MEMORANDUM
1. NAME
2. PURPOSE DESCRIBING MAIN BUSINESS
The main business which the Company is to carry on is maintenance of the internal roads, common property, landscaping and security.
3. MAIN OBJECT
The main object of the Company is to provide maintenance of the internal roads, common property, landscaping and security.
4. ANCILLARY OBJECTS EXCLUDED
None of the specific ancillary objects referred to in Section 33 (1) of the Act are excluded from the unlimited ancillary objects of the Company.
5. POWERS
5.1 The specific powers or part of any powers of the Company, if any, which are excluded for the plenary powers or the powers set out in /schedule 2 to the Act:
The Company shall not be entitled to distribute in specie or in kind any of its assets among its members, accordingly power (s) is excluded.
5.2 The specific powers or part of any specific powers of the Company set out in Schedule 2 to the Act which are qualified under Section 34 of the Act are:
5.2.1 power (b) which is amended by the addition of the words “provided the leasing of the premises is not the major business of the Company” after the words” … or all or any part of its property and assets”.
5.2.2 Power (f) which is amended to read as follows: “ To lend money to any person or company provided it is to the direct benefit and promotion of the main object of the Company and provided that interest on the loan is not less than the prevailing rate of interest”.
5.2.3 power (k) to be modified to read follows: “To form and have an interest in any company or companies having the same or similar objects to the company for the purpose of acquiring the undertaking or all or any of the assets or liabilities of that company or companies or for any other purpose which may seem, directly or indirectly, calculated to benefit the company, and to transfer to any such company or companies the undertaking of all or any assets or liabilities of the company”.
5.2.4 power (l) to be modifies to read as follows: “To amalgamate with other companies having the same or similar objects as the Company”.
5.2.5 power (m) to be modified to read as follows: “To take part in the management, supervision and control of the business or operations of any other company or business having the same or similar objects as the company and to enter into partnerships having the same or similar objects as the Company”.
5.2.6 power (n) to be modified to read as follows: “To remunerate any person or persons in cash for services rendered in its formation or in the development of its activities”.
5.2.7 power (o) to read as follows: “To make donations provided that no donation may be made to members or directors”.
5.2.8 power (r) to read as follows: “To pay gratuities and pensions and establish pension schemes and incentive schemes in respect of its bona fide employees”.
6. CONDITIONS
6.1 The income and property of the Company whencesoever derived shall be applied solely towards the promotion of its main object, and no portion thereof shall be paid or transferred, directly or indirectly by way of dividend, bonus or otherwise howsoever, to the members of the Company or to its holding company or subsidiary: Provided that nothing herein contained shall prevent the payment in good faith of reasonable remuneration to any officer or servant of the Company or to any member thereof in return for any services actually rendered to the Company.
6.2 Upon its winding-up, deregistration or dissolution, the assets of the Company remaining after the satisfaction of all its liabilities shall be given or transferred to some other association or institutions having objects similar to its main object, to be determined by the members of the Company at or before the time of its dissolution or failing such determination, by the Court.
7. PRE-INCORPORATION CONTRACTS
None
8. GUARANTEE
8.1 The liability of members is limited to the amount referred to in paragraph 8.2
8.2 Each member undertakes to contribute to the assets of the Company in the event of its being wound up while he is a member or within one year afterwards, for payment of the debts and liabilities of the company contracted before he ceases to be a member, and of the costs charges and expenses of the winding-up, and for adjustment of the rights of the contributories among themselves, which liability shall be limited to R1-00 (ONE RAND) each member.
9. FINANCIAL YEAR END
Last day of February
ASSOCIATION CLAUSE
We, the several person whose full names, occupations, residential, business and postal addresses are subscribed, are desirous of being formed into a company in pursuance of this Memorandum of Association, and we respectively agree to become members of the Company.
ARTICLES
1. PRELIMINARY
1.1 The Articles of Table A contained in Schedule 1 to the Companies Act, 1973 shall not apply to the Company.
1.2 The Articles of the Company are as follows.
2. DEFINITIONS
2.1 In these presents the following words shall, unless the context other requires, have meanings hereinafter assigned to them.
"Authorised representative" means a person duly authorized by a company or other body corporate;
"Act" means the Companies Act No 61 of 1973 (as amended);
"Articles" means the Articles of Association of the Company;
"Auditors" means the Auditors of the Company;
“Developer” means the owner and seller of property before any individual transfers were effected;
"Company"means Crescent Wood Home Owners Association (Association incorporated under Section 21);
"Chairman" means the Chairman of the Board of Directors;
“Directors”, "Board of Directors" and “Board means the Directors for the time being of the Company
“Founder members” means the subscribers hereof;
"In Writing" means written, printed or lithographed or partly one or partly another, and other modes of representing producing words in a visible form;
“Land” means any property in the scheme held by Deed of Title duly registered by the Registrar of Deeds;
“Managing Agents" means any person or body appointed by the Company to undertake as an independent contractor to undertake any of the functions of the Company;
“Member” means a member of the Company;
"Memorandum " means the Memorandum of Association;
"Scheme" means the housing Scheme generally known and referred to as: Crescent Wood;
"Vice-Chairman" means the Vice-Chairman of the Board of Directors;
“Owner” means the registered owner of land; and the registered owner of any sectional title unit in a sectional title complex within the boundaries of the scheme; and whenever reference is made to an owner it will include the registered owner of a sectional title unit.
