director shall be deemed to have been re-elected;

7.5.3.3 It is expressly resolved at the General Meeting not to fill the vacated office;

7.5.3.4 A resolution for the re-election of such Director shall have been put to the meeting

and rejected.

7.5.4 The Board shall be entitled to appoint a suitable person as Director for any casual

vacancy that might occur on the Board, which appointment shall be valid until the

company in a General Meeting appoints a person as Director to fill such casual vacancy.

7.6 POWERS AND DUTIES

7.6.1 The business of the Company shall be managed by the Directors who may exercise all

such powers of the Company as are not prohibited by the Companies Act or by this

Memorandum of Incorporation or required to be exercised by the Company at any Meeting

of Members.

7.6.2 The Directors may from time to time appoint one (1) or more of their Body to the office of

Chairperson and Vice Chairperson for such period and generally on such terms as the

Directors may think fit.

7.6.3 The appointment of a Chairperson and Vice Chairperson shall cease ipso facto if he

ceases for any reason to be a Director, or if the Company at any meeting of members

shall resolve that his position of Chairman or Vice Chairperson is terminated.

7.6.4 The Directors may from time to time entrust to and confer upon a Chairperson for the time

being such of the powers vested in him as they may think fit, and may confer such powers

for such time and to be exercised for such objects and upon such terms and with such

restrictions as they may think expedient, and they may confer such powers either

collaterally or to the exclusion of, and in substitution for, all or any of the powers of the

Directors, and may from time to time revoke or vary all or any of such powers.

7.6.5 The Directors shall have the power from time to time to delegate to any one (1) of their

Body or to the Manager, such of the powers as are vested in the Directors pursuant to the

Companies Act or under this Memorandum of Incorporation, as they may deem fit.


7.6.6 The Directors shall ensure that a Delegation of Authority Matrix exists defining the levels

of authority and reporting within the various functional sections of the organisation. This

Authority Matrix will cover the role of Members, Committees, Directors, Chairman,

Manager and staff. The Matrix will also define the working Policies and Procedures of the

Company.

7.6.7 The Directors may establish Committees consisting of such Member or Members of their

Body and/or third parties as they think fit but the Directors may not delegate any of their

powers to Committees. A Committee or Committees so formed shall, in the exercise of its

mandate will be purely advisory in nature to the Board of Directors and the committee will

conform to any regulations that may be imposed on it by the Directors. Save as aforesaid,

the Meetings and proceedings of a Committee consisting of a Director and two (2) or more

Members shall be governed by the provisions of this Memorandum of Incorporation

regulating the Meetings and proceedings of Directors.

7.6.8 Without prejudice to the general powers above and so as not in any way to limit or restrict

those powers, and without prejudice to the other powers conferred by this Memorandum

of Incorporation, it is hereby expressly declared that the Directors shall have the following

powers:

7.6.8.1 To pay the Costs incidental to the promotion of the Company; and

7.6.8.2 To purchase or otherwise acquire for the Company any capital asset, property or

related rights or privileges which the Company is authorised to acquire, at such

price and generally on such terms and conditions as approved at a General

Meeting of the Members of the Company; and

7.6.8.3 To secure the fulfilment of any Contracts or engagements entered into by the

Company, by mortgage or pledge of all or any of the property of the Company,

subject to a normal resolution at a General Meeting of the Members of the

Company; and

7.6.8.4 To appoint, remove or suspend, a Chairperson, such Managers, Secretaries,

Officers, Clerks, Agents and Staff for permanent, temporary or special services, as

they may from time to time think fit, within the applicable Labour Legislation and to

determine their powers and duties and to determine their salaries and employment

to such amounts as they deem fit; and


7.6.8.5 To engage or terminate the services of Accountants, Attorneys, Advocates,

Architects, Engineers and any other Professional Person(s) whatsoever for any

reasons deemed necessary by the Directors and on such terms as the Directors

may decide; and

7.6.8.6 To Institute, Conduct, Defend, Compound, or Abandon any Legal Proceedings by

or against the Company, or its Officers, or otherwise concerning the affairs of the

Company, and also to compound and allow time for payment or satisfaction of any

debts due, and of any Claims or demands by or against the Company; and

7.6.8.7 To make, collect and give receipts, releases and other discharges for money

payable to the Company, and for the Claims and demands of the Company; and

7.6.8.8 To determine who shall be entitled to sign on the Company's behalf bills, notes,

receipts, acceptances, Clearance Certificates, endorsements, cheques, releases,

contracts and documents; and

7.6.8.9 To invest any of the surplus funds of the Company not immediately required for the

business and purposes of the Company, subject to prescriptions and restrictions

contained in the financial policy of the Company; and

7.6.8.10 To enter into all negotiations and contracts, and rescind and vary all such contracts

and execute and do all such acts, deeds and things in the name and on behalf of

the Company as they may consider expedient for or in relation to any of the matters

aforesaid, or otherwise for the purposes of the Company; and

7.6.8.11 To levy subscriptions, contributions and/or levies on Members of the Company

upon such proportions as they may determine from time to time, if they deem it

advisable and determine the due date of payment thereof; and

7.6.8.12 To collect the levies from Members and to administer the levies as per the

obligations of this Memorandum of Incorporation; and

7.6.8.13 To suspend the voting rights of any Member or any Member's Representative or

Proxy for so long as any subscription, contribution and/or levy, notice of which has

been given to such Member, as contemplated in this Memorandum of

Incorporation, remains due but unpaid; and

7.6.8.14 To attend to all aspects of the maintenance and management of the Communal

services and communal facilities and inter alia to the application for, renewal of,


compliance with and the use of water and all other licenses required in the

operation of the Company.

