Memorandum of Incorporation

Memorandum of Incorporation

The corporation is formed by a The Arabella Country Estate for the purpose of marketing, managing, and selling of residents and plots within a Arabella Country Estate. It grants the homeowners privileged voting rights in governing the association, membership in the Arabella homeowners association by a residential buyer is with a condition of purchase of a property within the Golf Estate.

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1.1 In this Memorandum of Incorporation, unless the context clearly indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings –
1.1.1 “Act” means the Companies Act, No 71 of 2008, as amended, consolidated or re-enacted from time to time, and includes all Schedules to such Act and the Regulations;
1.1.2 “Association” means the non-profit company named on the first page of this Memorandum of Incorporation, duly incorporated under the registration number endorsed thereon;
1.1.3 “Board” means the Board of Directors from time to time of the Association;
1.1.4 “Chairman” means the chairman or the deputy chairman of the Board from time to time;
1.1.5 “Common Facilities” means the recreational facilities, bulk services and infrastructure, security facilities, paths, roads, parking facilities, gardens and landscaped areas, terraces and other open spaces and other amenities and facilities situated on the Property and the Phase 2 Land and which are intended for the shared use of Members and their invitees;
1.1.6 “Directors” or “Director” means a member of the Board as contemplated in section 66 of the Act, or an alternate Director, and includes any person occupying the position of a Director or alternate Director, by whatever name designated;
1.1.7 “Electronic Communication” has the meaning set out in section 1 of the Electronic Communications and Transactions Act, No 25 of 2002;
1.1.8 “Erf” means any subdivided portion of the Property and includes (but is not limited to) residential erven, the Golf Course and that Erf on which the Hotel is located;
1.1.9 “Founding Member” means Hermanus River & Country Estate (Proprietary) Limited or its successor in title (currently HPF (Pty) Ltd) for so long as it is the owner of an Erf;
1.1.10 “Golf Course” means the golf course established on the Property;
1.1.11 “Golf Course Owner” means the owner from time to time of the Golf Course;
1.1.12 “Hotel” means the 145 (one hundred and forty five) room hotel situated on Portion 273 Caledon trading under the name “Arabella Hotel and Spa” or such other name approved by the Hotel Owner;
1.1.13 “Hotel Owner” means the owner from time to time of the erf on which the Hotel is located;
1.1.14 “Manager” means the manager/s appointed by the Association from time to time having the functions set out in clause 36;
1.1.15 “Member” means a member of the Association, being the persons or entities referred to in clause 10 and which have the specified rights in respect of the Association as contemplated in item 4 of Schedule 1 of the Companies Act;
1.1.16 “Owner” means a registered owner of an erf;
1.1.17 “Property” means Portion 4 (a Portion of Portion 3) of the farm Hermanus River No. 542, Caledon;
1.1.18 “Regulations” means the regulations published in terms of the Act from time to time;
1.1.19 “Residential Owner” means the Owner of an Erf which is used or intended to be used for private residential purposes;
1.1.20 “Secretary” means the secretary of the Association from time to time;
1.1.21 “South Africa” means the Republic of South Africa.
1.2 In this Memorandum of Incorporation, unless the context clearly indicates otherwise –
1.2.1 words and expressions defined in the Act and which are not defined herein shall have the meanings given to them in the Act;
1.2.2 a reference to a section by number refers to the corresponding section of the Act notwithstanding the renumbering of such section after the date on which the Association is incorporated;
1.2.3 in any instance where there is a conflict between a provision (be it expressed, implied or tacit) of this Memorandum of Incorporation and –
1.2.3.1 an alterable or elective provision of the Act, the provision of this Memorandum of Incorporation shall prevail to the extent of the conflict; and
1.2.3.2 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 unless the Memorandum of Incorporation imposes on the Association a higher standard, greater restriction, longer period of time or similarly more onerous requirement, in which event the relevant provision of this Memorandum of Incorporation shall prevail to the extent of the conflict;
1.2.4 clause headings are for convenience only and are not to be used in its interpretation;
1.2.5 an expression which denotes -
1.2.5.1 any gender includes the other gender;
1.2.5.2 a natural person includes a juristic person and vice versa; and
1.2.5.3 the singular includes the plural and vice versa;
1.2.6 if the due date for performance of any obligation in terms of this Memorandum of Incorporation is a day which is not a business day then (unless otherwise stipulated), the due date for performance of the relevant obligation shall be the immediately succeeding business day;
1.2.7 any words or expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout the whole of this Memorandum of Incorporation;
1.2.8 any reference to a notice shall be construed as a reference to a written notice, and shall include a notice which is transmitted electronically in a manner and form permitted in terms of the Act and/or the Regulations.
1.3 Any reference in this Memorandum of Incorporation to –
1.3.1 “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic from time to time;
1.3.2 “law” means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law and a reference to any statutory enactment shall be construed as a reference to that enactment as amended or substituted from time to time; and
1.3.3 “writing” means legible writing and in English and includes printing, typewriting, lithography or any other mechanical process, as well as any electronic communication in a manner and form permitted in terms of the Act and/or the Regulations.
1.4 The words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
1.5 Unless otherwise provided in this Memorandum of Incorporation or the Act, defined terms appearing herein in title case shall be given their meaning as defined, while the same terms appearing in lower case shall (except where defined in the Act) be interpreted in accordance with their plain English meaning.
1.6 Where a particular number of business days is provided for between the happening of one event and another, the number of days must be calculated by excluding the day on which the first event occurs and including the day on which or by which the second event is to occur.
1.7 Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention.
1.8 Any reference herein to “this Memorandum of Incorporation” shall be construed as a reference to this Memorandum of Incorporation as amended from time to time.
2.1 The Association is a pre-existing company as defined in the Act and, as such, continues to exist as a non-profit company as if it had been incorporated and registered in terms of the Act, as contemplated in item 2 of the Fifth Schedule to the Act, and this Memorandum of Incorporation replaces and supersedes the Memorandum and Articles of Association of the Association applicable immediately prior to the filing hereof.
2.2 The Association is incorporated in accordance with and governed by –
2.2.1 the unalterable provisions of the Act, subject only to such higher standards, greater restrictions, longer periods of time or similarly more onerous requirements as may be imposed on the Association by this Memorandum of Incorporation in relation to such unalterable provisions;
2.2.2 the alterable provisions of the Act, subject to the limitations, extensions, variations or substitutions set out in this Memorandum of Incorporation;
2.2.3 the other provisions of this Memorandum of Incorporation; and
2.2.4 its Rules, if any.
3.1 The object of the company is –
3.1.1 to carry on, to promote, advance and to protect communal interests, safety and welfare of Members of the Association, including but not limited to controlling, managing operating, repairing and maintaining the Common Facilities, controlling the aesthetic appearance of the Property, including landscaping, buildings and improvements, controlling traffic, implementing security measures for controlled access to the Property regulating and/or controlling any conduct on or about the Property and Erven, and the delivery, maintenance and repair of bulk services and infrastructure within the Property; and
3.1.2 to create an association amongst Members of the Association which will entitle Members to share in the use of and benefit from recreational facilities, security facilities, parking facilities, gardens, terraces and other Common Facilities and amenities on a common basis generally to regulate and control access to and the use of the Common Facilities and own erven to share the costs incurred in connection with the objects described in clause 3.1.1 and this clause 3.1.2 as a common expense.
3.2 The provisions of this Memorandum of Incorporation are consistent with the principles set out in item 1(2) to item 1(9) of Schedule 1 to the Act in so far as such principles are applicable to the Association and no amendment of this Memorandum of Incorporation shall be competent to the extent that it is contrary to or negates any of such principles.
4.1 The Association is a non-profit company, and accordingly the Association –
4.1.1 must apply all of its assets and income, however derived, to advance its stated objects set out in clause 3.1; and
4.1.2 subject to clause 4.1.1, may –
4.1.2.1 acquire and hold securities issued by a profit company; or
4.1.2.2 directly or indirectly, alone or with any other person, carry on any business, trade or undertaking consistent with or ancillary to its stated objects.
4.2 The Association, as a non-profit company, must not, directly or indirectly, pay any portion of its income or transfer any of its assets, regardless as to how the income or asset was derived, to any person who is or was an incorporator of the Association, or who is a Member or Director, or person appointing a Director of the Association, except –
4.2.1 as reasonable –
4.2.1.1 remuneration for goods delivered or services rendered to, or at the direction of the Association; or
4.2.1.2 payment of, or reimbursement for, expenses incurred to advance a stated object of the Association;
4.2.2 as payment of an amount due and payable by the Association in terms of a bona fide agreement between the Association and that person or another;
4.2.3 as payment in respect of any rights of that person, to the extent that such rights are administered by the Association in order to advance a stated object of the Association; or
4.2.4 in respect of any legal obligation binding on the Association.