2.2 Unless the context otherwise requires, any words importing the singular number shall also include the plural number, and vice versa and words importing the any one gender shall include the other two genders;
2.3 Subject as aforesaid, any words or expressions defined in the Act or in any statutory modifications of such Act in force at the date on which these presents become binding on the Company shall, if not inconsistent with the subject or context, bear the same meaning in these presents.
3. MEMBERSHIP
3.1 Membership of the Company shall be limited to:
3.1.1 the founder members; and
3.1.2 the developer in his capacity as such, as well as his authorised nominees; and
3.1.3 any other person who is reflected, in terms of the Deeds Registries Act in the records of the Deeds Office concerned, as the registered owner of any land in the scheme and who requests, in writing, to become a member of the Company and to be bound by the Memorandum and Articles of Association thereof.
3.2 The subscribers to these Articles of Association shall be the founder members of the Company.
3.3 Where any land in the scheme is owned by more than one person, all the registered owners of that land shall together be deemed to be one member of the Company and have the rights and obligations of one Member of the Company, provided however that all co-owners of any land shall be jointly and severally liable for due performance of any obligation to the Company.
3.4 When a person is or becomes the registered owner of land in the scheme he shall ipso facto become a member of the Company, and he ceases to be the owner of any such land in the scheme, he shall ipso facto cease to be a Member of the Company.
4. RIGHTS AND OBLIGATIONS OF MEMBERS
4.1 No Member shall let or otherwise part with occupation of his land, whether temporarily or otherwise unless he has agreed in writing with the proposed occupier of such land as a stipulatio alteri in favour of the Company that such occupier shall be bound by all the terms and conditions of this presents, and such written agreement is lodged with the Company prior to the proposed occupier taking occupation of the land in question.
4.2 A member of the Company shall remain a member thereof until he ceases to be the owner of land in the scheme.
4.3 Every member shall:
4.3.1 further, to the best of his ability, the objects and interests of the Company;
4.3.2 observe all rules made by the Company or the Directors;
4.3.3 pay all levies due by the members of the Company; except for members referred to under Article 3.1.1 and 3.1.2;
4.3.3 if so required by the Company sign all documents required to create a condition in the title deed of his property which will ensure that the property may not be sold or transferred without the buyer or transferee binding himself to become a member of the Company and without a certificate as contemplated in 5.9. The condition referred to shall be worded as near as possible to the condition contained in Annexure 1.
4.4 Subject to the rights of membership prescribed by the Act and by these Articles, membership shall confer upon each member of the following rights:
4.4.1 subject to the provisions of Article 8 below, the right to nominate and elect the Directors of the Company;
4.4.2 the right to receive copies of the annual financial statements of the Company;
4.5.3 subject to the provisions of Article 18.4 below, the right to receive notice of, attend, speak and vote at general meetings of the Company.
4.5 Nothing contained in these Articles of Association shall prevent a member from ceding his rights in terms of these Articles as security to the mortgagee of that member’s land.
4.6 Every member shall, when he agrees to transfer ownership of an erf in the Scheme, set it as a condition of the agreement of sale and transfer of an erf in the Scheme in terms set out in Annexure 2 hereto, that the new owner shall, ipso facto on the registration of the transfer into his/her name, become a member of this Company, accepting his/her obligations towards the Company as Member;
4.7 No owner of an erf in the Scheme shall be entitled to dispose thereof to any other person without the written consent of the Company under the hand of its Secretary or his/her authorised agent, which consent will not be unreasonably withheld unless:
4.7.1 such owner is in arrear with any levies or payment due to the Company in terms of these Articles or otherwise;
4.7.2 the proposed transferee has not agreed to become a member of the Company;
4.7.3 such owner has, after notice by the Company, failed to comply with any of the conditions of the agreement of sale by virtue of which he acquired the erf in the Scheme or any provision of these Articles or any rules made thereunder.
4.8 No owner of an erf in the Scheme shall be entitled to pass transfer thereof to any other person until the Company under the hand of its Secretary or his/her authorised representative has certified that such owner as at date of transfer has complied with all his/her financial obligations towards the Company.
4.9 The provisions of 3.1.1 and 3.1.2 shall apply mutatis mutandis to any alienation of an undivided share in an erf in the Scheme.
4.10 The registered owner of an erf in the Scheme shall not resign as a Member of the Company.
4.11 The Developer, or a member who is a member of the company in his/her capacity as a representative of the Developer, will cease to be a member of the Company when the last stand is transferred by the Developer.
4.12 The Directors of the Company may impose an additional, reasonable fee upon the members of the Company for the issuing of the clearance certificate as referred to in Article 5.9. The said fee will be determined by the Directors from time to time and will be subject to ratification by the Company at its Annual General Meeting.