7.7 MEETING AND COMMITTEE PROCEDURES

7.7.1 A Director may, and the Secretary shall, on the requisition of a Director, at any time

summon a Meeting of the Directors.

7.7.2 The Directors may meet together for the despatch of business, adjourn and otherwise

regulate their Meetings as they deem fit, but not less than six (6) times per annum Directors

Meetings will be held.

7.7.3 Unless otherwise resolved by the Directors, all their Meetings shall be held on the Property

or in the district where the Company’s Registered Office for the time being is situated.

7.7.4 Questions arising from any Meeting of Directors shall be decided by a simple majority on

voting of the Directors present and entitled to vote.

7.7.5 The Chairman shall not have a second or casting vote in the case of an equality of votes,

but the matter on which an equality of votes has been reached will stand over to the next

meeting for further deliberation during which the Chairman will have the casting vote.

7.7.6 The Directors may determine what period of notice shall be given of Meetings of

Directors and may determine the means of giving such notice.

7.7.7 A quorum shall consist of three (3) of the Directors present in person for the purpose of

convening a Meeting of Directors.

7.7.8 For the purpose hereof, a Director who has authorised another Director to vote for him

at a Meeting in terms of paragraph 16 shall, if the Director so authorised is present at the

Meeting, be deemed to be present personally.

7.7.9 The continuing Directors (or sole continuing Director) may act notwithstanding any

vacancy in their Body, but, if and so long as their number is reduced below the number

fixed by or pursuant to this Memorandum of Incorporation as a quorum, the continuing

Director or Directors may act only for the purposes of summoning a General Meeting of

the Company to appoint Directors. If there are no Directors or Directors able and willing

to act, and no specific provision is made in this Memorandum of Incorporation for the


appointment of Directors, then any six (6) Members may summon a General Meeting

only for the purpose of appointing Directors.

7.7.10 Subject to the Companies Act, a Resolution in writing signed by all the Directors and

being not less than the required quorum, is sufficient to form a quorum shall be as valid

and effective as if it had been passed at a Meeting of the Directors duly called and

constituted.

7.7.11 The Directors may elect a Chairman and Vice Chairman for their Meetings and determine

the period for which he is to hold office; but if no such Chairman or Vice Chairman are

elected, or if at any Meeting the Chairman or Vice Chairman are not present within fifteen

(15) minutes after the time appointed for holding it, the Directors present may choose

one (1) of their number to be Chairman of that Meeting.

7.8 VALIDITY OF ACTS OF DIRECTORS AND COMMITTEES

7.8.1 As regards all persons dealing in good faith with the Company, all acts done by any

Meeting of the Directors, or of a Committee of Directors, or by any person acting as a

Director, shall, notwithstanding that it be afterwards discovered that there was some

defect in the appointment or continuance in office of any such Directors or persons acting

as aforesaid, or that they or any of them were disqualified or had ceased to hold office

or were not entitled to vote, be as valid as if every such person had been duly appointed

or was qualified or had continued to be a Director or was entitled to vote, as the case

may be.

7.8.2 No Director shall, in his personal capacity or in his capacity as Director of the Company,

be liable for any loss / damage / misfortune which occurs as a result of the execution of

his duties unless it occurs as a result of his own dishonesty, gross negligence, breach of

duty or breach of trust.

8 MANAGER

8.1 The Directors may from time to time, and shall, if required by the Members of the Company

in General Meeting, appoint in terms of a written Contract a Managing Agent, Manager or

Managers with specified functions of the control, manage and to administer the Company

and to exercise such powers and duties as may be entrusted to a Manager / Managing

Agent, including the power to collect contributions levied by the Company.


8.2 The Contract with the Manager / Managing Agent shall further provide for the appointment

to be terminated and the Manager / Managing Agent shall cease to hold office if:

8.3 Where the Manager / Managing Agent is a Company or Close Corporation, an Order is

made for its Provisional or Final Liquidation, or, where the Manager / Managing Agent is

a natural person, he Surrenders his Estate as Insolvent or his Estate is Sequestrated,

whether provisionally or finally;

8.4 The Manager / Managing Agent is Convicted of an Offence involving Fraud or Dishonesty,

or, where the Manager / Managing Agent is a Company or Close Corporation, any of its

Directors is Convicted of an Offence involving Fraud or Dishonesty; or

8.5 A Special Resolution of the Members of the Company is passed to that effect, provided

that in such event the Manager / Managing Agent so removed from office shall not be

deprived of any right he may have to Claim Compensation or Damages for Breach of

Contract.

8.6 The Manager / Managing Agent shall keep full records of his administration and shall

Report to the Company on all matters which in his opinion detrimentally affect the value

or amenity of any Freehold Residential Portions, the Land or Open Spaces, as well as for

the Property.

