Form CM44B
REPUBLIC OF SOUTH AFRICA
COMPANIES ACT, 1973
Articles of association
of a company not having a share capital not adopting Schedule 1
[Section 60(1); regulation 18]
REGISTRATION NUMBER OF COMPANY
Name of company JACANA BAY HOMEOWNERS' ASSOCIATION (ASSOCIATION INCORPORATED UNDER SECTION 21)
The articles of Table A contained in Schedule 1 to the Companies Act, 1973, shall not apply to the company.
INTERPRETATION
1.1 In these articles, unless the context otherwise indicates:
(a) "authorised representative" means a person authorised in terms of the Act by a company or other body corporate to act as its representative at any general meeting of the company;
(b) "company" means this company as constituted by its memorandum of association and may also be referred to as the “Association” in these articles;
(c) “Association” is the “company” defined above.
(d) "memorandum" means the memorandum of association of the company in force for the time being;
(e) "person" includes any company incorporated or registered under any law and any body of persons corporate or incorporate;
(f) "the Act" means the Companies Act, 1973;
(g) the "articles of association” or “articles" mean these articles of association;
(h) words and expressions defined in the Act, and which are not otherwise defined in these or not incorporated under any law of any country;
(i) "sign" includes the reproduction of a signature by lithography, printing, or any kind of stamp or any other mechanical process, and "signature" has the corresponding meaning;
(j) "the developer" or “Erf 27 Erand” is Erf 27 Erand (Proprietary) Limited.
(k) “the township” or the “townships” is a reference to Meerhof Extension 1 Township, described in Clause 2 of the Memorandum.
1.2 words importing any gender include the other genders and words importing the singular number include the plural, and vice versa;
1.3 any word or expression which is defined in the Act and which is not otherwise defined in these articles shall have the meaning assigned thereto in the Act as in force at the date of incorporation of the company;
1.4 these articles shall be deemed to authorise the company to do anything which the Act empowers a company to do if so authorised by its articles, unless that authority is expressly excluded.
2. MEMBERSHIP
2.1 The first members of the company shall be:
2.1.1 …JOHAN VORSTER……
2.1.2 …ROBIN VORTSER …..
2.1.3 …ERF 27 ERAND (PTY) LTD …
2.1.4 ….GABRIEL GERT FREDERIK STOLTZ
2.1.5 ……… to be advised by Johan Vorster ……….
2.1.6 ……..
2.1.7 ……..
In addition, the directors may, in their discretion, admit any person who supports the objects of the company as a member of the company on the terms and conditions contained herein, and subject to such terms and conditions as may be prescribed by the directors on the date of such admission.
2.2 Apart from the first members mentioned in 2.1 above, every person who receives transfer of a property (called an “erf”) in the township will upon registration of such transfer in his name automatically become a member of the Association and bound to the rules and regulations promulgated from time to time by the Association, as added to, varied or otherwise amended from time to time. If the party taking transfer is not a natural person, it will be obliged prior to transfer to nominate a natural person to represent it and to notify the Association of the full names, street address and postal address of the said representative, failing which the Association may choose the identity of the representative from amongst the directors, members, trustees, partners or other similar owners or office bearers of the owner. Every person who shall have become a member of the Association shall not be capable of terminating the membership provided that he shall automatically cease being a member as soon as he ceases being the registered owner of an erf in the township. The developer shall be a member of the Association until it no longer owns any erf in the township and shall at meetings of the Association be entitled to one vote for every erf registered in its name. The subscribers to the memorandum and articles of association of the Association shall be deemed to be agents of the developer and shall be entered as such in the company's register of members in respect of the erven held by the developer from time to time. Where an erf is owned by more than one person all the registered owners together shall be deemed to be one member of the Association and shall together have the rights of one member of the Association, shall jointly and severally be liable for the member's obligations and shall together exercise one vote at meetings of the Association.