5. LEVIES
5.1 The Directors may from time to time determine the levies payable by the Members for the purpose of meeting all the expenses which the Company has incurred, or to which the Directors reasonably anticipate the Company will be put in the attainment of its objects or the pursuit of its business.
5.2 The Directors shall not less than (30) thirty days prior to the end of each Financial Year or so soon thereafter as is reasonably possible, prepare and serve upon every Member at the address chosen an estimate, in reasonable detail, of the amount which shall be required by the Company to meet the expenses during the following Financial Year, and shall specify separately such estimated deficiency, if any, as shall result from the preceding year. The Directors may include in such estimate an amount to be held in reserve to meet anticipated expenditure not on an annual nature.
5.3 Each notice to each Member shall specify the contribution (levy) payable by that Member to such expenses and reserve fund.
5.4 Every levy shall be payable in equal monthly instalments, due in advance on the first day of each month and every month of each Financial Year.
5.5 In the event of the Directors, for any reason whatsoever, fail to prepare and timeously serve the estimate referred to in Article 5.2 above, every Member shall until served with such estimate, continue to pay the levy previously imposed and shall after serving of such notice pay the levy specified therein.
5.6 The Directors may from time to time impose special levies upon the Members in respect of all expenses as are mentioned in Article 5.1 which are not included in any estimate made in terms of Article 5.2, and may in imposing such levies further determine the terms of payment thereof.
5.7 The Directors shall be empowered in addition to such other rights as the Company may have in law against its Members to determine the rate of interest from time to time chargeable upon arrear levies, provided that such rate of interest shall not exceed 2 percentage points above the prime rate.
5.8 The obligation of a Member to pay a levy and interest shall cease upon his ceasing to be a Member without prejudice to the Company's right to recover arrear levies and interest. No levies or interest paid by a Member shall under any circumstances be repayable by the Company upon his ceasing to be a Member. A Member's successor in title to land shall be liable as from the date upon which he becomes a Member pursuant to the transfer of that land, to pay the levy and interest attributable to that land.
5.9 No land of a Member shall be capable of being transferred without a Certificate first being obtained from the Company confirming that all levies and interest have been paid up and including date of registration of transfer thereof.
5.10 The developer shall not be obligated to pay any of the levies, fees or interest referred to in this Articles of Association.
6. RULES
6.1 Subject to any restriction imposed or direction given at a general meeting of the Company, the Directors may from time to time make rules applicable to its members which may include house rules in regard to;
6.1.1 the right to determine and control all security measures in the scheme and in respect of or across any roadway which vests in the Company;
6.1.2 the control and collection of refuse;
6.1.3 the movement of vehicles within the scheme;
6.1.4 regulation of the use of public spaces;
6.1.5 any such aspect pertaining to the scheme that the Company deems necessary.
6.1 6 the furtherance and promotion of any of the objects of the Company and/or for the better management of the affairs of the Company and/ or for the advancement of the interests of members and/ or residents in the scheme;
6.2 For the enforcement of any of the rules made by the Directors in terms hereof and for the payment of any debt due to the Company, the Directors may:
6.2.1 give notice to the member or resident concerned requiring him to remedy a breach thereof or make payment within such reasonable period as the Director may determine; and / or
6.2.2 take or cause to be taken such steps as they may consider necessary to remedy the breach of the rule of which the member or resident may be guilty or recover the debt, and debit the cost of so doing to the member or resident concerned, which amount shall then be deemed to be a debt owing by the member or resident concerned to the Company; and/or
6.2.3 impose a system of fines or other penalties. The amounts of such fines shall be reviewed and confirmed at each Annual General Meeting of the Company; and/or
6.2.4 take such other action, including proceedings in court, as they may deem fit.
6.3 In the event of the Directors instituting any legal proceedings against any member for the enforcement of any of the rights of the Company in terms hereof, the Company shall be entitled to recover, on demand all legal costs so incurred from the member or resident concerned, calculated, calculated as between attorney and own client.
6.4 In the event of any breach of the rules by the members of any member’s or resident’s household, or his guests, or leases, or any occupiers of a member’s land, such breach shall be deemed to have been committed by the member himself, but without prejudice to the a foregoing, 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.
6.5 In the event of any member disputing the fact that he has committed a breach of any of the rules, a committee of three Directors appointment by the chairman for the purpose shall adjudicate upon the issue at such time and in such manner and according to such procedure (provided that natural justice shall be observed) as the Chairman may direct.
6.6 Any fine imposed upon any member shall be deemed to be a debt by the member to the Company and shall be recoverable by ordinary civil process.
6.7 Notwithstanding anything to the contrary herein contained, the Directors may in the name of the Company enforce the provisions of any rules by civil application or action in a court of competent jurisdiction and for this purpose may appoint such attorneys and counsel as they may deem fit.
6.8 The Company may in general meetings itself make any rules which the Directors may make and may in general meetings vary or modify any rules made by it or by the Directors from time to time.
6.9 the Company reserves the right to allocate any payment received for outstanding levies and interest to any debt as it deems fit. In the absence of an expressed allocation, the payment will be allocated to the debt newest in time.