4.3 Despite any provision in any law or agreement to the contrary, upon the winding-up or dissolution of the Association —
4.3.1 no past or present Member or Director of the Association, or person appointing a Director of the Association, is entitled to any part of the net value of the Association after its obligations and liabilities have been satisfied; and
4.3.2 the entire net value of the Association must be distributed to one or more non-profit companies, registered external non-profit companies carrying on activities within the Republic, voluntary associations or non-profit trusts —
4.3.2.1 having objects similar to the Association’s main object; and
4.3.2.2 as determined—
4.3.2.2.1 in terms of this Memorandum of Incorporation; or
4.3.2.2.2 by the Members, failing whom the Directors, at or immediately before the time of its dissolution; or
4.3.2.2.3 by the court, if no such determination is made in this Memorandum of Incorporation or by the Members or Directors.
No person shall, solely by reason of being an incorporator or Director or Member of the Association, be liable for any liabilities or obligations of the Association.
6.1 The Association has all of the legal powers and capacity of an individual for purposes of carrying out its object, except to the extent that a juristic person is incapable of exercising any such power or having any such capacity, and no provision contained in this Memorandum of Incorporation should be interpreted or construed as negating, limiting, or restricting those powers in any way whatsoever.
6.2 The legal powers and capacity of the Association are not subject to any restrictions, limitations or qualifications, as contemplated in section 19(1)(b)(ii) of the Act.
Incorporation of the Association as a non-profit company in terms of the Act and compliance with the provisions of the Act does not necessarily qualify the Association for any particular status, category, classification or treatment in terms of the Income Tax Act, No 58 of 1962, or any other legislation, except to the extent that any such legislation provides otherwise.
This Memorandum of Incorporation does not contain any restrictive conditions applicable to the Association as contemplated in section 15(2)(b) or (c) of the Act.
The Association does not elect, in terms of section 34(2) of the Act, to comply voluntarily with the extended accountability provisions set out in Chapter 3 of the Act.
10.1 Membership of the Association is restricted to Owners and no other person shall be entitled to be a Member of the Association.
10.2 Where two or more persons are Owners of an Erf, then all the Owners of that Erf shall be deemed to be one Member of the Association.
10.3 When a Member ceases to be the Owner of an Erf, he/she shall ipso facto cease to be a Member of the Association.
10.4 In addition to the rights of membership prescribed by the Act and by this Memorandum of Incorporation, membership of the Association shall confer upon each Member the right to receive –
10.4.1 copies of the annual financial statements of the Association; and
10.4.2 notice of, and to attend, speak and vote at general meetings of the Association.
A Member may not resign as a member of the Association for so long as he is the Owner of an Erf.
12.1 The Association shall maintain a Members’ register in the form prescribed by the Act and maintain such register in accordance with the prescribed standards.
12.2 The Members’ register maintained in accordance with the Act shall be sufficient proof of the facts recorded in it, in the absence of evidence to the contrary.
12.3 The Members’ register shall be open to inspection by any Member free of charge at any reasonable time during the ordinary business hours of the Association.
13.1 The Board shall from time to time, impose levies upon the Members for the purpose of meeting all the expenses which the Association has incurred, or which the Directors reasonably anticipate the Association will incur, in the furtherance of the Association’s objects as stated in clause 3.
13.2 Save as is otherwise provided in this Memorandum of Incorporation and/or as may be agreed between the Association and any Member -
13.2.1 the Directors shall be entitled in their sole discretion to allocate expenses between different categories of properties, i.e. residential erven, the Hotel and any other category of property; and
13.2.2 expenses allocated to residential erven in terms of clause 13.2.1 shall be paid by the Residential Owners proportionally to the size of each residential Erven and shall be calculated in accordance with the following principles:
13.2.2.1 the expenses to be paid by Residential Owners of Erven measuring less than or equal to 745m² (seven hundred and forty five square metres) shall be calculated by multiplying the actual size of the Erf (measured in square metres (m²)) by a fixed rand amount determined annually by the Board and approved of by the Members at the annual general meeting;
13.2.2.2 owners of residential erven measuring more than 745m² (seven hundred and forty five square metres), shall pay the following –
13.2.2.2.1 an amount calculated by multiplying 745m² (seven hundred and forty five square metres) by the fixed rand amount determined by the Board and approved by Members as contemplated in clause 13.2.2.1; plus
13.2.2.2.2 an additional amount calculated by multiplying the difference between the actual size of the erf (provided that if the actual size exceeds 855m² (eight hundred and fifty five square metres) then the actual size shall always be deemed to be a maximum of 855m² (eight hundred and fifty five square metres) for purposes of this article 11) and 745 m² (seven hundred and forty five square metres), by 50% (fifty percent) of the fixed rand amount determined by the Board and approved by members as contemplated in article 13.2.2.1;
13.2.3 expenses allocated to erven other than residential erven shall be paid and shared on the basis of a fixed rand amount per square metre of an Erf or such other equitable basis as may be determined by the Directors,
provided that any Member who is the Owner of more than one Erf shall be liable to make payment of such share in respect of each Erf owned by him.
13.3 If in the sole discretion of the Directors -
13.3.1 any expense is directly attributable to or increased by the specific use to which any Erf is put, the Member who is the owner of the relevant portion shall be liable for such expense or additional expense as the case may be; and
13.3.2 any facility or service is utilised by any Member to such an extent as to reasonably justify a greater contribution to the relevant expense than a contribution calculated strictly in accordance with clause 13.2, the Directors shall be entitled to make such special levy upon the relevant Member as may be reasonable in the circumstances.
13.4 The Directors shall, prior to the end of each financial year, prepare an itemised estimate of the anticipated income and expenditure (which may include a reasonable provision for contingencies) of the Association during the ensuing financial year, estimate the amount required to be levied upon the Members during such ensuing financial year and make a levy upon the Members in such estimated amount.
13.5 The Directors shall, as soon as possible after the imposition of the levy determine the amount payable by each Member and shall forthwith advise each Member in writing of the amount payable.
13.6 Such amount shall be payable in equal monthly (or such other intervals as the Directors may from time to time determine) instalments payable in advance on the first day of each month.
13.7 The Directors may from time to time make special levies upon the Members or call upon them to make special contributions in respect of all such expenses which are not included in any estimates made in terms of clause 13.4. Such levies and contributions may be payable in one sum or by such instalments and at such time or times as the Directors shall deem fit.
13.8 Interest shall be payable on arrear levies at such rate as may from time to time be determined by the Directors.
13.9 Any amount due by a Member by way of a levy or interest thereon shall be a debt due by him to the Association.
13.10 Notwithstanding the aforegoing no levies shall be payable by the Founding Member in respect of unsold erven.
13.11 The obligation of a Member to pay levies shall cease upon his ceasing to be a Member, without prejudice to the Association’s rights to recover arrear levies and interest thereon.
13.12 No levies or interest paid by a Member shall under any circumstances be repayable by the Association upon such Member ceasing to be a Member.
13.13 A Member’s successor in title to an Erf shall be liable as from the date upon which he becomes a Member pursuant to the transfer of that portion, to pay the levy and interest thereon attributable to that Erf.
13.14 A Member shall be liable for and pay all legal costs, including costs as between attorney and client and collection commission, expenses and charges incurred by the Association in obtaining the recovery of arrear levies or any other arrear amounts due and owing by such Member to the Association.
13.15 No Member shall be entitled to any of the privileges of membership unless and until he shall have paid every levy and interest thereon, and any other sum, if any, which may be due and payable by that Member to the Association, from whatsoever cause arising.
13.16 The Directors shall not be entitled to undertake on behalf of the Association any works of a capital nature, without the sanction of an ordinary resolution of the Association in general meeting.
13.17 The Directors shall for the period from the date of commencement of business of the Association to the last day of the turnover year of the Association in which such commencement date occurs raise levies in accordance with the principles set out above, mutatis mutandis.
13.18 The Association shall be entitled to charge a reasonable fee for the use of recreational amenities and other facilities.