2.3 Apart from the cessation of membership provided for in 2.2 above a member shall cease to be a member immediately-
2.3.1 in the case of a natural person-
(i) on such member's death in which event his executor will be bound as a member until the erf is transferred out of his estate;
(ii) if such member becomes a lunatic or of unsound mind in which event any curator appointed for him will be bound as a member;
(iii) if such member's estate is surrendered or sequestrated, whether voluntarily or compulsorily in which event the appointed trustee will be bound as a member;
2.3.2 in the case of a member which is not a natural person- if such member is liquidated, wound up or placed under judicial management, whether provisionally or finally and whether compulsorily or voluntarily in which event its liquidator will be bound as a member.
2.4 The Company shall maintain at its registered office a register of members of the Company as provided
in Section 105 of the Act. The register shall be open to inspection, as provided for in Section 113 of the Act.
3. CERTIFICATES
Subject to the provisions of the Act, certificates of membership may be issued under the authority of the directors in such manner and form as the directors may determine from time to time.
GENERAL MEETINGS AND PROCEEDINGS THEREAT
4.1 Subject to the proviso that a general meeting of the members shall be held within 6 (six) months after the end of each financial year as the Company's annual general meeting, general meetings shall be held in accordance with the provisions of the Act, at such times and places as may be determined by the directors. An annual general meeting and a meeting called for the passing of special resolution shall be called by not less than 21 (twenty-one) clear days' notice in writing and any other general meeting shall be called by not less than 14 (fourteen) clear days' notice in writing. The notice shall be exclusive of the day on which it is served or deemed to be served and of the day on which it is given and it shall specify the place the day and the hour of the meeting and shall state the general nature of the business to be transacted at the meeting. Notice shall be given to all members of the Company. A meeting of members shall, not withstanding the fact that it is called by shorter notice than that specified above in this clause, be deemed to have been duly called if it is so agreed in writing by not less than 95% (ninety five percent) of the members having a right to attend and vote at the meeting. The directors may, whenever they think fit, convene a general meeting. A general meeting may also be convened by the directors on a requisition made in terms of Section 181 of the Companies Act, or should the trustees not do so, it may be convened by the requisitions as provided for and subject to the provisions of the said section of the Act.
4.2 The annual general meeting shall deal with and dispose of all matters prescribed by the Act, the consideration of the annual financial statements, the election of directors, the noting of the levy in respect of which such annual general meeting takes place, the appointment of an auditor and may deal with any other business laid before it. All business laid before any other general meeting shall be considered special business.
4.3 At every general meeting:
a) every member present in person or by proxy and entitled to vote, shall have one vote for each erf registered in his name;
b) if an erf is registered in the name of more than one person, then all such co-owners shall jointly have one vote. The developer of the township, shall have one vote in respect of each property remaining registered in its name, even after the sale of such property but before it shall have been transferred to the purchaser thereof. No person other than a member, duly registered and who shall have paid every levy and other sum due by it to the Company, shall be entitled to be present or to vote at any general meeting. No objection shall be raised to the admissibility of any vote except at the meeting or adjourned meeting at which the vote objected to is cast and every vote not disallowed at such meeting shall be valid for all purposes. Any such objection made in due time shall be referred to the chairman of the meeting whose decision shall be final and conclusive.
5. A member shall be entitled to appoint a proxy to attend, speak and vote (whether on a show of hands or on a poll) in his stead at any general meeting in accordance with the Act to be effective at a meeting or adjourned meeting of meeting, a proxy together with the original or a notarially certified copy of any power of attorney or other authority under which it is signed, must be lodged with the Association at least 24 (twenty four) hours before the commencement of the meeting or adjourned meeting concerned, but the directors may from time to time determine that such documents:
a) are to be lodged at a particular place; or
b) are to be lodged a certain number of hours not exceeding 48 (forty eight) hours before the meeting; or
c). may be lodged at any time before or during the meeting.
Notwithstanding the aforegoing the chairman of the meeting may agree to accept a proxy tendered at any time before or during the meeting. A proxy shall be valid for an indefinite period unless it is stated on the proxy that it is only valid for a shorter period. The instrument appointing a proxy shall be in such format as the directors may determine from time to time and failing such determination it shall be in writing, shall effect the full name of the giver of the proxy and the full name of the holder of the proxy as well as the property registered in the name of the giver of the proxy and shall indicate the resolutions in respect of which the proxy is to vote and whether the proxy is to vote in favour or against the resolution or to abstain. The proxy shall be signed by the giver thereof and his signature shall be dated and witnessed. The proxy must be a member of the Company.