7. DIRECTORS
7.1 There shall be a Board of Directors of the Company which shall consist of not less than 2 (two) nor more than 7 (seven).
7.2 Until the Developer ceases to be a member of the company, the Developer will have the right to appoint at least one Director to the Board of Director.
7.3 Any other director to be appointed to office shall be elected by the members in a general meeting
7.4 A Director shall be an individual but need not himself be a member of the company. A Director however, by accepting his appointment to office as such, shall be deemed to have agreed to be bound by all the provisions of these presents.
8. REMOVAL AND ROTATION OF DIRECTORS
8.1 Save as set out in Article 8.3 each Director shall continue to hold office from the date of his appointment until the Annual General Meeting next following his appointment, at which meeting each Director shall be deemed to have retired from office but will be eligible for re-election to the Board of Directors at such meeting.
8.2 A Director shall be vacated in any of the events following, namely:
8.2.1 If he becomes insolvent or assigns his Estate for the benefit of his creditors, suspends payments generally, or compounds with his creditors or files petition for the surrender of his Estate
8.2.2 If he is found or becomes of unsound mind
8.2.3 If he is requested in writing by all his co- Directors to resign.
8.2.4 If he is removed by a resolution of the Company pursuant to Section 220 of the Act
8.2.5 If he shall, pursuant to the provisions of the Statutes or by reason of any order made thereunder, be prohibited from Acting as a director; if he resigns his office by notice in writing to the Company
8.2.6 If he is absent from meetings of the Directors for six consecutive months without leave of the Directors otherwise than on the business of the Company ad is not represented at any such meetings during such 6 consecutive months by an alternative Director, and the Directors shall resolve that his office be, by reason of such absence, vacated, provided that the Directors shall have power to grant to any director nor resident in the Republic leave of absence for any or an indefinite period
8.2.7 Upon the Member who he represented ceasing, for any reason to be owner of an erf and subsequently to be a Member of the Company.
8.3 A Director shall be deemed to have vacated his office upon:
8.3.1 his having become disqualified to act as a Director in terms of the provisions of the Act
8.3.2 his being removed from office as provided in Section 220 of the Act
8.3.3 In the event of his ceasing being a Member of the Company, his being disentitled to exercise a vote in terms of Article 18.4 below
8.4 Upon any vacancy occurring in the Board of Directors prior to the next Annual General Meeting, the vacancy in question shall be filled by a person nominated by those remaining for the time being of the Board of Directors
9. CHAIRMAN AND VICE-CHAIRMAN
9.1 The Directors shall within (14) fourteen days after each Annual General Meeting appoint from their number a Chairman and Vice-Chairman, who shall hold their said appointments, provided that the office of Chairman or Vice-Chairman shall ipso factor be vacated by a Director holding such office upon his ceasing to be a Director for any reason. No one Director shall be appointed to more than one of the aforesaid offices. In the event of any vacancy occurring in either of the aforesaid offices at any time, the Board of Directors shall immediately appoint one of their number as a replacement in such office.
9.2 Except as otherwise herein provided, the Chairman shall preside at all meetings of the Board of Directors and all General Meetings of Members and, in the event of his/her not being present within fifteen (15) minutes of the scheduled time for the start of the meeting or in the event of his inability or unwillingness to act, the Vice-Chairman shall Act in his stead, or failing the Vice-Chairman, a Chairman appointed by the meeting.
10. DIRECTORS’ EXPENSES
Directors shall be entitled to be repaid all reasonable and bona fide expenses incurred by them respectively in or about the performance of their duties as Directors. Save as aforesaid, Directors shall not be entitled to any remuneration for the performance of their duties in terms hereof.
11. POWERS OF DIRECTORS
11.1 Subject to the provisions hereof, the Directors shall manage and direct the affairs of the Company and shall have full powers in the management and direction of such business and affairs including the right of appointment and dismissal of the Managing Agent, may exercise all such powers of the Company and do all such Acts on behalf of the Company as may be exercised and done by the Company in terms of the Act or in terms of these presents or instructions by the Company in General Meetings, subject however to such Rules as may have been made by the Company in General Meeting or may be made by Directors from time to time.
11.2 Save as specifically provided herein, 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, a managing agent or any other professional firm or person or other employees whatsoever for any reasons deemed necessary by the directors and on such terms as the Directors shall decide.
11.3 The Directors shall further have the power to:
11.3.1 require that any works being constructed within the Scheme shall be supervised to ensure that the provisions of the Memorandum and Articles of Association of the Company and of the Rules are complied with and that all work is performed in a proper and workmanlike manner;
11.3.2 in conjunction with the local authority supervise the establishment of public spaces within the Scheme and co-ordinate the implementation of a security village within the Scheme.
11.3.3 liaise with interest groups;
11.3.4 ensure timeous and appropriate review of the levies payable by its Members.
11.4 The Board of Directors shall have the right to co-opt onto the Board any person or persons and who need not necessarily be a Member of the Company.