14.1 Subject to any restriction imposed or direction given at a general meeting of the Association, the Directors may from time to time make rules in regard to the use and enjoyment of Common Facilities and any conduct on the Property and Erven by inter alia Owners including in particular and without limiting the generality of the aforegoing with regard to -
14.1.1 the preservation of the natural environment including vegetation and flora and fauna on the Property;
14.1.2 the use and allocation of private parking areas for Owners on the Property including their guests;
14.1.3 the keeping of animals, reptiles, fish or birds;
14.1.4 the use of recreation and entertainment areas and amenities and facilities (including but not limited to other sporting facilities) and the right to levy charges for the use thereof;
14.1.5 the use and control of business premises forming part of the Property;
14.1.6 the storage of flammable and other harmful substances;
14.1.7 the conduct of any person and the prevention of nuisance of any nature to any Owner;
14.1.8 the introduction of traffic calming measures;
14.1.9 the introduction and maintenance of security facilities;
14.1.10 the imposition of fines and other penalties (including building penalties) that may be payable by and enforced against Members;
14.1.11 building operations by members on Erven, including but not limited to the common cement and completion of buildings and construction operations;
14.1.12 generally such other matters as may be necessary for the harmonious and beneficial use and enjoyment of the Property and the Common Facilities;
14.1.13 the aesthetic appearance, design, specifications and maintenance of dwelling houses and/or outbuildings; and
14.1.14 restrictions against parking and storage of boats, caravans and trailers.
14.2 All rules made by the Directors in accordance with the provisions of clause 14.1 shall be reasonable and shall apply equally to all Owners.
14.3 For purposes of the enforcement of any of the rules made by the Directors in terms hereof, the Directors may -
14.3.1 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 debit the cost of so doing to the Member concerned, which amount shall then be deemed to be a debt owing by the Member concerned to the Association;
14.3.2 take such other action, including court proceedings, as they may deem fit.
14.4 In the event of any breach of the rules by any Member’s tenants, or his/her guests, such breach shall be deemed to have been committed by the Member himself/herself, but without prejudice to the aforegoing, 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.
14.5 In the event of any Member disputing the fact that he has committed a breach of any of the rules aforesaid, a committee of 3 (three) directors appointed by the Chairperson for that purpose, shall adjudicate upon the issue at such time and in such manner and according to such procedure as the Chairperson may direct.
14.6 Notwithstanding the aforegoing, the Directors may in the name of the Association 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.
14.7 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.
14.8 Each Member undertakes to the Association that he/she shall comply with all rules made in terms of clause 14.1.
The Directors shall have the power, without prejudice to any other rights of the Association, to -
15.1 provide recreational facilities for use by Members;
15.2 provide and maintain security facilities and services on and about the Property;
15.3 engage the services of a security company or other personnel to patrol the Property and generally to provide security services to the Property;
15.4 control access to the Property;
15.5 provide and maintain an entrance gate and guardhouse to control access to the Property;
15.6 control parking and introduce traffic calming measures;
15.7 perform such other acts and functions as may be reasonably necessary to give effect to the main object of the Association.
The Directors shall have control of all recreational facilities, security facilities, traffic calming measures, gate and guardhouse, parking and other Common Facilities and amenities (if any).
17.1 The Directors may from time to time, and shall if required by the Members of the Association in general meeting, appoint in terms of a written contract a Manager to control, manage and administer the Association and to exercise such powers and duties as may be entrusted to the Manager, including the power to collect contributions levied.
17.2 The Directors shall ensure that there is included in the contract of appointment of the Manager a provision to the effect that if he is in breach of any of the provisions of his contract, or if he is guilty of conduct which at common law would justify the termination of a contract between master and servant, the Directors may, without notice, cancel such contract of appointment and the manager shall have no claim whatsoever against the Association or any of the Members as a result of such cancellation.
17.3 The contract with the Manager shall further provide for the appointment to be revoked and the Manager shall cease to hold office if :
17.3.1 where the Manager is a company, an order is made for its provisional or final liquidation; or where the Manager is a natural person, he surrenders his estate as insolvent or his estate is sequestrated; or
17.3.2 the Manager is convicted of an offence involving fraud or dishonesty; or, where the Manager is a company, any of its Directors is convicted of an offence involving fraud or dishonesty; or
17.3.3 a special resolution of the Members of the Association is passed to that effect; provided that in such event the Manager so removed from office shall not be deprived of any right he may have to claim compensation or damages for breach of contract.
17.4 The Manager shall keep full records of his administration and shall report to the Association on all matters which in his opinion detrimentally affect the value of the Property.
17.5 The Directors shall give reasonable prior notice to the Manager of all meetings of the Directors and the Manager shall be entitled to be present thereat.
17.6 The Directors shall from time to time furnish to the Manager copies of the minutes of all meetings of the Directors and of the Association.
17.7 Should a Manager not be appointed in terms of this clause, then all references in the Articles of the Manager shall be deemed to be a reference to the Directors.
17.8 The appointment of a manager, if any, shall be subject to the prior written approval of the Founding Member.
18.1 No Erf may be sold, transferred, leased or otherwise alienated or disposed of to any person unless –
18.1.1 the Association has granted its prior written approval, which approval shall be substantially in the form set out in Schedule “1″ hereto and which approval may not be unreasonably withheld;
18.1.2 any person to whom an Erf is to be alienated has agreed in writing to be bound by this Memorandum of Incorporation by signing a deed of adherence substantially in the form of Schedule “2″ and to remain a Member for so long as he/she is and remains the registered owner of the Erf.
18.2 Members wishing to sell, transfer, lease or otherwise alienate or dispose of any Erf shall be obliged to pay or secure payment, to the satisfaction of the Association, levies for a period of not less than 3 (three) months.
18.3 Transfer of any Erven must be effected before the expiry of the period referred to in clause 18.2.
18.4 No Erf may be marketed on the Property, whether for sale or for rent, through the agency of any estate or other agent other than an estate agent approved in writing by the Association.
18.5 Notwithstanding the provisions of clause 18.1 and clause 18.4, registration of transfer of an Erf to any person shall ipso facto constitute that person as a Member.
18.6 The Association may claim from any Member any arrear levies or interest or the amount due by him/her to the Association at the time of his ceasing to be Member notwithstanding that the Erf may have been transferred to a third party.
19.1 In order to maintain high standards and to ensure an attractive and harmonious development no building or structure may be erected on any Erf and the external appearance (including the colour) of any existing or future building or structure may not be changed unless the architectural design, plans and specifications (including materials) of such building or structure have been approved in writing by the Association or an architect nominated by it. The Association shall be entitled to charge a reasonable fee for the inspection of any plans and/or specifications submitted to it for approval, whether or not approval is granted.
19.2 For purposes of clause 19.1 the Directors shall be entitled, but not obliged, to establish an aesthetics committee which shall be comprised of such persons as may be appointed by the Directors.
19.3 All buildings and structures shall be built in a good and proper and workmanlike manner and strictly in accordance with the plans and specifications approved in accordance with clause 19.1.
19.4 Such Erf and all improvements thereon shall be kept and maintained in a neat and tidy condition to the satisfaction of the Association.
20.1 A golf club has been established on the Property for the benefit of the Members.
20.2 Each Member and his/her/its successors-in-title to an Erf shall be entitled annually to nominate 2 (two) persons to be members of the golf club who shall be entitled to be and remain members thereof for so long as the member remains the Owner, provided that they pay all the fees and charges referred to in clause 20.3 below.
20.3 The persons nominated in terms of clause 20.2 shall not be required to pay any entrance fee for membership of the golf club but may be required to pay such annual subscriptions, green fees, and other charges as are generally levied on members for the use of those facilities.
20.4 It is recorded that Members of the Association shall be entitled to a reduction of 50% (fifty percent) in respect of green fees generally payable.
21.1 The Board, or any prescribed officer of the Association authorised by the Board, is entitled to call a meeting of Members at any time.
21.2 Subject to the provisions of section 60 of the Act dealing with the passing of resolutions of Members other than at a meeting of Members, the Association shall hold a meeting of Members –
21.2.1 at any time that the Board is required by the Act or this Memorandum of Incorporation to refer a matter to Members for decision; or
21.2.2 whenever required in terms of the Act to fill a vacancy on the Board; or
21.2.3 when required in terms of clause 21.3 or by any other provision of this Memorandum of Incorporation.
21.3 The Board shall call a meeting of Members if demanded to do so by Members representing at least 25% (twenty five percent) of the voting rights entitled to be exercised at any general meeting, and –
21.3.1 each such demand describes the specific purpose for which the meeting is proposed; and
21.3.2 in aggregate, demands for substantially the same purpose are made and signed by the holders, at the earliest time specified in any of those demands, of at least 10% (ten percent) of the voting rights entitled to be exercised in relation to the matter proposed to be considered at the meeting.
21.4 Notwithstanding any provision of the Act to the contrary, and in addition to other meetings of the Association that may be convened from time to time, the Association shall convene an annual general meeting of its Members once in each calendar year, but no more than 15 (fifteen) months after the date of the previous annual general meeting, provided that any such annual general meeting shall be capable of being held by Electronic Communication in accordance with the further provisions of this Memorandum of Incorporation.