6. Unless a general meeting determines that there shall be a greater quorum, a quorum for a general meeting shall be one half of the members of the company provided that it shall never be less than three members.
7. Should a quorum not be present within thirty minutes after the appointed time for a general meeting, the general meeting, if convened by or on a requisition of members, shall be dissolved and in any other case shall stand adjourned to the same day (or if that day is a public holiday, the next business day) in the next week at the same time and place, and a quorum at the resumption of the general meeting shall be the members present in person or by proxy at that meeting.
8. The chairman or, failing him, a deputy chairman of the directors (or if more than one of them is present and willing to act, the most senior of them) shall be the chairman of each general meeting, provided that if no chairman or deputy chairman is present and willing to act, the members present shall elect one of the directors or, if no director is present and willing to act, a member, to be chairman of that general meeting. The chairman shall not have a casting vote.
9. The chairman of a general meeting shall, if obliged to do so in terms of the Act and may, in his discretion in any other circumstances, adjourn that general meeting from time to time.
10. Subject to the provisions of the Act, it shall not be necessary to give notice of any adjournment of a general meeting.
11. No business shall be transacted at the resumption of any adjourned general meeting other than the business left unfinished at the general meeting from which the adjournment took place.
12.1 At any general meeting, each member who is present in person, by authorised representative or by proxy shall have one vote for every erf in the township registered in his name, whether on a show of hands or on a poll.
12.2 A member whose levy, made by the Homeowners' Association and which is due, is not fully paid up or who owes any other amount to the Association of which notice has been given to the member, shall not attend nor vote at any general meeting of members.
13. At any general meeting of members a resolution put to the vote shall be decided by a show of hands unless a poll is demanded (on or before the declaration of the result of a show of hands)-
13.1 by the chairman of the meeting;
or
13.2 in accordance with the provisions of the Act.
14. On a show of hands at a general meeting a declaration by the chairman as to the result of the voting on any particular resolution and an entry to that effect in the minutes shall be conclusive proof of that result, without proof of the number or proportions of votes recorded in favour of, against and as abstaining from such resolution.
15. If a poll is demanded at a general meeting-
15.1 on the election of a chairman or on an adjournment, the poll shall be taken immediately and in such manner as the general meeting determines, and a poll on any other question shall be taken at such time and in such manner as the chairman of the general meeting directs;
15.2 the result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded;
15.3 the demand shall not preclude the general meeting from considering any question other than that on which the poll has been demanded unless the general meeting decides otherwise;
15.4 the demand may be withdrawn at any time.
16. No objection shall be taken to the admission or rejection of any vote except at the general meeting at which the vote in dispute is cast, or, if it is adjourned, the resumption thereof. The chairman of that general meeting or resumed general meeting shall determine any issue raised by such objection and his determination shall be final and binding.
17.1 A resolution in writing signed by all members entitled to receive notice of and to attend and vote at a general meeting shall be as valid and effective as if it had been passed at a general meeting properly called and held. Any such resolution may consist of several documents, each of which may be signed by one or more members and shall be deemed to have been passed on the date on which it was signed by the last member who signed it, unless a statement to the contrary is made in that resolution.
17.2 Notice of every General Meeting shall be given in the same manner hereinbefore authorised and to every member, except those members who, having no registered address within the Republic of South Africa, have not supplied the Company with an address within the Republic of South Africa. No other persons shall be entitled to receive Notices of General Meetings.
PROXIES
18. A proxy form, power of attorney or other authority in respect of a general meeting shall be in writing and signed by or on behalf of the grantor.
19. Subject to the provisions of the Act, a proxy form shall-
19.1 be in such form as is approved or accepted by the directors;
19.2 be deposited at the office not less than twenty-four hours before the time appointed for the
holding of the general meeting, or resumption of an adjourned general meeting at which the person named therein proposes to vote;
19.3 in addition to the authority conferred by the Act, except insofar as it provides otherwise, be deemed to confer the power generally to act at the general meeting in question, subject to any specific direction as to the manner of voting;
19.4 be valid at every resumption of an adjourned meeting to which it relates, unless the contrary is stated thereon;
19.5 not be used at the resumption of an adjourned general meeting if it could not have been used at the general meeting from which it was adjourned for any reason other than it was not lodged timeously for the meeting from which the adjournment took place;
19.6 not be valid after the expiry of two months after the date when it was signed unless it specifically provides otherwise.