11.5 The Directors shall be authorised to appoint committees consisting of such number of their Members and such outsiders, including the Managing Agent, as they may deem fit and to delegate to such committees such of their functions, powers and duties as they may deem fit, together with the further power to vary or revoke such appointments and delegations as the Directors may from time to time deem necessary.
12. PROCEEDINGS OF DIRECTORS
12.1 The Directors may meet together to attend to their business, adjourn and otherwise regulate their meetings as they deem fit, subject to the provisions of these Articles.
12.2 The quorum for the holding of any meeting of the Directors shall be 3 (three) present personally. Subject to the provisions of Clause 18.10, any resolution passed by the Board of Directors shall be carried on a simple majority of all votes cast. Should there be an equality of votes for and against any resolution, the resolution shall be deemed to have been defeated.
12.3 The Directors shall cause the minutes of each meeting to be kept in accordance with Section 204 of the Act, which minutes shall be reduced to writing and certified as correct by the Chairman as soon as is reasonably possible after such meeting. All minutes of Directors meetings shall, after certification, placed in a Directors Minute Book, which shall be kept in accordance with the provisions of the law relating to keeping minutes of meetings of Directors of companies. The Directors' Minute Book shall be open for inspection at all reasonable times by any Director, the Auditors, the Members and the Managing Agents.
12.4 Subject to the provisions of these Articles, the proceedings of any Directors meeting shall be conducted in such reasonable manner and form as the Chairman of the meeting shall direct.
12.5 A resolution signed by all the Directions shall be valid in all respects as if it had been duly passed at a meeting of the Board of Directors.
13. GENERAL MEETINGS
13.1 The Company shall hold its Annual General Meeting within six (6) months after the end of each Financial Year of the Company.
13.2 Not more than fifteen (15) months may elapse between the date of one Annual General Meeting and the date of the next Annual General Meeting.
13.3 The Directors may, whenever they think fit, convene a general meeting and the Chairman shall convene a general meeting if a general meeting is requisitioned in terms of the Act. If at any time there are, within the Republic, insufficient number of Directors capable of Acting to form a quorum, any Director or Member of the Company may convene a general meeting in the same manner, as nearly as possible, as that in which meetings may be convened by the Directors.
13.4 Subject to the provisions of the Act, general meetings shall be held at such time and place as the Directors shall determine.
14. NOTICE OF GENERAL MEETINGS
14.1 Subject to the provisions of the Act and annual general meeting and a meeting called for the passing of a special resolution shall be called on not less than 21 (twenty one) days notice in writing and any other general meeting shall be called on not less than 14 (fourteen) days notice in writing. Notice in terms of this clause shall be exclusive of the date on which it is served or deemed to be served and exclusive of the date for which it is given.
14.2 The notice of a meeting of the Company, shall specify –
14.2.1 the place;
14.2.2 the date and the hour of the meeting; and
14.2.3 in the case of special business, the general nature of such business; and shall be given in the manner hereinafter provided or in such other manner as may be prescribed by the Company in general meeting and to such persons as are, under these Articles, entitled to receive such notices from the Company.
14.3 Notwithstanding the provisions of these Memorandum, but subject always to the Act-
14.3.1 a general meeting shall, notwithstanding that it is called by shorter notice than that specified in these Articles, be deemed to have been duly called if it so agreed by a majority in number of the Members having a right to attend and vote at the meeting, who hold not less than 75 % (seventy five percent) of the total Voting Rights of all the Members;
14.3.2 a general meeting shall be entitled to deal with special business, the general nature of which has not been notified, if it so agreed by a majority in number of the Members having a right to attend and vote at the meeting, who between them hold not less than 50% (fifty percent) of the total Voting Rights of the Members.
15. AGENDA
In addition to any other matters required by the Act or in terms of these Articles to be dealt with at an Annual General Meeting, the following matters shall be dealt with at every Annual General Meeting:
15.1 the consideration of the Chairman’s report;
15.2 the election of Directors;
15.3 the consideration of any other matters raised at the meeting, including any resolutions proposed for adaptation by such meeting and the voting upon any such resolutions;
15.4 the consideration of the accountants of the Company for the proceeding financial year;
15.5 the consideration of the report of the auditors and the fixing of remuneration for the auditors.
16. PROCEEDINGS AT MEETINGS
16.1 The Annual General Meeting shall deal with and dispose of all matters prescribed by the Act, including the consideration of the annual financial statements, the election of Directors and the appointment of an auditor and the fixing of the remuneration of the auditor, and may deal with any other business laid before it and of which notice has been duly given in terms of these Articles or in respect of which notice has been waived.
16.2 Where a company or other body corporate is a member of the Company it may, in the appropriate manner, nominate any person it deems fir to act as its authorized representative at any general meeting and such authorized representative shall be entitled to exercise the same rights and powers which that Company would have had at the meeting if it were a natural person or present in person or by proxy.
16.3 Business may be transacted at a general meeting only while a quorum of Members is present.
17. QUORUM
17.1 No business shall be transacted at any General Meeting unless a quorum is present when the meeting proceeds. The quorum necessary for the holding of a General Meeting shall be Twenty Percent (25 %) of the votes in number of all the Members of the Company entitled to vote for the time being, provided that at no stage shall a quorum be less than 3 (three) members present.