8.7 The Directors shall give reasonable prior notice to the Manager / Managing Agent of all

Meetings of the Directors and the Manager / Managing Agent shall be entitled to be

present thereat.

8.8 The Directors shall within 7 (seven) working days of accepting minutes furnish to the

Manager / Managing Agent with copies of the Minutes of all Meetings of the Directors and

of the Company.

8.9 Should there be no Manager / Managing Agent in office at any time, then all references in

these paragraphs to the Manager / Managing Agent shall be deemed to be a reference to

the Directors.


9 RULES:

9.1 Subject to any restriction imposed or direction given at a General Meeting of the Company,

the Directors may from time to time make, add to, amend, repeal or suspend Rules

regarding, including, but not limited to:

9.1.1 Security and safety of the Estate and all persons thereon; and

9.1.2 Controlled access to and egress from the Estate; and

9.1.3 The use of Common Property; and

9.1.4 The design, building and aesthetic control of any improvements to be erected on any

freehold residential portions and/or existing Dwellings and/or the Open Spaces and/or any

facilities which may exist on the Property or which are intended for the general use,

enjoyment and amenity of the Members, and Building / Construction Regulations,

Engineering Regulations, Environmental Regulations, Site Specifications and

Accreditations, and

9.1.5 Environmental control including the preservation of the environment, including the right to

control the prevention of the removal of indigenous trees and shrubs and to require the

cultivation of trees and other vegetation, and

9.1.6 The conduct and behaviour of Members and their families, their Employees, Contractors,

Visitor, Tenants and bona fide occupants; and

9.1.7 Pets and other animals;

9.1.8 Letting and Reselling of Property.

9.2 For the enforcement of any of the Rules made by the Directors in terms hereof, the

Directors may:

9.2.2 Take or cause to be taken such steps as they may consider necessary to remedy the

Breach of the Rule of which the Member may be guilty; and/or

9.2.3 Take such other Action such as Arbitration or Mediation or Court Proceedings, as they

may deem fit; or


9.2.4 Give written notice to the person (which shall include any Member, Occupant or Visitor)

concerned requiring him to remedy any Breach; and

9.2.5 Impose a system of Penalties.

9.3 In the event of any Breach of the Rules by any Member’s Household, his Guests,

Lessees, Occupants, Employees, Contractors or bona fide Occupants, such Breach shall

be deemed to have been committed by the Member himself, but, without prejudice to the

afore-going, the Directors may take or cause to be taken such steps against the person

actually committing the Breach as they in their discretion may deem fit.

9.4 In the event of any Member disputing the fact that he, his Household, or his Guests,

Lessees, Occupants, Employees or Contractors have committed a Breach of any of the

Rules aforesaid, a Committee of three (3) Members of the Company, appointed by the

Chairman, failing him, a Director nominated by the Directors, of the Company, shall

adjudicate summarily upon the issue at such time and in such manner and according to

such procedure as the Chairman may direct.

9.5 Rules adopted, varied or amended by the Directors in terms of this paragraph will have

interim enforceability and permanent enforceability upon the Company ratifying the

Rules at the Annual General Meeting by means of an ordinary resolution.

9.6 The Directors may in the name of the Company enforce the provisions of any Rules by

Proceedings in a Court of competent jurisdiction and for this purpose may appoint such

Attorneys and Counsel as they may deem fit.

9.7 It shall be the duty of the Manager, or such other person or Body as may be empowered

by the Directors, to ensure compliance by the Members with the Rules, and to this end

to issue such notices or do such things as may be necessary or requisite.

10. FINANCE:

10.1. MANAGEMENT ACCOUNTS

10.1.1 The Board of the Company shall cause such accounting records to be kept as are

prescribed by the Companies Act.


10.1.2 The accounting records shall fairly represent the financial state of affairs and business

of the Company and explain the transactions and financial position of the Company.

10.1.3 The Board shall have full access to the Income Statement and Balance Sheet and

budgetary performance on and about the 10th of each and every month.

10.2. BUDGET

10.2.1 The Directors shall every three years, two months prior to the end of the three-year

Financial Period, prepare and establish in their opinion, an itemised estimate of the

anticipated Income and Expenditure (which may include a reasonable provision for a

contingency fund and a capital reserve fund) of the Company during the ensuing Three

Financial Years in the furtherance of the Company’s objectives and business as stated

in this Memorandum of Incorporation.

10.2.2 For the purposes of meeting all the itemised estimated Income and Expenses which

the Company has incurred, or which the Directors reasonably anticipate the Company

will incur, in the furtherance of the Company’s objectives and business as stated in the

Memorandum of Incorporation, the Directors will establish a levy fund.

10.2.3 The Company may not expense in any financial year 15% (fifteen per centum) in

excess of its approved annual operating budget unless supported by a Special

Resolution approved by its members in a Special Meeting.

10.3. LEVIES

10.3.1 The Directors shall estimate the contributions to be levied upon the Members during the

three ensuing Financial Years and require Members to pay such Levy contributions in

monthly instalments due in advance on the seventh (7th) day of each and every month

of the Financial Year.