20. A vote cast or act done in accordance with the terms of a proxy form shall be deemed to be valid notwithstanding-
20.1 the previous death, insanity, or any other legal disability of the person appointing the proxy,
or
20.2 the revocation of the proxy,
or
20.3 the transfer of a share in respect of which the proxy was given, unless notice as to any of the abovementioned matters shall have been received by the company at the office or by the chairman of the meeting at the place of the general meeting if not held at the office, before the commencement or resumption (if adjourned) of the general meeting at which the vote was cast or the act was done or before the poll on which the vote was cast.
DIRECTORS
21. Subject to the provisions of the Act,
21.1 unless otherwise determined by a general meeting, the number of directors shall be not less than five nor more than seven.
21.2 the first directors may be appointed by the subscribers to the memorandum and they shall hold office until the first annual general meeting of the Association when their term as directors shall terminate but they shall be capable of re-election.
21.3 it shall not be necessary for a director to be a member of the Company.
22. A general meeting of the directors shall have the power, from time to time, to appoint anyone as a director, either to fill a vacancy in the directors or as an additional director, provided that the total number of directors shall not at any time exceed the maximum number fixed by or in accordance with these articles and the appointment of any director so appointed shall cease at the conclusion of the next annual general meeting, unless it is confirmed at that annual general meeting.
23. The continuing directors may act, notwithstanding any vacancy in their number, but if and for so long as their number is reduced below the minimum number of directors required to act as such for the time being, the continuing directors may act only to-
23.1 increase the number of directors to the required minimum,
or
23.2 summon a general meeting for that purpose, provided that if there is no director able or willing to act then any member may convene a general meeting for that purpose.
24. The directors shall not be paid any remuneration for their services as such unless a specific agreement is reached between the Company and any executive director and is signed by or on their behalf.
25. The directors may be paid any travelling, subsistence and other expenses properly incurred by them in the execution of their duties in or about the business of the company and which are authorised or ratified by the directors.
ALTERNATE DIRECTORS
26. Each director may by notice to the company-
26.1 nominate anyone or more than one person in the alternative (including any of his co-directors) to be his alternate subject to the approval of the other directors of that alternate, which approval shall not be unreasonably withheld;
26.2 at any time terminate any such appointment.
27. The appointment of an alternate director shall terminate-
27.1 when the director to whom he is an alternate director-
27.1.1 ceases to be a director;
or
27.1.2 terminates his appointment;
or
27.2 if the directors reasonably withdraw their approval to his appointment.
28. An alternate director shall-
28.1 only be entitled to attend or act or vote at any meeting of directors if the director to whom he is an alternate is not present, provided that-
28.1.1 he may attend a meeting of directors at which the director to whom he is an alternate is present if the other directors agree thereto;
28.1.2 any person attending any meeting of directors as a director in his own right and/or as an alternate for one or more directors shall have one vote in respect of each director whom he represents, including himself if he is a director;
28.2 only be entitled to sign a resolution passed otherwise than at a meeting of directors in terms of these articles if the director to whom he is an alternate is then absent from the town in which the office is situate, or if incapacitated;
28.3 subject to the aforegoing, generally exercise all the rights of the director to whom he is an alternate in the absence or incapacity of that director;
28.4 in all respects be subject to the terms and conditions existing with reference to the appointment, rights and duties and the holding of office of the director to whom he is an alternate, but shall not have any claim of any nature whatever against the company for any remuneration of any nature whatever.
POWERS AND DUTIES OF THE DIRECTORS
29. Subject to any limitation imposed by these articles, the management of the business and the control of the company shall be vested in the directors who, in addition to and without limitation of the powers expressly conferred upon them by the Act or these articles, may exercise or delegate to any one or more persons all such powers and do or delegate to any one or more persons the doing of all such acts (including the right to sub-delegate) as may be exercised or done by the company and are not in terms of the Act or by these articles expressly directed or required to be exercised or done by a general meeting, subject, nevertheless, to that management and control-
29.1 not being inconsistent with;
and
29.2 being in compliance with,
any resolution passed by a general meeting. No such resolution passed by a general meeting shall invalidate any prior act of the directors or any delegatee.