17.2 If within half an hour after the time appointed for the general meeting a quorum is not present, the general meeting, if convened upon requisition of the Members, shall be dissolved. In any other case the general meeting shall stand adjourned to the same day in the next week at the same time and place, or if that day is not a Business Day to the next succeeding Business Day, and if at such an adjourned general meeting a quorum is not present within half an hour after the time appointed for the meeting, the Members present in person or represented by proxy shall constitute a quorum.
17.3 The Chairman of the Board of Directors shall preside as Chairman at every general meeting of the Company.
17.4 If there is not such Chairman or if any general meeting he is not present within 15 minutes after the time appointed for the holding of the meeting or if he is unwilling to act as chairman the Vice Chairman shall act in his stead, or failing the Vice Chairman, a Chairman appointed by the meeting.
17.5 The Chairman of a general meeting at which a quorum is present may (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place but no business shall be transacted at any adjourned meeting other than business left unfinished at the meeting at which the adjournment took place. Subject to the act, when a meeting is adjourned it shall not be necessary to give notice thereof.
17.6 No resolution at a general meeting will require a seconder.
18. VOTING
18.1 Subject to Article 18.7, at every general meeting, every Member present in person or represented by proxy, shall have 1 (one) vote only.
18.2 If land or a portion of land in the scheme is registered in the name of more than one person, then all such co-owners shall jointly have those votes provided for in Article 18.1
18.3 Every Member holding land in the scheme shall have those votes provided for in Article 18.1 for each separate piece of land registered in his or her name.
18.4 Subject to the provisions of these Articles, no person other than a duly registered member of good standing, who has paid every levy and other sum if any, which is due and payable to the Company in respect of or arising out of his membership and who is not under suspension, shall be entitled to present or vote on any question, either personally or by proxy, at any general meeting. A member will be considered to be of good standing and entitled to vote, if every levy or other sum, if any, which is due and payable to the company, have been paid and notification of such payment was given by such a member no less than 48 hours before the meeting proceeds to business.
18.5 At any general meeting a resolution put to vote shall be decided on a poll.
18.6 In the case of an equality of votes, the Chairman of the meeting at which the voting takes place shall be entitled to a second or casting vote.
18.7 Any objection to the admissibility of a vote shall be raised at the general meeting at which that voting is to take place or takes place. The objection shall be determined by the Chairman of the general meeting and his decision thereon shall be final and binding. Accordingly, any vote not disallowed at that meeting shall be valid for all purposes.
18.8 A resolution shall not be invalid because a vote, which should not have been included, has been taken into account unless, in the opinion of the Chairman of the meeting, (whose decision thereon shall be final and binding), the exclusion of that vote would have altered the result of the voting on that resolution. Conversely a resolution shall not be invalid because a vote, which should have been included, has not been taken into account unless, in the opinion of the Chairman of that meeting (whose decision thereon shall be final and binding), the inclusion of that vote would have altered the result of the voting on that resolution.
18.9 Until the Developer ceases to be a member of the Company, the Developer or a member in his/her capacity as representative of the Developer, will have a veto vote with regard to any resolution put to vote at any general meeting or director’s meeting within 48 hours of receiving notice of such resolution.
19. RESOLUTION IN WRITING BY MEMBERS
Subject to the provisions of the Act, a resolution in writing signed by all the members entitled to receive notice and attend and vote at the general meeting and inserted in the minute book kept in terms of Article 20 shall be valid and effective as if it had been passed at a general meeting duly called and constituted. A resolution in terms of this Article may consist of several documents of the same form, each of which is signed by one or more members in terms of the same form, each of which is signed by one or more members in terms of the same Article, and shall be deemed to have been passed on the date of signature thereof by the last member entitled to sign the same.
20. MINUTES AND INSPECTION
20.1 The Directors shall cause a record to be made of all resolutions of the Company in general meeting in a book provided for that purpose.
20.2 The minutes kept in terms of Article 20.1 (or any extract there from) that purport to be signed by the Chairman of the Board of Directors or by any Director or the secretary shall be prima facie evidence of the matters therein stated.
20.3 The minute book shall be opened for inspection and may be copied as provided in the Act.
21. PROXIES
21.1 A Member entitled to vote at a general meeting shall be entitled to appoint one person or more than one person in the alternative to each other as his/her proxy/ies to attend, speak and vote at a general meeting on his behalf.
21.2 A proxy need not be a Member of the Company,
21.3 The instrument appointing a proxy shall be In Writing under the hand of the appointer or his agent duly authorized In Writing or, if the appointer is a body corporate under the hand of the authorized representative. A proxy need not be witnessed. Whether he is himself a Member or not, the holder of a general or special power of attorney given by a Member shall, if duly authorized under that power to attend and take part in meetings and proceedings of the Company or companies generally, be entitled to attend general meetings and to vote there at.
21.4 A form of proxy may be issued at the Company's expense only if it is sent to all Members who are entitled to attend and vote at the general meeting to which the proxy form relates.