21.5 Each annual general meeting of the Association contemplated in clause 21.4 shall provide for at least the following business to be transacted –
21.5.1 the presentation of the financial statements for the immediately preceding financial year of the Association;
21.5.2 the election of Directors, to the extent required by the Act or by this Memorandum of Incorporation;
21.5.3 the appointment of an auditor for the following financial year, to the extent that the annual financial statements of the Association are required to be audited in terms of the Act or by this Memorandum of Incorporation; and
21.5.4 any matters raised by the Members, with or without advance notice to the Association.
21.6 Save as otherwise provided herein, the Association is not required to hold any other meetings of Members other than those specifically required by the Act.
21.7 The Board may determine the location of any meeting of Members, provided it takes place in the Province of the Western Cape, and the authority of the Board and the Association in this regard is not limited or restricted by this Memorandum of Incorporation.
21.8 The minimum number of days for the Association to deliver a notice of a meeting of members to the Members as required by section 62 of the Act is as provided for in section 62(1) of the Act and, accordingly, any such notice shall be delivered to all Members as of the record date for the meeting at least 15 (fifteen) business days before the meeting is to begin.
21.9 The quorum requirement for a meeting of Members to begin or for a matter to be considered are as set out in section 64(1) of the Act without variation and, accordingly –
21.9.1 a meeting of Members may not begin until sufficient persons are present at the meeting to exercise, in aggregate, at least 25% (twenty five percent) of the voting rights that are entitled to be exercised in respect of at least one matter to be decided at the meeting; and
21.9.2 a matter to be decided at a meeting of Members may not begin to be considered unless sufficient persons are present at the meeting to exercise, in aggregate, at least 25% (twenty five percent) of all of the voting rights that are entitled to be exercised in respect of that matter at the time the matter is called on the agenda,
provided that a meeting may not begin, or a matter begin to be debated, unless –
21.9.3 at least 3 (three) Members are present at the meeting; and
21.9.4 the requirements of clauses 21.9.1 and 21.9.2 are satisfied.
21.10 The time periods allowed in sections 64(4) and (5) of the Act apply to the Association without variation and, accordingly, if within 1 (one) hour after the appointed time for a meeting to begin, the requirements of clause 21.9 –
21.10.1 for that meeting to begin have not been satisfied, the meeting shall be postponed, without any motion, vote or further notice, for 1 (one) week;
21.10.2 for consideration of a particular matter to begin have not been satisfied –
21.10.2.1 if there is other business on the agenda of the meeting, consideration of that matter may be postponed to a later time in the meeting without any motion or vote; or
21.10.2.2 if there is no other business on the agenda of the meeting, the meeting shall be adjourned, without any motion or vote, for 1 (one) week,
provided that the person intended to chair a meeting that cannot begin due to the operation of clause 21.9 may extend the 1 (one) hour limit allowed in clause 21.10 for a reasonable period on the grounds that –
21.10.3 exceptional circumstances affecting weather, transportation or Electronic Communication have generally impeded or are generally impeding the ability of Members to be present at the meeting; or
21.10.4 one or more particular Members, having been delayed, have communicated an intention to attend the meeting, and those Members, together with others in attendance, would satisfy the requirements of clause 21.9.
21.11 The accidental omission to give notice of any meeting to any particular Member or Members shall not invalidate any resolution passed at any such meeting.
21.12 The Association shall not be required to give further notice of a meeting that has been postponed or adjourned in terms of clause 21.10 unless the location for the meeting is different from –
21.12.1 the location of the postponed or adjourned meeting; or
21.12.2 the location announced at the time of adjournment, in the case of an adjourned meeting.
21.13 If at the time appointed in terms of clause 21.10 for a postponed meeting to begin, or for an adjourned meeting to resume, the requirements of clause 21.9 have not been satisfied, the Members present in person or by proxy will be deemed to constitute a quorum.
21.14 After a quorum has been established for a meeting, or for a matter to be considered at a meeting, the meeting may continue, or the matter may be considered, so long as at least 1 (one) Member with voting rights entitled to be exercised at the meeting, or on that matter, is present at the meeting, and the provisions of section 64(9) of the Act are not limited or restricted by this Memorandum of Incorporation.
21.15 The maximum period allowable for an adjournment of a meeting of Members is as set out in section 64(12) of the Act, without variation.
21.16 The chairperson shall preside as chairperson at every Member’s meeting.
21.17 If there is no such chairperson, or if at any meeting he/she is not present within 15 (fifteen) minutes after the time appointed for holding the meeting or is unwilling to act as chairperson, the Directors present shall choose 1 (one) of their number to be chairperson. If no Director is willing to act as chairperson or if no Director is present within 15 (fifteen) minutes after the time appointed for holding the meeting, the Members present shall choose one of their number to be chairperson of the meeting.
21.18 The chairperson of a meeting of Members may -
21.18.1 appoint any firm or persons to act as scrutineers for the purpose of checking any powers of attorney received and for counting the votes at the meeting;
21.18.2 act on a certificate given by any such scrutineers without requiring production at the meeting of the forms of proxy or himself counting the votes.
21.19 If any votes were counted which ought not to have been counted or if any votes were not counted which ought to have been counted, the error shall not vitiate the resolution, unless -
21.19.1 it is brought to the attention of the chairperson at the meeting; and
21.19.2 in the opinion of the chairperson of the meeting, it is of sufficient magnitude to vitiate the resolution.
21.20 Any objection to the admissibility of any vote (whether on a show of hands or on a poll) shall be raised -
21.20.1 at the meeting or adjourned meeting at which the vote objected to was recorded; or
21.20.2 at the meeting or adjourned meeting at which the result of the poll was announced,
and every vote not then disallowed shall be valid for all purposes. Any objection made timeously shall be referred to the chairperson of the meeting, whose decision shall be final and conclusive.
21.21 Even if he is not a Member
21.21.1 any Director; or
21.21.2 the company’s attorney (or where the company’s attorneys are a firm, any partner or Director thereof),
may attend and speak at any general meeting, but may not vote, unless he is a Member or the proxy or representative of a Member.
22.1 The Association may conduct a meeting of Members entirely by Electronic Communication or provide for participation in a meeting by Electronic Communication, as set out in section 63 of the Act, and the power of the Association to do so is not limited or restricted by this Memorandum of Incorporation. Accordingly –
22.1.1 any meeting of Members may be conducted entirely by Electronic Communication; or
22.1.2 one or more Members, or proxies for Members, may participate by Electronic Communication in all or part of any meeting of Members that is being held in person,
so long as the Electronic Communication employed ordinarily enables all persons participating in that meeting to communicate concurrently with each other and without an intermediary, and to participate reasonably effectively in the meeting.
22.2 Any notice of any meeting of Members at which it will be possible for Members to participate by way of Electronic Communication shall inform Members of the ability to so participate and shall provide any necessary information to enable Members or their proxies to access the available medium or means of Electronic Communication, provided that such access shall be at the expense of the Member or proxy concerned.
23.1 At a meeting of the Association -
23.1.1 every Residential Owner present and entitled to exercise voting rights shall be entitled to 1 (one) vote in respect of each Erf which it is the registered owner; and
23.1.2 the Golf Course Owner and the Hotel Owner shall jointly have the same number of votes as those of Residential Owners, which shall be allocated equally between the Golf Course Owner and the Hotel Owner, provided that if such allocation results in a fraction, the additional vote shall be allocated to the Golf Course Owner.
23.2 At any meeting of the Association a declaration by the chairperson that a resolution has been carried or carried unanimously or by a particular majority or defeated, and an entry to that effect in the book containing the minutes of the proceedings of the Association, 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.
23.3 In the case of an equality of votes, the chairperson of the meeting shall not be entitled to a second or casting vote.
23.4 The Board of any company or the controlling body of any other entity or person that is a Member may authorise any person to act as its representative at any meeting of Members of the Association, in which event the following provisions will apply –
23.4.1 the person so authorised may exercise the same powers of the authorising company, entity or person as it could have exercised if it were an individual Member; and
23.4.2 the authorising company, entity or person shall lodge a resolution of the Directors of such company or controlling body of such other entity or person confirming the granting of such authority, and certified under the hand of the chairperson or secretary thereof, with the Association before the commencement of any meeting of Members at which such person intends to exercise any rights of such Member, unless excused from doing so by the chairperson of such meeting.
24.1 Any Member may at any time appoint any natural person (or two or more natural persons concurrently), including a natural person who is not a Member, as a proxy to –
24.1.1 participate in, and speak and vote at, a meeting of Members on behalf of that Member; or
24.1.2 give or withhold written consent on behalf of that Member to a decision contemplated in section 60 of the Act.