10.3.2 Provided further, that any Member, who has Notarially Tied two (2) or more freehold

residential erven as shown on a General Plan from date of acceptance of this

Memorandum of Incorporation, shall be liable to contribute monthly his share in respect of

each such Notarially Tied freehold residential portions owned by him.

10.3.3 Subject to any restriction imposed or direction given at a Special General Meeting of the

Company, the Directors may from time to time impose Special Levies upon the Members.

These Special Levies will be paid in equal instalments by the 7th day of each month


beginning at a set date and ending in a set date as defined by Special Resolution. Special

Levies will consist of special Member contributions in respect of emergency and out-of-

budget Expenses of a capital nature, which have not been included in any estimates made

in terms of Paragraph 10.2.1, or to fund projects which cannot be funded from reserves.

10.3.4 A Member shall not be entitled to withhold payment for any reason whatsoever of any

Levy or Special Levy due by him to the Company.

10.3.5 Interest shall be payable on arrear Levies and Special Levies at the prime overdraft rate

of The Standard Bank of South Africa Limited as may be determined from time to time.

10.3.6 Any amount due by a Member by way of a Levy, Special Levy or interest thereon shall be

a debt due by him to the Company.

10.3.7 Where two (2) or more persons are registered as the Owners of a freehold residential erf,

their liability to pay Levies shall be jointly and severally.

10.3.8 The obligation of a Member to pay Levies shall cease upon him ceasing to be a Member,

without prejudice to the Company’s rights to recover arrear Levies and Interest thereafter.

10.3.9 A Member’s Successor in Title to any freehold residential erf shall be liable, with effect

from the date upon which he becomes a Member pursuant to the Transfer of such freehold

residential erf, to pay the Levy attributable to that freehold residential erf.

10.3.10 A certificate signed by the Manager on behalf of the Company will be prima facie proof

of the total Levies, Special Levies and Interest due by a member to the Company.

10.3.11 A Member shall be liable for and pay all Legal Costs, including Costs as between Attorney

and his Own Client, and any Collection Commission, Expenses and Charges incurred by

the Company in obtaining the recovery of arrear Levies or any other arrear amounts due

and owing by such Member to the Company or in the enforcement of the Rules and

Penalties of the Company.

10.3.12 No Member shall be entitled to the privileges of Membership unless and until he shall

have paid every Levy, Special Levy and Interest thereon and any other amount,

collectively or individually, which may be due and payable and is in arrears for more than

60 days, by that Member to the Company.


10.3.13 A member will have no vote and will not be entitled to attend or to speak, at a meeting of

the Members of the Company in the event that any Levy, Special Levy or Interest thereon

and any other amount, collectively or individually, due and payable by that member, is in

arrears for more than 60 days.

10.3.14 Levies paid in advance shall be subject to a pro rata refund when a Member ceases to

be a Member.

10.3.15 It is recorded that no set-off of any amount of any claim whatsoever that any Member

might have or allege or purport to have against the Company at any time shall be capable

of being made against any Levy payable by such Member to the Company. The Company

shall be entitled to, in its sole discretion, prioritise and allocate any payment received from

a Member to that Member’s general Levy account or arrears or interest charged or any

other item on such Levy account.

10.4. OTHER RECOVERIES

10.4.1 The Directors shall be entitled to impose an additional special penalty Levy against any

Member who fails to complete the construction of a residence on any Property registered

in the name of such Member within a prescribed time as indicated in the Rules from time

to time, but without prejudice to the rights of Members in respect of building deadline

time periods in existence at the time of the determination. The amount of the special

penalty Levy shall not exceed the amount of five times the normal Levy, levied in terms

of this Memorandum.

10.4.2 The Company supplies various services including the distribution of water and electricity,

the cost of which, shall be charged to the Member that is the registered Owner of such

Property.

10.4.3 Any failure by a Member to pay the fees for services, water and electricity, or any part

thereof, to the Company shall, despite any other right that the Company may have in

terms of this Memorandum or in law, entitle the Company to limit or cease or suspend

the supply of water and electricity and any other service, or to levy an additional or

penalty charge on the supply of such service, in the sole and exclusive discretion of the

Company, to such Member or the Property of which the Member is the registered owner,

pending the payment of all amounts due and payable to the Company.


10.4.4 Each and every Member shall be deemed to have waived any possible claims for

damages or consequential damages against the Company resulting from limitation,

suspension or cessation of water, electricity or any other services to any Property of

which said Member is the registered owner during any period:

10.4.4.1 It was reasonable for the Company to limit, suspend or cease such services

for the purposes of maintenance, repairs or works to relevant infrastructure;

10.4.4.2 Which the Company is reasonably unable to supply such services for any

reason whatsoever (inclusive, but not limited to, the inability to obtain supply of electricity

and water for any reason whatsoever);

10.4.4.3 Which the Member is in arrear with the payment of such services or is in

breach of any of the provisions of this Memorandum or the terms and conditions of such

supply in any way whatsoever.

10.5. COMPANY RECORDS

10.5.1 The accounting records and other information records such as, but not be limited to, the

Memorandum of Incorporation, Rules of the Company, record of present and past

Directors, Annual General Meeting Minutes and a list of the names of members shall be

kept at the Registered Office of the Company or at such other place as the Directors think

fit.