21.5 The instrument appointing a proxy and the power of attorney or other authority, if any, under which it is signed, (or a notarial certified copy of such power or authority) shall be deposited at the office of the Company not less than forty-eight hours (or at such other place and such lesser period as the Directors may determine in relation to any particular meeting) before the time for the holding of the meeting which the person’s name in the instrument proposes to speak and vote. A form of power of attorney or proxy shall be invalid if this Clause is not complied with.
21.6 Except insofar as the form appointing a proxy indicates otherwise, the appointment of a proxy shall be deemed to include the right to demand or join in demanding a poll and (except to the extent to which the proxy is specially directed to vote for or against or to abstain from voting on any proposal or resolution), the power generally to Act for the Member giving that proxy at the general meeting in question as the proxy may think fit. Unless the contrary is stated thereon, the form appointing a proxy shall be valid for each adjournment of the general meeting to which it relates.
21.7 No instrument appointing a proxy shall be valid after the expiration of 6 (six) months from the date on which it were signed unless specifically stated to the contrary in the instrument of proxy itself.
21.8 The instrument appointing a proxy may be in any usual or common form approved by the Directors but shall be so worded that the holder thereof may vote for or against or abstain from voting on any one or more of the resolutions proposed at the general meeting at which the proxy is to be used.
22. ACCOUNTING RECORDS
22.1 The Directors shall cause to be kept such accounting records as are prescribed by the Act and in particular such accounting records as are necessary fairly to present the state of affairs and business of the Company and to explain the transactions and financial position of the trade or business of the Company.
22.2 The Company's records shall be kept at the office of the Company or such other place or places as the Directors think fit and shall at all reasonable times be open to inspection by the Directors and past Directors but, in the case of the latter, only in respect of the period during which they held office as Directors.
22.3 The directors shall from time to time determine whether, to what extend and at what times and places and under what conditions or regulations the accounting records of the company or any of them may be open for inspection by members not being directors and no member (not being a director) shall have any right to inspect any accounting record or document of the company except as conferred by the Act or authorized by the directors or by the company in general meeting.
23. AUDITED FINANCIAL STATEMENTS
23.1 The Directors shall from time to time in accordance with the provisions of the Act, cause the annual financial statements, group annual financial statements to be audited, prepared and laid before the Company in general meeting.
23.2 A copy of any annual financial statements which are to be laid before the Company at the Annual General Meeting shall not less than 21 (twenty-one) days before the date of that meeting, be sent to every Member and every holder of debentures of the Company and, where required by the Act, also to the Registrar. The provisions of the Article shall not require a copy of those documents to be sent to any person who has not furnished an address to the Company.
24. AUDIT
An auditor shall be appointed in accordance with the provisions of the Act.
25. NOTICES
25.1 A notice may be given by the Company to any Member either personally or by sending it by prepaid post to such Member at the address if any within the Republic furnished by him to the Company for such purpose.
25.2 Notice of every general meeting shall be in writing and shall be served by delivery or sending it through the post-
25.2.1 to every member except those persons who have not supplied an address to the Company for the purpose of giving notice to them,
25.2.2 to the auditor for the time being of the company,
25.2.3 to every Director of the company whether a member or not, and no other person shall be entitled to receive notice of any meetings.
25.3 A notice served by post shall be deemed to have been received and brought to the notice of the addressee at the time when the notice containing the same was sent out and in proving the giving of the notice by post, it shall be sufficient to prove that the letter containing the notice was properly addressed and posted.
25.4 Any notice by the Company shall be signed by a Director or by someone authorized by a Director.
25.5 The bona fide omission to give notice of a meeting to or the non-receipt of notice of a meeting by any person entitled to receive notice shall not invalidate the proceedings of that meeting.
25.6 The Company shall not be responsible for the loss in transmission of documents sent through the post to the address furnished by any Member to the Company for the giving of notices to him, whether or not it was so sent at his request.
26. GENERAL
26.1 The Company may enter into agreements with Members for the provision of amenities and services to the Members and to levy a reasonable charge in respect of the provision thereof.
26.2 Should the Company provide security services and/or other services for Members in the Scheme, all Members shall be obliged to:
26.2.1 permit the installation of any equipment for the purposes of such services as may be determined by the Company from time to time;
26.2.2 to make payment of charges raised by the Company in respect of such services;
26.2.3 abide by such terms and conditions of the provisions of-such services as may be laid down by the Company from time to time-
26.3 The Directors may delegate any of their powers to Managing Agent as they may determine subject to any restriction imposed or direction given at any General Meeting of the Company.
26.4 The Company may by special resolution –
26.4.1 do anything that in terms of the Act may be done only if authorized by its Articles or only if authorized by its Memorandum and Articles;
26.4.2 in particular and without prejudice to the generality of the aforegoing alter its Article or Memorandum in any way permitted by law subject only to any restriction in that regard contained in the Memorandum.