24.2 A proxy appointment –
24.2.1 must be in writing, dated and signed by the Member; and
24.2.2 remains valid for –
24.2.2.1 1 (one) year after the date on which it was signed; or
24.2.2.2 any longer or shorter period expressly set out in the appointment,
unless it is revoked in a manner contemplated in the Act or expires earlier as contemplated in the Act.
24.3 The holder of a power of attorney or other written authority from a Member may, if so authorised thereby, represent such Member at any meeting of the Association and such holder shall deliver the power of attorney or other written authority (if any), or a copy thereof, to the Association before such holder exercises any rights of the Member at a meeting of Members.
24.4 All of the remaining provisions of the Act relating to the appointment and revocation of proxies and the rights of proxies generally shall apply and, in particular –
24.4.1 a Member has the right to appoint 2 (two) or more persons concurrently as proxies as set out in section 58(3)(a) of the Act;
24.4.2 a Member’s proxy may delegate the proxy’s powers to another person as set out in section 58(3)(b) of the Act;
24.4.3 a Member or his proxy must deliver to the Association a copy of the instrument appointing a proxy before the commencement of the meeting at which the proxy intends to exercise that Member’s rights ; and
24.4.4 unless the instrument appointing a proxy provides otherwise, a Member’s proxy may decide, without direction from the Member, whether to exercise or abstain from exercising any voting right of the Member, as set out in section 58(7) of the Act,
and none of such rights or powers are limited, restricted or varied by this Memorandum of Incorporation.
24.5 Every instrument of proxy shall, as far as circumstances permit, be substantially in the following form, or in such other form as the Directors may approve from time to time –
“I/We ____________________________________
being a Member of _____________________ NPC do hereby appoint
_______________________________________
or failing him/her
_______________________________________
or failing him/her, the chairperson of the meeting as my/our proxy to vote or abstain from voting on my/our behalf at the meeting of the Association to be held at on and at any adjournment thereof as follows:-
In favour of Against Abstain
Special Resolution 1 ………. ………. ………..
Ordinary Resolution 1 ………. ………. ………..

(Indicate instruction to proxy by way of a cross in space provided above). Except as instructed above or if no instructions are inserted above, my/our proxy may vote as he/she thinks fit.
SIGNED this day of in the year of .

MEMBER’S SIGNATURE
(Note — A Member entitled to attend, speak and vote is entitled to appoint a proxy to attend, speak and vote in his/her stead, and such proxy need not be a Member of the Association).”

25.1 For an ordinary resolution to be approved it must be supported by more than 50% (fifty percent) of the voting rights of Members exercised on the resolution, as provided in section 65(7) of the Act.
25.2 For a special resolution to be approved it must be supported by the holders of at least 75% (seventy five percent) of the voting rights exercised on the resolution, as provided in section 65(9) of the Act.
25.3 No matters, except those matters set out in section 65(11) of the Act (to the extent applicable to the Association) and any other matter required by the Act or by this Memorandum of Incorporation to be resolved by means of a special resolution, require a special resolution adopted at a meeting of Members of the Association.
25.4 In the event that any Member abstains from voting in respect of any resolution, such Member will, for the purposes of determining the number of votes exercised in respect of that resolution, be deemed not to have exercised a vote in respect thereof.
26.1 In accordance with the provisions of section 60 of the Act, a resolution that could be voted on at a meeting of Members (including in respect of the election of Directors) may instead be –
26.1.1 submitted by the Board for consideration to the Members entitled to exercise the voting rights in relation to the resolution; and
26.1.2 voted on in writing by such Members within a period of 20 (twenty) business days after the resolution was submitted to them.
26.2 A resolution contemplated in clause 26.1 –
26.2.1 will have been adopted if it is supported by persons entitled to exercise sufficient voting rights for it to have been adopted as an ordinary or special resolution, as the case may be, at a properly constituted meeting of Members; and
26.2.2 if adopted, will have the same effect as if it had been approved by voting at a meeting.
26.3 Within 10 (ten) business days after adopting a resolution, or conducting an election of Directors in terms of the provisions of this clause 26, the Association shall deliver a statement describing the results of the vote, consent process, or election to every Member who was entitled to vote on or consent to
27.1 In addition to the minimum number of Directors, if any, that the Association must have to satisfy any requirement in terms of the Act to appoint an audit committee, or a social and ethics committee or to satisfy any requirement in terms of this Memorandum of Incorporation for any other committees, the Board must comprise at least 6 (six) Directors of which –
27.1.1 the Residential Owners shall be entitled to appoint 2 (two) Directors, provided that only Residential Owners shall be entitled to vote in respect of the appointment of such Directors;
27.1.2 the Founding Member shall be entitled to appoint 1 (one) Director;
27.1.3 the Golf Course Owner shall be entitled to appoint 1 (one) Director;
27.1.4 the Hotel Owner shall be entitled to appoint 1 (one) Director; and
27.1.5 the Manager shall be an ex officio Director as contemplated in section 66(4) of the Act.
27.2 Any person or group of persons appointing a Director in terms of clause 27.1 shall be entitled to remove that Director and to replace the Director so removed with another Director.
27.3 A vacancy in the number of Directors shall only arise in the event of –
27.3.1 any Director ceasing to hold office or become disqualified from holding office as such for any reason; and/or
27.3.2 the Directors resolving to increase the number of Directors; and/or
27.3.3 any of the other circumstances contemplated in section 70(1) of the Act arising.
27.4 In the event that the number of Directors should, for any reason, fall below 6 (six), the remaining Directors shall, pending the appointment or election of another Director/s, continue to have the power to exercise all of the powers and perform any of the functions of the Association, as set out in section 66(1), and the powers of the Board in this regard are not limited or restricted by this Memorandum of Incorporation.
27.5 The Association shall only have the Directors contemplated in clause 27.1 and the further Directors appointed by the Board.
27.6 Unless the terms upon which any Director is appointed provide otherwise, each Director except the Manager shall hold office and serve for a 2 (two) year term and shall thereafter retire at the annual general meeting held during their 2nd (second) year of office.
27.7 Retiring Directors shall be eligible for re-election provided each Director appointed by Residential Owners may only hold office and service for a maximum of 2 (two) consecutive terms.
27.8 The directors may –
27.8.1 elect a chairperson and a deputy chairperson (to act in the absence of the Chairperson) of their meetings;
27.8.2 determine the period for which they are to hold office, which shall not exceed 1 (one) year.
28.1 In addition to satisfying the qualification and eligibility requirements set out in section 69 of the Act, a person need not satisfy any further eligibility requirements or qualifications to become or remain a Director or a prescribed officer of the Association.
28.2 The office of director, public officer or any board or audit committee member shall be vacated and no person may consent to hold any such office if the person –
28.2.1 is an unemancipated minor, or is under a similar legal disability; or
28.2.2 does not satisfy any qualification otherwise set out in this Memorandum of Incorporation.
28.3 The office of director, public officer or any board or audit committee member shall be vacated and no person may consent to hold any such office if the person –
28.3.1 has been declared to be delinquent in terms of section 162 of the Act or a court has prohibited that person from holding office;
28.3.2 is an unrehabilitated insolvent;
28.3.3 is prohibited in terms of any public regulation to be a director of the Company;
28.3.4 has been removed from an office of trust, on the grounds of misconduct involving dishonesty;
28.3.5 has been convicted, in the Republic or elsewhere, and imprisoned without the option of a fine, or fined more than the prescribed amount, for theft, fraud, forgery, perjury or an offence –
28.3.5.1 involving fraud, misrepresentation or dishonesty;
28.3.5.2 in connection with the promotion, formation or management of a company, or in connection with any act contemplated in Sections 69(2) or 69(5) of the Act;
28.3.5.3 under the Act, the Insolvency Act 24 of 1936, the Close Corporations Act 1984, the Competition Act, the Financial Intelligence Centre Act, 38 of 2001, the Securities Services Act 36 of 2004 or Chapter 2 of the Prevention and Combating of Corruption Activities Act 12 of 2004;
28.3.6 is directly or indirectly interested in any contract or proposed contract with the Company and fails to declare his interests and the nature thereof in the manner required by the Act;
28.3.7 if he is absent from meetings of the Board for 6 (six) consecutive months without leave of the Board otherwise than on the business for the Association.
28.4 Any disqualification referred to in clauses 28.3.4, 28.3.5 or 28.3.6 shall terminate at the later of –
28.4.1 5 (five) years after the date of removal from office, or the completion of the sentence imposed for the relevant offence, as the case may be;
28.4.2 at the end of one or more extensions, as determined by a court from time to time, on application by the Commission.
29.1 A director may hold any other office or place of profit under the Association (except that of auditor) or any subsidiary of the Association in conjunction with his office of director, for such period and on such terms as to remuneration (in addition to the remuneration which he may be entitled as a Director) and otherwise a disinterested quorum of the Board may determine.