10.5.2 Information records shall only be open for inspection by the Members of the Company as

prescribed by the Companies Act, specifically as contemplated in Sections 24, 26 and 85

of the Act and this Memorandum (as amended) being;

10.5.2.1 The record of Directors and the Members Register;

10.5.2.2 Reports presented at an Annual General Meeting;

10.5.2.3 Annual Audited Financial Statements;

10.5.2.4 Minutes of all Members Meetings; and

10.5.2.5 Written communications sent generally by the Company to all Members.

10.6. ANNUAL FINANCIAL STATEMENTS AND INTERIM REPORTS


10.6.1 The Directors shall annually in accordance with the Act, cause to be prepared and placed

before the Company’s Annual General Meeting, Audited Annual Financial Statements.

10.6.2 A copy of the Audited Annual Financial Statements which are to be placed before the Annual

General Meeting, shall not less than twenty-one (21) days before the date of the Meeting, be

sent to every Member of the Company accompanied by the notice convening the Annual

General Meeting, provided that this paragraph shall not require a copy of those documents

to be sent to any person of whose address the Company is not aware of.

10.6.3 Interim reports will be defined by the Delegation of Authority Matrix and are to be used for

strategic planning and proof of legislative compliance. These reports are not limited to the

following:

10.6.3.1 Interim financial reports;

10.6.3.2 Human Resources;

10.6.3.3 Business Plan and Mission Statement;

10.6.3.4 Register of Plan Submissions

10.6.3.5 Register of common property encroachments

10.6.3.6 Register of Building progress

10.6.3.7 Register of Infringements

10.6.3.8 Risk Assessment

10.6.3.9 5 Year Marketing Plan and Social Investment

10.6.3.10 Infrastructure maintenance plan

10.7. AUDITORS

10.7.1 An Auditor or auditing Company shall be appointed for the Company as per the provisions of

the Companies Act.

10.7.2 The appointment, powers, rights, remunerations and duties of the Auditors shall be regulated

by the provisions of the Companies Act.

10.7.3 The appointed Auditor may not be a Member, Director or Employee of the Company or a

direct Family Member (including Spouse or Life Partner) of any Member, Director or

Employee of the Company.

10.8. RESERVES


10.8.1 The Directors may set aside out of the Income of the Company or contingencies as budgeted

for and carry to reserve such sums as they think proper.

10.8.2 All sums standing to the credit of revenue and general reserve shall at the discretion of the

Directors be applicable for meeting contingencies, for the gradual Liquidation of any debt or

liability of the Company, for repairing, improving or maintaining any Property of the Company,

for meeting losses on realisation of, or writing down investments either individually or in the

aggregate, or for any other purpose to which Income of the Company may appropriately be

applied. Pending such application such sums may either be employed in the business of the

Company (without being kept separate from other assets of the Company) or be invested

and may not be repaid to Members.

10.8.3 The Directors may divide the reserve into such special reserves as they think fit and reallocate

the amounts of such reserves either in whole or in part into other special or general reserves

and may consolidate into one reserve any special reserves or any parts of special reserves

into which the reserve may have been divided.

10.8.4 The Directors may also carry forward any Income without placing them to reserve.

10.8.5 Any Special Levy that is collected for a specific project, must be placed into reserves until the

total amount required is collected. The Special Levy amount must be ring-fenced for the

specific project and cannot be used for any other purpose. Monthly reporting is to be made

available to all members indicating the total collected and the outstanding amounts. When

the due date has been reached for total collection, special effort must be made to collect any

outstanding amounts and verification made of the exact amount to be expended. Full and

continuous reporting is to be made available to all members until the project has been

finalised.

10.9 BORROWING

10.9.1 Subject to any restriction imposed or direction given at a General Meeting of the Company,

the Directors may with prior approval from the Members at a General Meeting, borrow from

a reputable registered credit provider any sums of money for the purpose of meeting the

objects and business of the Company as set out in this Memorandum of Incorporation and

which have not been raised in terms of paragraph 5.

10.9.2 The Directors may also enter into a “rent to own” system with a supplier with the purpose of

meeting the objects and business of the Company.


10.9.3 The Directors may secure the repayment of any sums of money borrowed or the payment of

any debt, liability or obligation whatsoever of the Company in such manner and upon such

terms and conditions as they resolve upon in their discretion.

10.9.4 The Reporting of any such Loans is to be made available to all members on a monthly basis

until the debt is cleared unless the Borrower elects to remain anonymous for the term of the

loan.

10.10 TENDERS

10.10.1 The Directors shall, three months before the expiry of the contract, put out to

tender with full supporting documents the requirements for:

10.10.1.1 Security

10.10.1.2 Equestrian Centre Management

10.10.1.3 Common Property and Golf Course Maintenance

11. MAINTENANCE:

11.1. The Directors shall have the power, without prejudice to any other rights of the Company to:

11.1.1. Whenever they consider that the appearance of any Land, freehold residential erf or any

Building or structure thereon or any Landscaping Owned by a Member as unsightly or

injurious to the amenities of the surrounding area of the Property, to serve notice on such

Member to take steps as may be specified in the notice to rectify such unsightly or injurious

condition within a stated period; and

11.1.2. Should a Member on whom a notice in terms of paragraph 9.1.1 is served, fail to take such

steps as may be specified in the notice within the stated period, or takes steps but not

sufficient in the opinion of the Directors as specified in the notice, the Company may take

such steps as may be necessary to rectify such unsightly or injurious condition and to recover

the Costs of so doing from the Member concerned, which Costs shall be deemed to be a debt

owing by such Member to the Company.