30. The directors shall issue and thereafter deal with the rules referred to in clause 2(5) of the memorandum. See also clause 54 below.
31.1 Subject to compliance with the provisions of the Act, a director shall not be liable (in the absence of any agreement to the contrary) to account to the company for any profit or other benefit arising out of any contract entered into by the company in which he is directly or indirectly interested.
31.2 A director shall, if he has, in accordance with the Act, disclosed his interest (if it is material) in the relevant contract or arrangement-
31.2.1 be counted in a quorum for the purpose of a meeting of directors at which he is present to consider any matter, and
31.2.2 be entitled to vote in regard to any matter, relating to any existing or proposed contract or arrangement in which he is interested, other than a contract or arrangement regulating his holding of an office or place of profit under the company or a subsidiary of the company.
DISQUALIFICATION OF DIRECTORS AND TERMINATION OF DIRECTORSHIP
32. A director shall cease to hold office as such if he-
32.1 is prohibited from being or is removed as or is disqualified from acting as a director of a company in terms of the Act;
32.2 gives notice to the company of his resignation as a director with effect from the date of, or such later date as is provided for in, such notice;
32.3 absents himself from meetings of directors for six consecutive months without the leave of the other directors, and they resolve that his office shall be vacated, provided that this provision shall not apply to a director who is represented by an alternate who does not so absent himself;
32.4 is given notice, signed by members holding in the aggregate more than 50% of the total voting rights on a poll of all members then entitled to vote on a poll at a general meeting, of the termination of his appointment.
PROCEEDINGS OF DIRECTORS
33. The directors may-
33.1 meet, adjourn, and otherwise regulate their meetings as they think fit and any director shall be entitled to convene or direct the secretary to convene a meeting of the directors;
33.2 determine what notice shall be given of their meetings and the means of giving that notice, provided that any such prior determination may be varied, depending on the circumstances and reasons for the directors' meeting in question.
34. Unless otherwise determined by the company in general meeting, or by a meeting of the directors at which all the directors are present, the quorum necessary for the transaction of the business of the directors shall be a majority of the directors for the time being in office. A resolution of directors shall be passed by a majority of the votes of the directors present at the meeting at which it is proposed.
35. The directors may elect a chairman and a deputy chairman or deputy chairmen of the directors and determine the period for which each is to hold office. If more than one deputy chairmen are elected, the directors shall, upon their election, determine the order of their seniority. At any meeting of directors, the chairman of the directors, or if he is not present or willing to act as such, the most senior deputy chairman present and willing to act as such, shall act as chairman. If no chairman or deputy chairman has been elected, or is present and willing to act as such, the directors present at any directors' meeting shall choose one of their number to be chairman of the meeting.
36. Subject to the provisions of the Act, a resolution signed by directors (or their alternates, if applicable) whose number is not less than that of a quorum for a meeting of directors, and inserted in the minute book, shall be as valid and effective as if it had been passed at a meeting of directors. Any such resolution may consist of several documents, each of which may be signed by one or more directors (or their alternates, if applicable) and shall be deemed to have been passed on the date on which it was signed by the last director who signed it (unless a statement to the contrary is made in that resolution).
EXECUTIVE DIRECTORS AND MANAGEMENT
37. The directors may appoint from time to time one or more of the directors as executive directors or as managing directors of the company, on such terms and conditions as may be determined from time to time by the directors. The nature and scope of the Managing Director's scope and duties will also be determined by the directors in a mandate signed by all directors and in a written agreement with the managing director, which shall be signed by a director on behalf of the Company and by the managing director.
38. The appointment of an executive director or managing director shall, without prejudice to any claim of any nature whatever which any such director may have against the company, cease if for any reason he ceases to be a director.