29.2 A Director may be or become a director or other officer of, or otherwise interested in, any company promoted by the Association or in which the Association may be interested as a shareholder or otherwise (except in so far as otherwise decided by the Board) and he shall not be accountable for any remuneration or any benefits received by him as a director or officer of and from his interest in such other company.
29.3 Any director may act by himself or through his firm in a professional capacity for the Association (otherwise than as the auditor) and he or his firm shall be entitled to remuneration for professional services as if he were not a director.
29.4 Each Director and each alternate Director, prescribed officer and member of any committee of the Board (whether or not such latter persons are also members of the Board) shall, subject to the exemptions contained in section 75(2) of the Act and the qualifications contained in section 75(3) of the Act, comply with all of the provisions of section 75 of the Act in the event that they (or any person who is a related person to them) has a personal financial interest in any matter to be considered by the Board.
30.1 Each Director shall be entitled to appoint any member of the Association as an alternate director, to act in his place during his absence or inability to act as such, provided that the appointment of any alternate Director shall require the approval of the Board. Upon such appointment being made, the alternate Director shall, in all respects, be subject to the terms, qualifications and conditions existing with reference to the other Directors of the Association.
30.2 Any alternate Director, whilst acting in the stead of the Director who appointed him, shall exercise and discharge all the powers, duties and functions of the Director he represents.
30.3 The appointment of an alternate Director shall be revoked, and the alternate Director shall cease to hold office, whenever –
30.3.1 the Director who appointed him ceases to be a Director;
30.3.2 such appointing Director or the alternate Director himself gives notice to the secretary of the Association that such alternate Director has ceased to represent the Director concerned; and/or
30.3.3 such alternate Director becomes ineligible or disqualified from serving as a Director in terms of the provisions of the Act.
30.4 A person may be appointed as alternate Director to more than 1 (one) Director.
30.5 Where a person is an alternate Director to more than 1 (one) Director, or where an alternate Director is also a Director in his personal capacity, he shall have a separate vote on behalf of each Director whom he represents in addition to his own vote as a Director.
31.1 The Directors shall be entitled to such remuneration as the Association in general meeting may from time to time determine, which remuneration shall be divided among the Directors in such proportions as they may agree, or in default of such agreement, equally, except that in such event any Director holding office for less than a year shall only rank in such division in proportion to the period during which he has actually held office.
31.2 Such remuneration shall accrue to the Directors from day to day.
31.3 Any Director who -
31.3.1 serves on any executive or other committee; or
31.3.2 devotes special attention to the business of the Association; or
31.3.3 otherwise performs or binds himself to perform services which, in the opinion of the Directors, are outside the scope of the ordinary duties of a Director,
may be paid such extra remuneration or allowances in addition to or in substitution of the remuneration to which he may be entitled as a Director, as a disinterested quorum of the Directors may from time to time determine.
31.4 The Directors shall also be paid all their travelling and other expenses necessarily expended by them in connection with -
31.4.1 the business of the Association; and
31.4.2 attending meetings of the Directors or of committees of the Directors of the Association.
31.5 As contemplated in item 5(3) in Schedule 1 to the Act, the Association may not provide a loan to, secure a debt or obligation of, or otherwise provide direct or indirect financial assistance to, a Director of the Association or of a related or inter-related company, or to a person related to any such Director.
31.6 Notwithstanding the provisions of clause 31.1, a transaction shall not be prohibited if it –
31.6.1 is in the ordinary course of the Association’s business and for fair value;
31.6.2 constitutes an accountable advance to meet –
31.6.2.1 legal expenses in relation to a matter concerning the Association; or
31.6.2.2 anticipated expenses to be incurred by the person on behalf of the Association; or
31.6.3 is to defray the person’s expenses for removal at the Association’s request; or
31.6.4 is in terms of an employee benefit scheme generally available to all employees or a specific class of employees.
32.1 The management and control of the Association shall vest in the Directors who in addition to the powers conferred upon them in this Memorandum of Incorporation, may exercise all powers and authorities and perform all acts which may be exercised or done by the Association and are not hereby or by the Act expressly reserved to the members.
32.2 Such management and control may not be inconsistent with this Memorandum of Incorporation nor the provisions of the Act.
32.3 The general powers given in this clause shall not be limited or restricted by any special authority or power given to the Directors elsewhere in this Memorandum of Incorporation.
32.4 The Directors may at any time and from time to time by power of attorney appoint any person or persons to be the attorney or attorneys and agent(s) of the Association for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors in terms of this Memorandum of Incorporation) and for such period and subject to such conditions as the Directors may from time to time think fit. Any such appointment may, if the Directors think fit, be made in favour of any company, Directors, nominees or managers of any company or firm, or otherwise in favour of any fluctuating body of persons, whether nominated directly or indirectly by the Directors.
32.5 Any such power of attorney may contain such provisions for the protection or convenience of persons dealing with such attorneys and agents as the Directors think fit. Any such attorneys or agents as aforesaid may be authorised by the Directors to sub-delegate all or any of the powers, authorities and discretions for the time being vested in them.
32.6 The Directors may also authorize any such agent to sub-delegate any of his powers, authorities and discretions.
32.7 The Directors may delegate any of their powers to an executive or other committee, whether consisting of a member or members of their body or not as they think fit.
32.8 Save as otherwise expressly provided herein, all cheques, promissory notes, bills of exchange and other negotiable or transferable instruments, and all documents to be executed by the Association, shall be signed, drawn, accepted, endorsed or executed, as the case may be, in such manner as the Directors shall from time to time determine.
32.9 All acts performed by the Directors or by a committee of Directors or by any person acting as a Director or a Member of a committee shall, notwithstanding that it shall afterwards be discovered that there was some defect in the appointment of the Directors or persons acting as aforesaid, or that any of them were disqualified from or had vacated office, be as valid as if every such person had been duly appointed and was qualified and had continued to be a Director or Member of such committee.
32.10 A Director may hold any other office or place of profit under the Association (except that of auditor) or any subsidiary of the Association in conjunction with the office of Director, for such period and on such terms as to remuneration and otherwise as a disinterested quorum of the Directors may determine.
32.11 A Director of the Association may be or become a Director or other officer of, or otherwise interested in, any company or other juristic person promoted by the Association or in which the Association may be interested as shareholder or otherwise and (except insofar as otherwise decided by the Directors) he shall not be accountable for any remuneration or other benefits received by him as a Director or officer of or from his interest in such other company or juristic person.
The Directors may from time to time by unanimous resolution of the Board borrow for the purpose of the Association such sums as they see fit.
34.1 The directors shall cause minutes to be made of –
34.1.1 all the appointments of officers made by the Directors;
34.1.2 all proceedings at all meetings of the Directors and any of its committees and such minutes shall include every resolution adopted and any declaration (whether given in writing or at the meeting) by a director regarding personal financial interests, as contemplated in section 75 of the Act;
34.1.3 of the names of Directors or persons present at every meeting of the Board or any committee;
34.1.4 all resolutions and proceedings at each meeting of the Association;
34.1.5 all resolutions and proceedings at each meeting of the Directors.
34.2 Resolutions adopted by the Board –
34.2.1 must be dated and sequentially numbered; and
34.2.2 are effective as of the date of the resolution, unless any resolution states otherwise.
34.3 Minutes of any resolutions and proceedings mentioned in clause 34.1 appearing in one of the minute books of the Association, shall be proof of the facts stated if signed by –
34.3.1 any person purporting to be the chairman of the meeting to which it relates; or
34.3.2 any person present at the meeting and appointed by the Directors to sign in the chairman’s place; or
34.3.3 the chairman of a subsequent meeting of the Directors.
34.4 Any extract from or copy of those minutes signed by –
34.4.1 the chairman of that meeting;
34.4.2 any Director; or
34.4.3 the Secretary,
shall be prima face proof of the facts therein stated.
34.5 The Company shall maintain a record of the Directors, which shall include –
34.5.1 in respect of current Directors, -
34.5.1.1 the full name, and any former name;
34.5.1.2 identity number or the person’s date of birth;
34.5.1.3 nationality and passport number if the person is not a South African;
34.5.1.4 occupation;
34.5.1.5 date of their most recent election or appointment as Director;
34.5.1.6 name and registration number of every other company or foreign company of which the person is a director, and in the case of a foreign company, the nationality of that company; and
34.5.1.7 the address for service of every Director.
34.6 A person has a right to inspect the register of Directors of the Company upon payment of the prescribed maximum fee for any such inspection.
35.1 Save as may be provided otherwise herein, the Directors may meet together for the despatch of business, adjourn and otherwise regulate their meetings as they think fit.