11.2. The Directors shall have the power to from time to time determine the routine maintenance

requirements of the Open Spaces and to instruct the Manager or other appointed person to attend

to such maintenance requirements on behalf of and at the Cost of the Company; and

11.3 The Directors shall have the power to pay the Costs of employing such staff Members as they

deem necessary to further the Company’s objects and/or business.

12. AMENITIES:

12.1 The Directors shall have control of all social and recreational facilities and amenities situated on

Open Spaces and may accept and/or amend, add to or delete from time to time such Rules as

they may consider necessary for the use of any such facilities and amenities by Members,

including the charging of such Fee as they may deem reasonable for the use thereof.

13. STANDS

13.1 RESTRICTIONS ON TRANSFER OF FREEHOLD RESIDENTIAL STANDS

13.1.1 No Member shall Transfer any freehold residential erf of which he is the Registered

Owner unless:

13.1.1.1 The Company, under the hand of the Directors or their duly authorised

Agent, has issued a clearance certificate in terms of which it is certified that the

Member has fulfilled all his financial obligations to the Company in respect of the

period up to and including the date specified in such notice; and

13.1.1.2 The Transfer takes place prior to or on that specified date; and

13.1.1.3 The proposed Transferee has agreed in writing to become a Member of the

Company and such written Agreement has been lodged with the Company; and

13.1.1.4 The buildings and structures or any improvements of a freehold residential

erf conform to the Rules of the Company; and

13.1.1.5 Any semi-permanent or permanent structure erected on the common area

alongside the stand has been removed so that the transferee is clear that he does

not have right of ownership on the common area.


13.1.2 The Company may claim from any Member or his Estate any arrears of Levy or Special

Levy or Interest or other amount legally due by him to the Company at the time of his

ceasing to be a Member.

14. MEETINGS OF MEMBERS:

14.1 GENERAL

14.1.1 The Company, at such time as prescribed in the Act, shall and the Board of the Company

may upon ordinary resolution, hold General Meetings of Members to be known and described in the

notices calling such meetings as Annual General Meetings or Special Meetings.

14.1.2 The Annual General Meeting of the Company shall be convened within fifteen (15) months

after the previous Annual General Meeting of the Company in order to satisfy the

requirements of this Memorandum of Incorporation or to comply with requirements of the Act

and Regulations.

14.1.3 The Directors may, whenever they think fit, convene a Special Meeting and a Special Meeting

shall also be convened on a written requisition by Members presenting not less than one-

twentieth of the total voting rights of all the Members of the Company having at the date of

the lodgement of the requisition a right to vote at a Meeting of the Company or, in default by

the Directors, may be convened by the requisitionists as provided by and subject to the

provisions of the Companies Act.

14.1.4 Meeting of Members shall, unless otherwise resolved by the Directors, be held on the

Property or in the District in which the Company’s Registered Office is for the time being

situated.

14.1.5 Subject to the provisions of the Companies Act relating to the Meetings of which special

notice is required to be given, an Annual General Meeting and a Meeting called for the

passing of a Special Resolution shall be called by fifteen (15) clear days’ notice in writing at

the least.

14.1.6 The notice shall be exclusive of the day on which it is served or deemed to be served and of

the day for which it is given and shall specify the place, the day and the hour of the Meeting

and, in case of special business, the general nature of the Special Resolution, expressed

with sufficient clarity and specificity accompanied by sufficient information or explanatory

material, and shall be given to such persons as are, under these paragraphs, entitled to


receive such notices from the Company, provided that a Meeting of the Company shall,

notwithstanding that it is called by shorter notice than that specified in this paragraph, be

deemed to have been duly called if it is so agreed by a majority in number of the Members

having right to attend and vote at the Meeting.

14.1.7 The accidental omission to give notice of a Meeting to, or the non-receipt of notice of a

Meeting by, any person entitled to receive notice shall not invalidate the proceedings of that

Meeting.

14.2 PROCEEDINGS AT MEETINGS OF MEMBERS

14.2.1 All business that is transacted at the Annual General Meeting and any other Meeting of the

Company, with the exception of:

14.2.2.1 The consideration of the Audited Financial Statements; and

14.2.2.2 The selection and approval of external Auditors; and

14.2.2.3 The fixing and approval of the remuneration of the external Auditors; and

14.2.2.4 The election of nominated Directors shall be deemed to be special business.

14.2.3 Business may be transacted at any Meeting of Members of the Company only when and

while a quorum is present.

14.2.4 Save as herein otherwise provided, the quorum at a Meeting of Members shall be 25%

(twenty-five per centum) of the total number of Members eligible and entitled to vote present

personally or by proxy and of which at least twenty (20) members need to be personally

present and entitled to vote.