26.5 Where the boundary of any Member's erf also constitutes the Scheme, such Member shall be obliged to permit the Company to erect upon such Member's Property immediately adjacent to such boundary, such walling or other fencing as the Developer and/or Company may determine. Such a Member shall not be entitled to interfere in any manner whatsoever with any such walling or other fencing, and shall permit the Company from time to time access to such Member's Property in order to inspect such walling or fencing and to effect such repairs as may be necessary from time to time. In the event of any such Member wishing to erect his own walling or fencing, he shall be obliged to erect such walling within the walling or fencing referred to above and subject to such conditions as the Company may lay down to permit the Company access to the boundary walling or fencing concerned.
26.6 The Company shall be responsible for the maintenance of the security gate and the security fence,
26.7 The Managing Agents referred to in Article 26.3 will be obliged tobe registered with the Estate Agent Board and as such to be governed by the Rules and regulations of the Estate Agent Board.
26.8 The conduct rules as provided by the directors of the Company will apply and be binding on every Member at the Company, and may from time to time, be amended by a resolution of the Company.
26.9 The architectural guidelines as set out in Annexure 3 will apply and be binding on every member at the Company.
26.10 This Memorandum and Articles of Association will at all times be subject to the provisions of the Companies Act of 1973.
26.11 In the event of any articles of this Articles of Association being contrary to the Companies Act and therefore, or for any other reason be considered invalid, the rest of this Articles of association will be valid and binding upon all the Members of the Company.
26.12 The developer reserves the right to erect advertising boards on the communal property and/ or the side of the road within the scheme.
26.13 The developer reserves the right to make use of the club houses for the purpose of marketing of stands or units in the scheme, until transfer of the last stand has been effected.
26.14 The developer reserves the right to appoint a Security Company for the purpose of access control and for protecting the developer’s interests in the development until completion of the development.
26.15 The developer reserves the right to remove any temporary electrical fence erected on walls and / or fences of the sectional title complex in the scheme.
26.16 The developer is entitled to do an extension of the boundaries of the estate by including erven which are currently outside the estate.
27. INDEMNITY
Subject to the provisions of Section 247 of the Act, every Director, manager and officer of the Company and every other person (whether an officer of the Company or not) employed by the Company, and the auditor, shall be indemnified out of the funds of the Company against all liability incurred by him as such Director, manager, officer or auditor in defending any proceedings whether civil or criminal, in which judgment is given in his favour or in which he is acquitted or in connection to any application under Section 248 in which relief is granted to him by the Court.
28. INCORPORATION OF FURTHER PROPERTY INTO THE SHEME
Further property/ properties may only be incorporated into the Scheme and/or the boundaries of the Scheme may only be extended, by the passing of special resolution as prescribed the Companies Act. In the event of the Board of Directors receiving such a proposal, the following procedure will be followed.
28.1 The Board of Directors will evaluate the proposal to determine the long term effects for the members and the impact such a proposal will have on members who will directly be affected.
28.2 Should the Board of Directors believe that the proposal is in the common interest of the members and has merit for acceptance, the Board will call Special General Meeting for the purpose of discussing the proposal.
28.3 Due notice in terms of Section 199 of the Act will be given, and a detailed proposal will be made available for inspection in the Scheme Managing Agents Office during the notice period.
28.4 At the Special General Meeting a detailed proposal will be made by the proposal for discussion and voted upon at the meeting.
28.5 Acceptance of such a proposal will require a majority of 75% of votes, as set out in Section 199 of the Companies Act.
ANNEXURE 1
THIS Property is subject to the following condition imposed by the developer/transferor in favour of Crescent Wood Home Owners Association (Association Incorporated under Section 21 of act 61 of 1973):
1. “The transferee, their successors in title or assigns/ (his heirs, executors, administrators or assigns) are compelled to be a Member of the abovementioned Home Owners Association from the date of registration of the Property into his/their name.”
2. “The transferee, their successors in title or assigns/ (his heirs, executors, administrators or assigns) shall not be entitled to transfer the Property in any manner, without obtaining the prior written permission of the Crescent Wood Home Owners Association and then only subject to the condition that the purchaser will become a Member of the said Crescent Wood Home Owners Association on the date registration of the Property into his name.”
ANNEXURE 2
FURTHER CONDITIONS
HOME OWNERS ASSOCIATION
(a) The Purchaser confirms that on registration of the Property into his name he shall automatically become a member of Crescent Wood Home Owners Association (referred to in this Memorandum as the HOA) and confirms that he shall obtain Membership subject to the Memorandum, Statutes, Constitution and Rules of the HOA. A copy of the constitution is available for inspection with the Agent, the Purchaser confirms being aware of the provisions thereof.
(b) The Purchaser will remain a Member of the HOA and be bound to its provisions for as long as he remains the registered owner of the property.
(c) Should the Purchaser sell the Property he will be obliged to inform the new Purchaser of the HOA and the new Purchaser’s obligation in terms of its provisions.
(d) The Purchaser shall require the written consent of the HOA to transfer the Property to a third party which consent will not be unreasonably withheld.
(e) As from date of transfer the Purchaser shall be liable for the payment to the HOA of a levy as determined by the HOA and which levy shall be utilized inter alia towards maintenance of property belonging to the HOA and the security fence as well as payment of disbursements relating to security matters and for such purposes as the constitution of the CWHOA may prescribe.