35.2 The Directors shall determine the number of days’ notice to be given for directors meetings, and the form of that notice.
35.3 In addition to the provisions of section 73(1), the Chairperson and the Secretary, upon the request of a Director, shall at any time be entitled to call a meeting of the Directors.
35.4 A director who is not in South Africa shall not be entitled to notice of any meeting.
35.5 The Directors may –
35.5.1 elect a chairperson and a deputy chairperson (to act in the absence of the chairperson) of their meetings; and
35.5.2 determine the period for which each is to hold office.
35.6 The chairperson, or in his absence the deputy chairperson, shall be entitled to preside over all meetings of Directors. If no chairperson or deputy chairperson is elected, or if at any meeting neither is present or willing to act as chairperson thereof within 5 (five) minutes of the time appointed for holding the meeting, the Directors present shall choose 1 (one) of their number to be chairperson of such meeting.
35.7 The quorum requirement for a Directors’ meeting (including an adjourned meeting), the voting rights at such a meeting, and the requirements for approval of a resolution at such a meeting are as set out in section 73(5) of the Act, subject only to clause 35.7.5, and accordingly –
35.7.1 if all of the Directors of the Association –
35.7.1.1 acknowledge actual receipt of the notice convening a meeting; or
35.7.1.2 are present at a meeting; or
35.7.1.3 waive notice of a meeting,
the meeting may proceed even if the Association failed to give the required notice of that meeting or there was a defect in the giving of the notice;
35.7.2 3 (three) Directors must be present at a meeting before a vote may be called at any meeting of the Directors, provided that at least 1 (one) Director appointed by the Founding Member or the Golf Course Owner or the Hotel Owner is present at such meeting;
35.7.3 each Director has 1 (one) vote on a matter before the Board;
35.7.4 a majority of the votes cast on a resolution is sufficient to approve that resolution, provided that no resolution shall be passed unless at least 1 (one) Director appointed by the Founding Member shall have voted in favour thereof;
35.7.5 in the case of an equality of votes –
35.7.5.1 the chairperson shall not have a second or deciding vote; or
35.7.5.2 the matter being voted on shall be dealt with in accordance with clause 45.
35.8 The Board has the power to consider any matter and/or adopt any resolution other than at a meeting as set out in section 74 of the Act and, accordingly, any decision that could be voted on at a meeting of the Board may instead be adopted by the written consent of a majority of the Directors, given in person or by Electronic Communication, provided that each Director has received notice of the matter to be decided.
35.9 Written resolutions –
35.9.1 may consist of one or more documents so signed;
35.9.2 shall be delivered to the Secretary without delay, and shall be recorded by the Secretary in the Association’s minute book.
35.10 A written resolution shall be deemed to have been passed on the day it was signed by the last director or alternate director who is entitled to sign it.
35.11 The Board has the power to conduct a meeting entirely by Electronic Communication, or to provide for participation in a meeting by Electronic Communication, as set out in section 73(3) of the Act, provided that, as required by such section, the Electronic Communication facility employed ordinarily enables all persons participating in the meeting to communicate concurrently with each other without an intermediary and to participate reasonably effectively in the meeting;
35.12 The Board has the power to determine the manner and form of providing notice of its meetings as set out in section 73(4) of the Act.
35.13 The Board has the power to proceed with a meeting despite a failure or defect in giving notice of the meeting, as set out in section 73(5) of the Act.
35.14 The powers of the Board in respect of the above matters are not limited or restricted by this Memorandum of Incorporation.
35.15 The meetings and proceedings of any committee consisting of 2 (two) or more Directors shall be governed by the provisions of this clause 35 in regard to the meetings and proceedings of the committees insofar as the same are applicable thereto and are not superseded by any regulations made by the Directors.
35.16 All acts performed by the Directors or any committee of Directors or by any person acting as a Director or a member of a committee shall, notwithstanding that it shall afterwards be discovered that there was some defect in the appointment of the Directors or persons as aforesaid, or that any of them had disqualified from or had vacated office be as valid as if every such person had been duly appointed and was qualified and had continued to be a Director or member of such committee.
35.17 No resolution of Directors shall be passed unless a Director appointed by the Founding Member or the Golf Course Owner or the Hotel Owner has voted in favour thereof.
36.1 If the Directors so decide, they shall appoint a Secretary –
36.1.1 for such term;
36.1.2 at such remuneration; and
36.1.3 upon such conditions,
as they may think fit, and the Directors may dismiss such Secretary.
37.1 The Board may –
37.1.1 appoint committees of Directors and delegate to any such committee any of the authority of the Board as set out in section 72(1) of the Act; and/or
37.1.2 include in any such committee persons who are not Directors, as set out in section 72(2)(a) of the Act,
and the power of the Board in this regard is not limited or restricted by this Memorandum of Incorporation.
37.2 The authority of a committee appointed by the Board as set out in section 72(2)(b) and (c) of the Act is not limited or restricted by this Memorandum of Incorporation.
As contemplated in item 2(1) of Schedule 1 to the Act, the Association may not —
38.1 amalgamate or merge with, or convert to, a profit company; or
38.2 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 Association.
39.1 Any Director or the Secretary or any person appointed by the Directors for the purpose shall have power to authenticate -
39.1.1 any resolutions passed by the Association or the Directors;
39.1.2 any books, records, documents and accounts relating to the business of the Association,
and to certify copies thereof or extracts therefrom as true copies or extracts.
39.2 Where any books, records, documents or accounts are elsewhere than at the office, the local manager or other officer of the Association or other person having the custody thereof shall be deemed to be a person duly appointed by the directors for the abovementioned purpose.
39.3 Subject to the provisions of the Act, a member shall not be entitled to demand that -
39.3.1 any book, document or record be shown to him;
39.3.2 any information concerning the Association’s affairs be disclosed to him,
if the Directors in their sole and absolute discretion (which may not be disputed) consider that it is not in the Association’s interest to show that book, document or record to the member, or to disclose that information to him.
40.1 Notwithstanding the provisions of clause 9 –
40.1.1 the Association shall keep all such accurate and complete accounting records, in English, as are necessary to enable the Association to satisfy its obligations in terms of –
40.1.1.1 the Act;
40.1.1.2 any other law with respect to the preparation of financial statements to which the Association may be subject;
40.1.1.3 the Regulations; and
40.1.1.4 this Memorandum of Incorporation; and
40.1.2 the Association shall each year prepare annual financial statements within 6 (six) months after the end of its financial year, or such shorter period as may be appropriate to provide the required notice of an annual general meeting in terms of section 61(7).
40.2 The Association shall in particular, in order to satisfy its obligations in Regulation 27(4), maintain a register of revenue received from donations, grants or in terms of any other funding contracts or arrangements with any party, to the extent applicable.
40.3 The Association shall appoint an auditor upon, or as soon as reasonably possible after, its incorporation and each year at its annual general meeting. If the Association appoints a firm as its auditor, any change in the composition of the Members of that firm shall not by itself create a vacancy in the office of auditor.
40.4 For purposes of the affairs of the Association, with regard to and/or relating to the auditor of the Association, the provisions of sections 90(1), 90(1A), 90(2)(a) and (b), 90(3), 90(5), 90(6)(a)(i) to (iii), 90(6)(b) and (c), 91(1), 91(2), and 93(1) of the Act are incorporated, mutatis mutandis, into this Memorandum of Incorporation.
40.5 In the event that the annual financial statements of the Association –
40.5.1 are required to be audited pursuant to regulations made in terms of section 30(7), as contemplated in section 30(2)(b)(i), or as otherwise contemplated in the Act, the annual financial statements shall be so audited in accordance with the relevant provisions of the Act; and
40.5.2 are required to be audited, independently reviewed, or otherwise assessed in terms of any statute other than the Act, or a regulatory order, the Association shall comply with its relevant obligations in that regard.
40.6 Subject to clause 40.5, and notwithstanding any contrary provision in the Act, the annual financial statements shall be audited as set out in clause 40.7.
40.7 In the event that the annual financial statements are to be audited pursuant to the provisions of clause 40.6, the annual financial statements shall be prepared on a basis that is not inconsistent with any unalterable or non-elective provision of the Act and shall –
40.7.1 satisfy, as to form and content, the financial reporting standards of IFRS; and
40.7.2 subject to and in accordance with IFRS –
40.7.2.1 present fairly the state of affairs and business of the Association and explain the transactions and financial position of the business of the Association;
40.7.2.2 show the Association’s assets and liabilities, as well as its income and expenses;
40.7.2.3 set out the date on which the statements were produced and the accounting period to which they apply; and
40.7.2.4 bear on the first page thereof a prominent notice indicating that the annual financial statements have been audited and the name and professional designation of the person who prepared them.