14.2.5 If within thirty (30) minutes from the time appointed for the Meeting, a quorum is not present,

the Meeting, if convened upon the requisition of Members, shall be dissolved. Any other

Meeting convened by the Directors and at which a quorum is not present, shall stand

adjourned to the same day in the next week, at the same time and place or, if that day be a

Public Holiday, to the next succeeding day other than a Public Holiday, and if at such

adjourned Meeting a quorum is not present within thirty (30) minutes from the time appointed

for the Meeting and subject to the Companies Act, the Members or Member present shall

form a quorum.


14.2.6 The Chairman, if any, of the Board of Directors shall preside as Chair at every Meeting of

Members of the Company.

14.2.7 If there is no such Chairman, or if at any Meeting he is not present within fifteen (15) minutes

after the time appointed for holding the Meeting or is unable or unwilling to act as Chair, the

Members present shall choose another Director or, if no Director be present or, if the

Directors present are unable and unwilling and decline to Chair, the members shall be entitled

to appoint any Member or any third party to Chair the Meeting.

14.2.8 The Chairman may, with the consent of any Meeting at which a quorum is present (and shall

if so directed by the Meeting), adjourn the Meeting from time to time and from place to place,

but no business shall be transacted at any adjourned Meeting other than the business left

unfinished at the Meeting from which the adjournment took place. When a Meeting is

adjourned as a result of a direction given in terms of any applicable provision in this

Memorandum of Incorporation, notice of the adjourned Meeting shall be given in the manner

prescribed by such provision but, save as aforesaid, it shall not be necessary to give any

notice of an adjournment or of the business to be transacted at an adjourned Meeting.

14.2.9 At any Meeting of Members, a resolution put to the vote of the Meeting shall be decided on

a show of hands, unless before or on the declaration of the result of the show of hands, a

poll is demanded by any member entitled to vote at the Meeting.

14.2.10 Unless a poll is so demanded, a declaration by the Chairman that a resolution has, on a

show of hands, been carried, or carried unanimously, or by particular majority, or lost, and

an entry to that effect is made in the Minute Book of the Company, it shall be conclusive

evidence of the fact, without proof of the number or proportion of the votes recorded in favour

of, or against, such Resolution.

14.2.11 A Special Resolution of the Company is a resolution adopted with the support of at least

75% (seventy-five per centum) of the Members present personally or represented by Proxy

and entitled to vote.

14.2.12 No objection shall be raised as to the admissibility of any vote except at the Meeting itself

and at which the vote objected to is raised, every vote not disallowed at such Meeting shall

be valid for all purposes. Any objection shall be referred to the Chairman of the Meeting,

whose decision shall be final and conclusive.

14.2.13 If a poll is duly demanded it shall be taken in such manner as the Chairman directs and the

result of the poll shall be deemed to be the Resolution of the Meeting at which the poll was

demanded. Scrutineers shall be elected at the Meeting by the Chairman to declare the result


of the poll, and their decision, which shall be given by the Chairman of the Meeting, shall be

deemed to be the resolution of the Meeting at which the poll is demanded.

14.2.14 In the case of an equality of votes, whether on a show of hands or on a poll; the Chairman

of the Meeting at which the show of hands takes place, or at which the poll is demanded,

shall not be entitled to a second or casting vote.

14.2.15 Any ordinary resolution put to the vote before a Meeting of Members needs to be supported

by a 51% (fifty-one per centum) vote in favour of the resolution.

14.3 VOTES OF MEMBERS / PROXY

14.3.1 At any Meeting of the Company each Member of the Company who is the Owner of a freehold

residential erf present in person or represented by Proxy or, if a Member is a Corporate Entity

duly represented, shall have 1 (one) vote for each freehold residential erf of which he is the

Owner; and

14.3.2 A Member will be entitled to appoint in writing, duly dated and properly signed a Proxy to

participate in, speak and vote on the Member’s behalf.

14.3.3 A Proxy Holder needs to be a Member of the Company in good standing who can hold a

maximum of five (5) proxies or the Chairman of the Board.

14.3.4 The form appointing a Proxy shall be in writing and dated under the hand of the appointer or his

agent duly authorised thereto in writing or, if the appointer is a Corporate Body, under the hand

of an officer or agent authorised by that Body.

14.3.5 The holder of a General Power of Attorney or Special Power of Attorney given by a Member

shall be entitled to vote, if duly authorised under that power to attend and take part in the

Meetings and proceedings of the Company or Companies generally.

14.3.6 The form appointing a Proxy and the Power of Attorney or other Authority, if any, under which it

is signed or a Notarially certified copy of such power or Authority shall be electronically

transmitted or deposited by hand at the Registered Office of the Company not less than forty

eight (48) hours (or such lesser period as the Directors may unanimously determine in relation

to any particular Meeting) before the time for holding the Meeting (including an adjourned

Meeting) at which the person named in the form proposes to vote, and in default, the form of

Proxy shall not be treated as valid. No form appointing a Proxy shall be valid after the expiration


of six (6) months from the date when it was dated and signed, except at an adjourned Meeting

or unless otherwise specifically stated in the Proxy itself.

14.3.7 A vote given in accordance with the terms of a Proxy shall be valid notwithstanding the death of

the principal, or revocation of the Proxy, provided that the Directors did not receive notice of the

death or revocation at any time before a vote is taken.