DISTRIBUTION OF INCOME
39. Save as is provided in 41, no part of the income or property of the company shall be distributed to its members, and the same shall be applied solely towards the pursuit of the company's objects, provided that this article shall not be construed as prohibiting the payment of expenses to directors as provided for in 26.
WINDING UP
40. If the company is wound up whether voluntarily or compulsorily or deregistered or dissolved, the assets remaining after payment of the liabilities of the company and the costs of winding up shall be given or transferred to some other company or institution or companies or institutions having objects similar to the main object of the company, to be determined by the members of the company at or before the time of its dissolution or, failing such determination, by the Court.
INDEMNITY
41.1 Every director, alternate director, manager, secretary and other officer of the company and any person employed by the company as its auditor is hereby indemnified out of the company's funds against all liability incurred by him in defending any proceedings (whether civil or criminal) arising out of any actual or alleged negligence, default, breach of duty or breach of trust on his part in relation to the company in which judgment is given in his favour or in which he is acquitted or in connection with any matter in which relief is granted to him by the court in terms of the Act.
41.2 Every director, servant, agent or employee of the Association is hereby indemnified by the Association against (and it shall be the duty of the directors out of the funds of the Association to pay) all costs, losses and expenses (including travelling expenses) which such person/s may incur or become liable for by reason of any contract entered into or any act or deed done by such person/s in the discharge of any of his/their respective duties.
NOTICES
42. Subject to the provisions of these articles, a notice to a member or director shall be in writing and shall be given or served by the company upon any member or director either by delivery or by sending it through the post, properly addressed, to-
42.1 a member at his address shown in the register of members or if no such address is so recorded, then at the property owned by the member in the township;
42.2 a director at his postal address shown in the directors' register.
43. A member may by written notice require the company to record an address within the Republic which shall be deemed to be his address for the purpose of the service of notices. The member shall bear the onus of proof that he has notified the company of such address failing which the address/es referred to in 42. shall remain effective.
44. Every notice to a member shall be deemed, until the contrary is proved, to have been received-
44.1 if it is delivered to the member, on the date on which it is so delivered (whether such delivery is at an address of which the member notified the company or is delivered at the property owned by the member in the township); or
44.2 if it is sent by post, on the seventh day after the date on which it is posted in the Republic of South Africa to the address referred to in clauses 42. or 43. above.
45. When a given number of days' notice or notice over any period is required to be given the date on which the notice is served or despatched and the date on which it is deemed to be received shall not be counted in such number of days or period.
46. The omission to give notice of a general meeting or of a meeting of directors to or the non-receipt of, or delay in transmission through the post of, any such notice by or to any member or director, as the case may be, shall not invalidate any resolution passed at any such meeting.
47. LEVIES ON MEMBERS
The company shall levy contributions from its members in order to fund the company's business and attain its purpose and objectives. Details with regard to levies are contained in the rules to which reference is made in clause 2(3) of the company's Memorandum of Association.
48. ACCOUNTS:
The directors shall cause proper books of account to be kept with respect to:
(a) all sums of money received and expended by the Company and the matter in respect of which the receipt and expenditure takes place;
(b) all sales and purchases of goods by the Company; and
(c) the assets and liabilities of the Company.
48.1 The books of account shall be kept at the registered office of the Company or at such other place/s as the Directors think fit, and shall always be open to the inspection of the directors.
48.2 The Directors, shall from time to time, determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company, or any of them, shall be open to the inspection of the members, not being directors, and no member, not being a director, shall have any right of inspecting any account or document of the Company except as conferred by statute or authorised by the directors or by the Company in General Meeting.
48.3 The directors, shall from time to time, cause to be prepared and to be laid before the Company in General Meeting profit and loss accounts, balance sheets and reports properly audited.
48.4 A copy of every balance sheet (including every document required by law to be annexed thereto) which is to be laid before the Company in General Meeting, together with a copy of the Auditor's Report shall, not less than 7 (seven) days before the date of the meeting, be sent to all persons entitled to receive Notices of General Meetings of the Company.
49. BANKING
All monies, bills and notes belonging to the Company shall be paid to or deposited with the Company's Bankers to an account to be opened in the name of the Company. The Company's banking account shall be kept with such banker/s as the directors shall from time to time determine.