41.1 Each Member is entitled to inspect and copy, upon payment of the prescribed maximum charge for any such copy, the information contained in the records of the Association referred to in section 26(1), being –
41.1.1 this Memorandum of Incorporation, and any amendments or alterations thereof, and any Rules of the Association;
41.1.2 a record of the Directors, including the details of any person who has served as a Director, for a period of 7 (seven) years after that person has ceased to serve as a Director, and any information relating to such persons referred to in section 24(5);
41.1.3 all –
41.1.3.1 reports presented at an annual general meeting of the Association for a period of 7 (seven) years after the date of any such meeting, provided that no such inspection right shall exist if and to the extent that the Association is not required to, and does not, in fact, hold an annual general meeting; and
41.1.3.2 annual financial statements required by the Act for a period of 7 (seven) years after the date on which each such particular statements were issued;
41.1.4 notice and minutes of all meeting of Members, including –
41.1.4.1 all resolutions adopted by them, for 7 (seven) years after the date each such resolution was adopted; and
41.1.4.2 any document that was made available by the Association to Members in relation to each such resolution;
41.1.5 any written communications sent generally by the Association to all Members (or all Members of any class of Members, if any), for a period of 7 (seven) years after the date on which each of such communications was issued; and
41.1.6 the Members’ register of the Association.
41.2 A person not contemplated in clause 41.1 has a right to inspect the Members’ register and the register of Directors of the Association upon payment of the prescribed maximum fee for any such inspection.
Auditors shall be appointed and their duties regulated in accordance with the provisions of the Act.
43.1 The Association may give notices, documents, records or statements or notices of availability of the aforegoing by personal delivery to Members or by sending them prepaid through the post or by transmitting them by email, telegram, telex or fax.
43.2 Any Member described in the register of members by an address not within South Africa, who shall from time to time furnish the Association with an address within South Africa at which notices can be delivered upon him, shall be entitled to have notices served upon him at such address. Save as set out in this Memorandum of Incorporation or the Act, no Member other than a registered member whose address appears in the register of Members as in South Africa, shall be entitled to receive any notice from the Association.
43.3 Any notice, document, record or statement or notice of availability of the aforegoing sent by the Association shall be deemed to have been delivered on the date and time determined in accordance with Schedule “3″.
43.4 The Association shall not be bound to use any method of giving notice, documents, records or statements or notices of availability of the aforegoing, contemplated in the Regulations in respect of which provision is made for deemed delivery, but if the Association does use such a method, the notice, document, record or statement or notice of availability of the aforegoing shall be deemed to be delivered on the day determined in accordance with the Regulations. In any other case, when a given number of days’ notice or notice extending over any period is required to be given, the provisions of clause 1 shall also be applied.
43.5 Each Member of the Association –
43.5.1 shall notify in writing to the Association an address, which address shall be his registered address for the purposes of receiving written notices from the Association by post; and
43.5.2 may notify in writing to the Association an email address and/or facsimile number, which address shall be his address for the purposes of receiving notices by way of Electronic Communication.
43.6 Any Member whose address is an address not within South Africa, and who shall from time to time furnish the Association with an address within South Africa at which notices can be served upon him, shall be entitled to have notices served upon him at such address.
43.7 Any Member who/which has furnished an electronic address to the Association, by doing so:
43.7.1 authorises the Association to use electronic communication to give notices, documents, records or statements or notices of availability of the aforegoing to her/him/it; and
43.7.2 confirms that same can conveniently be printed by the Member within a reasonable time and at a reasonable cost.
43.8 Any notice required to be given by the Association to Members, and not expressly prohibiting the provisions of this clause from applying, shall be sufficiently given (subject to giving a notice of availability in accordance with clause 43.1 or 43.7), if given by posting it on the Association’s web site until at least the date when the event to which the notice refers occurs.
44.1 The Association may –
44.1.1 advance expenses to a Director or directly or indirectly indemnify a Director in respect of the defence of legal proceedings, as set out in section 78(4) of the Act;
44.1.2 indemnify a Director in respect of liability as set out in section 78(5) of the Act; and/or
44.1.3 purchase insurance to protect the Association or a Director as set out in section 78(7) of the Act,
and the power of the Association in this regard is not limited, restricted or extended by this Memorandum of Incorporation.
44.2 The provisions of clause 44.1 shall apply mutatis mutandis in respect of any former Director, prescribed officer or Member of any committee of the Board, including the audit committee, if any.
44.3 Every director, manager, secretary, auditor and officer of the Association shall be indemnified out of the funds of the Association against all liabilities incurred by him in that capacity;
44.4 Every such person shall be 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 for which any such person may become liable by reason of -
44.4.1 any contract entered into; or
44.4.2 any act done by him,
in his capacity as director, secretary, manager, auditor or officer of the Association or in any way in the discharge of his duties.
44.5 Subject to the provisions of the Act, no director, manager, secretary, auditor, officer or servant of the Association shall be liable for -
44.5.1 any act, receipt, neglect or fault of any other such officer or servant of the Association; or
44.5.2 joining in any receipt or other act; or
44.5.3 loss or expense suffered by the Association through the insufficiency or deficiency of title to any subdivision acquired by order of the directors for and on behalf of the Association; or
44.5.4 the insufficiency or deficiency of any security in or upon which any of the monies of the Association have been invested; or
44.5.5 any loss or damage arising from the insolvency or delict of any person with whom any monies, securities or effects have been deposited; or
44.5.6 any loss or damage occasioned by any error of judgment or oversight on his part; or
44.5.7 any other loss, damage or misfortune whatever which shall happen in the execution of his duties of office or in relation thereto,
unless the same occurs through his own dishonesty.
45.1 If the necessary quorum and/or majority for the passing of any resolution of directors cannot be obtained the matter forming the subject matter of the proposed resolution shall be referred to the members for resolution.
45.2 If the necessary quorum and/or majority for the passing of any resolution of members cannot be obtained a dispute shall be deemed to exist which dispute shall be determined by an expert in terms of this clause 45.
45.3 The expert shall be, if the matter in dispute is principally -
45.3.1 a legal matter, a practising advocate or attorney of Cape Town of at least 15 (fifteen) years standing; or
45.3.2 an accounting matter, a practising chartered accountant of Cape Town of at least 15 (fifteen) years standing; or
45.3.3 any other matter, an independent and suitably qualified person.
agreed upon between the parties to the dispute.
45.4 Should the parties to the dispute fail to agree on an expert within 14 (fourteen) days after the dispute has arisen, the expert shall be appointed at the request of any party to the dispute by the president for the time being of the Cape Law Society (or such other body as may then govern the attorneys profession in the Western Cape Province) according to the guidelines set out in clause 45.2.
45.5 The expert shall be entitled to determine how, when and by whom submissions are to be made to him.
45.6 The expert shall act as an expert and not as an adjudicator or arbitrator.
45.7 Any determination of the expert shall be deemed (insofar as necessary) to be a resolution of the members and to be agreed between the parties to the dispute.
45.8 The expert shall be entitled to make an award for payment of costs.
46.1 This Memorandum of Incorporation may, subject to clause 3.2, only be altered or amended in the manner set out in sections 16, 17 or 152(6)(b) of the Act.
46.2 As contemplated in section 17 of the Act, the Board, or any individual authorised by the Board, may alter this Memorandum of Incorporation in any manner necessary to correct a patent error in spelling, punctuation, reference, grammar or similar defect on the face of the document by –
46.2.1 publishing a notice of any alteration made by delivering a copy of such amendments to each Member by ordinary mail; and
46.2.2 filing a notice of the alteration.
46.3 An amendment of this Memorandum of Incorporation will take effect from the later of –
46.3.1 the date on, and time at, which the Companies and Intellectual Property Commission established by section 185 of the Act accepts the filing of the notice of amendment contemplated in section 16(7) of the Act; or
46.3.2 the date, if any, set out in the said notice of amendment.
47.1 The Board is authorised to make, amend or repeal any necessary or incidental rules relating to the governance of the Association in respect of matters that are not addressed in the Act or in this Memorandum of Incorporation by –
47.1.1 publishing a copy of any Rules or amendments to such Rules made in terms of section 15(3) to 15(5) of the Act by delivering a copy of such Rules or amendments to each Member by ordinary mail; and
47.1.2 filing a copy of those Rules.
47.2 Any Rules so made shall take effect and become binding in the manner contemplated in section 15(4) of the Act.
47.3 The Board, or any individual authorised by the Board, may alter the Rules, in any manner necessary to correct a patent error in spelling, punctuation, reference, grammar or similar defect on the face of the document by –
47.3.1 publishing a notice of any alteration made by delivering a copy of such amendments to each Member by ordinary mail; and
47.3.2 filing a notice of the alteration.