15. NOTICES:

15.1 A notice by the Company to any Member shall be regarded as validly given if it is delivered personally

to the Member by hand, or sent by prepaid registered post to him at his registered address or

transmitted electronically to the Member’s registered email address.

15.2 A Member entitled to a notice shall be bound by every notice given in terms of paragraph

15.1.

15.3 The Company shall not be bound to enter any person in the Register of Members of the

Company until that person gives the Company a postal address, physical address and an

electronic email address for entry in the Company Register.

15.4 Any notice if given by post, shall be deemed to have been served on the seventh (7th) day

following that on which the letter or envelope containing such notice is posted, and in proving

the giving of the notice sent by post, it shall be sufficient to prove that the letter containing the

notice was properly addressed and put into the post office.

15.5 Any notice delivered by hand and electronic communication by whatever means shall be

deemed to have been delivered and transmitted on the day following the date of service or

the date upon which such electronic communication is released and a subsequent delivery

report confirms delivery.

16. INDEMNITY:

16.1 Every Director, Manager and Officer of the Company and every person, whether an Officer

of the Company or not, shall be indemnified out of the funds of the Company against all

liability incurred by him as such Director, Manager, Officer or Auditor in defending any

proceedings, whether Civil or Criminal, in which Judgment is given in his favour, or in which

he is acquitted.


17 WINDING-UP:

17.1 The Company does not have a share capital.

17.2 The liability of each Member is limited to the following amount upon the Company being

wound-up in that each Member undertakes to contribute to the assets of the Company while

he is a Member or within one (1) year after he has ceased to be a Member upon the Company

being wound-up, the amount of R1.00 (One Rand) in respect of each Freehold Residential

Erf of which he is the Owner.

17.3 Winding up of the Company by Members shall only be carried into effect after 75% (seventy-

five per centum) of Members present at a General Meeting have resolved the winding-up of

the Company.

17.4 Upon the winding-up of the Company its assets will be transferred to another non-profit

Company.

18. ALTERNATIVE DISPUTE RESOLUTION:

18.1 Without derogating the right of any member or the Company to seek Relief on an Urgent

basis from any competent Court, in the event of any dispute arising in regard to this

Memorandum of Incorporation, its interpretation and application or the interpretation and

application of the Estate Rules or as to any matter arising from the content thereof, disputes

shall be Resolved as follows:

18.1.1 Any member or the Company may declare a dispute by delivering the details thereof to

the other party and the Company and Manager; and

18.1.2 request that such dispute be referred without legal representation to mediation by a single

mediator at a place and time to be determined by the mediator.

18.1.3 Within 14 (fourteen) days of the delivery of the declaration of a dispute and request that

such dispute be referred to mediation and in the absence of the parties agreeing to a

mediator, the Board of Directors, shall nominate the mediator which not necessary be a

member of the Company.

18.1.4 The mediator will convene and conduct the mediation process at such venue, date and

process as he in his sole discretion may determine.


18.1.5 The costs of mediation shall be determined by the mediator and shall comprise:

18.1.5.1 the mediator’s expenses; and

18.1.5.2 any fee which shall have been previously paid by the parties.

18.1.6 The said costs shall be borne equally by the two parties or by such proportions by the

parties, if more than two, as resolved by the mediator and shall be due and payable to the

mediator on presentation to them of his written account.

18.1.7 If, within 14 (fourteen) days of the appointment of a mediator or such extension as the

parties may agree, the dispute remains unresolved, or despite mediation the dispute has

not been resolved, then the dispute shall be determined by arbitration as hereinafter

prescribed.

18.1.8 The arbitrator shall be selected by agreement between the parties or, failing such

agreement, nominated on the application of either party by the Chairperson for the time

being of the Johannesburg Society of Advocates or his nominee within 14 (fourteen) days

of the failure of mediation.

18.1.9 The arbitrator shall, at his entire discretion, determine whether the reference to him shall

be made in the form of written and/or oral representations and/or such other procedure or

rules providing that, in making this determination, he shall consult the disputing parties

and be guided by their desires of the form in which the said representations are to be

made.

18.1.10 The Arbitrator shall have power to open up, review and revise any certificate, opinion,

decision, requisition or notice relating to all matters in dispute submitted to him and to

determine all such matters in the same manner as if no such certificate, opinion, decision,

requisition or notice had been issued.

18.1.11 Upon every or any such reference, the costs of and incidental to the reference and award

shall be in the discretion of the Arbitrator, who may determine the amount thereof, or direct

same to be taxed as between Attorney and client or as between party and party and shall

direct by whom and to whom and in what manner the same shall be borne and paid.

18.1.12 The arbitrator shall, within a reasonable period thereafter, hand down in writing an award

and shall include in his award detailed reasons leading to the award.

18.1.13 The arbitrator shall deliver a copy of his award to each party.


18.1.14 The award of the Arbitrator shall be final and binding on the parties hereto unless the

parties agreed to a right to appeal upon the pre-arbitration stage.

MEMORANDUM OF INCORPORATION OF A NON-PROFIT COMPANY … · 2019-09-16 · pertaining to the...

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