50. AUDIT
Auditors shall be appointed and their duties regulated in accordance with the Act.
51. OTHER PROFESSIONAL OFFICERS
Save as specifically provided otherwise in these Articles, the directors shall, at all times, have the right to engage on behalf of the Company, the services of Accountants, Auditors, Attorneys, Advocates, Architects, Engineers, Estate Managers, or any other professional person or firm.
52. ARBITRATION
52.1. Should any doubt, difference of opinion or disagreement ("dispute") arise out of or in connection with any aspect of the provisions of the Memorandum and Articles of the Company or of the rules and regulations referred to in clause 2(3) of the memorandum including, but without limitation, the interpretation of any aspect thereof, then if the members and/or directors cannot resolve the dispute by agreement between them, any member and/or director shall be entitled to require that the dispute be submitted to arbitration in terms of this clause.
52.2. The arbitrator shall be, if the dispute is:
52.2.1. primarily an accounting matter, an independent Chartered Accountant, practising as such in Gauteng, Republic of South Africa, of not less than 15 (fifteen) years' standing; or
52.2.2 primarily a legal matter, a Senior Advocate or Attorney, practising as such in Gauteng, Republic of South Africa, of not less than 15 (fifteen) years' standing; or
52.2.3 any other matter, a suitably qualified independent person nominated and appointed by the parties, and, failing agreement between them, on such nomination or appointment within 5 (five) days after the date on which the arbitration is demanded, or, failing agreement between the parties within such five day period as to whether the dispute concerned is primarily an accounting, legal or other matter as aforesaid then in all such instances, the Arbitrator shall be nominated by the President at that time of the Law Society of the Northern Provinces, who may be instructed by any party to make such nomination and appointment forthwith after the expiry of the aforesaid five day period, and his nomination in such circumstances shall be final and binding on the parties and carried into effect accordingly.
52.3 The arbitration shall be held at a venue in Gauteng in the Republic of South Africa, and in accordance with formalities and/or procedures determined by the Arbitrator in his sole and absolute discretion and shall be held in an informal and summary manner, that is, on the basis that it shall not be necessary to observe and carry out any usual formalities, procedure and/or other requirements normally applicable to judicial arbitration proceedings, nor shall it be necessary to apply the strict rules of evidence.
52.4 The Arbitrator shall be entitled to:
52.4.1 investigate or cause to be investigated any fact, matter or thing, which he may consider to have bearing on the dispute and, for that purpose he shall have the widest powers of investigation and the right to take copies of or make extracts from books or records of whatsoever nature pertaining to all/any of the parties and/or to have the same produced and/or delivered to him at any reasonable place required by him for such purpose.
52.4.2 interview and question under oath or otherwise as he shall determine all/any of the parties (or their duly authorised representatives and/or staff);
52.4.3 decide the dispute according to such principles as he shall consider just and equitable in the circumstances;
52.4.4 make such award, including any award for specific performance, an injunction, damages, interdict, penalty and/or costs (on any scale) as he, in his sole and absolute discretion, may deem appropriate in the circumstances.
52.5 The arbitration shall be held as quickly as possible after it has been demanded with a view to it being completed within a maximum of 14 (fourteen) days after such demand is made.
52.6 Immediately after the Arbitrator has been nominated and appointed as aforesaid, any party shall be entitled to call upon the Arbitrator to fix a date and place as aforesaid when and where the arbitration is to be held, and to settle the procedure and manner in which the arbitration proceedings will be held, as aforesaid.
52.7 Any award which may be made by the Arbitrator in accordance with the aforegoing shall be:
52.7.1 final and binding on the parties and not subject to appeal;
52.7.2 carried into effect by them; and
52.7.3 capable of being made an Order of any court of competent jurisdiction.
53. AMENDMENT
These Articles of Association may only be altered or varied or added to or detracted from by a resolution carried by not less than 75% (seventy five percent) of all members of the company; subject to the proviso that for so long as the developer owns 5% (five percent) or more of erven, possible subdivisions of erven and potential sectional title units in the townships defined in 1.1(k) above) no such alteration, variation, addition or detraction shall be valid unless first approved of in writing by the developer, who will not unreasonably withhold approval, it being agreed, however, that the developer’s own interest will predominantly determine the question of reasonableness.
RULES
The rules contemplated in section 2(1) and 2(3) of the memorandum are contained in a separate document.
54.1 DURATION OF BINDING NATURE OF RULES
Upon this company being incorporated, the rules shall become binding on all members of the Association as well as on occupants of erven in the townships who are not also owners and thus not members of the Association. The rules will become binding on every purchaser of an erf in the township on transfer of the erf in the name of the purchaser. The registered owners of erven in the townships are responsible, as members of the Association, to ensure that occupants of their erven who are not members of the Association as well as the members' families, tenants, visitors, friends, employees, contractors and invitees abide by the rules of the Association. In order to ensure that occupants who are not also members of the Association are bound to the rules of the Association. A member shall before parting with the right to occupy the property in favour of any tenant or other occupant ensure that such intending tenant or other occupant signs a written acknowledgement in favour of the HOA to which the intending tenant or other occupant agrees to be bound to the rules of the Association. The said acknowledgement will be in such format as the Association may prescribe. Until the intending tenant or other occupant has signed such acknowledgement and it has been handed to the Association, the Association is not obliged to allow the said tenant or occupant any rights and/or privileges of an owner in the estate. Furthermore, should an owner part with the right of occupation of his property without procuring such an acknowledgement in writing by the tenant or other occupant and furnishing it to the Association, then from the date upon which the tenant or other occupant occupies the property until such time as the written acknowledgement is furnished to the Association, the Association will be entitled to impose a penalty on the owner / member equal to twice the monthly HOA levy payable by owners. Should the owner / member allege that the penalty is unreasonable or in excess of the damage suffered by the Association, the onus of proving that will rest on the owner / member. It is important to note that the rules provide that any act or omission by any of the aforesaid persons which, had it been done or omitted by the member would have amounted to a breach of any rule of the Association, will be deemed to have been the act or omission of the member and hence a breach of the rules by the member.
54.2 ALTERATION ETC OF RULES
Subject to the proviso that any provision contained in the Association's memorandum or articles of association may only be amended in terms of the relevant provisions of the said memorandum and articles of association and of the Companies Act, 1973, the Association may from time to time vary or alter or retract or add to these rules and shall do so at annual or extraordinary general meetings of members as provided for in the memorandum and articles of association; provided that in spite of any contrary provision of the memorandum or articles of association or of the Companies Act, any such variation, alteration, retraction or addition of or to these rules shall only be done by a two-thirds majority vote taken at a general meeting of members. Furthermore, for so long as the developer owns 5% (five percent) or more of erven, possible subdivisions of erven and potential sectional title units in the townships defined in 1.1(k) above) no such alteration, variation, addition or detraction shall be valid unless first approved of in writing by the developer, who will not unreasonably withhold approval, it being agreed, however, that the developer’s own interest will predominantly determine the question of reasonableness.
54.3 RULES BINDING ALSO ON NON OWNER RESIDENTS
As stated above, all rules which are applicable to members of the Association (in their capacities as owners of erven in the township) are, mutatis mutandis, applicable also to residents who are not members of the Association. Hence, unless the context clearly indicates otherwise, references to the owner in these rules are references, mutatis mutandis, also to other occupants (without, however, detracting from the liability and/or obligations of members who are owners). An owner shall not let out his erf in the township or otherwise part with the right to occupy it unless and until the tenant or other occupant shall have agreed in writing with the Association to be bound by the rules.
1. Particulars of subscribers Date of signature of subscriber
Full names : JOHAN VORSTER
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1. Particulars of subscribers Date of signature of subscriber
Full names : ROBIN VORSTER
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1. Particulars of subscribers Date of signature of subscriber
Full names : ERF 27 ERAND (PROPRIETARY) LIMITED
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1. Particulars of subscribers Date of signature of subscriber
Full names : GABRIEL GERT FREDERIK STOLTZ
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Reproduced under Government Printers Copyright Authority 10123 dated 25 January 1996
1. Particulars of subscribers Date of signature of subscriber
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Reproduced under Government Printers Copyright Authority 10123 dated 25 January 1996
Fauna and Flora at JBay