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Draft for Comment

THE COMPANIES ACT, NO. 71 OF 2008(AS AMENDED)

MEMORANDUM OF INCORPORATION

OF

HURLINGHAM GLENADRIENNE CRAIGHALL HERITAGE FOUNDATION (NPC)

(hereinafter referred to as the "Company")

REGISTRATION NUMBER: 2000/014182/08

This MOI was adopted by special resolution of the members on [TO BE INSERTED]

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CONTENTS

Clause Page

1. INTERPRETATION...........................................................................................32. CONFLICTS WITH THE MOI............................................................................63. INCORPORATION AND NATURE OF THE COMPANY...................................64. LIMITATION OF LIABILITY.............................................................................75. OBJECT.............................................................................................................76. POWERS OF THE COMPANY..........................................................................77. RESTRICTIVE CONDITIONS............................................................................78. ASSETS AND INCOME OF THE COMPANY....................................................79. SECTION 30B OF THE INCOME TAX ACT......................................................810. AMENDMENT OF MOI...................................................................................1011. COMPANY RULES..........................................................................................1112. APPLICATION OF OPTIONAL PROVISIONS OF THE COMPANIES ACT

........................................................................................................................1113. ELEGIBILITY FOR MEMBERSHIP AND DURATION OF MEMBERSHIP.......1114. MEMBERSHIP REGISTER AND NUMBERING..............................................1215. MEETINGS OF MEMBERS.............................................................................1316. MEETINGS BY ELECTRONIC COMMUNICATION.........................................1717. VOTES OF MEMBERS...................................................................................1818. PROXIES AND REPRESENTATIVES.............................................................1919. MEMBERS ACTING OTHER THAN AT A MEETING......................................1920. COMPOSITION AND POWERS OF THE BOARD OF DIRECTORS...............2021. DIRECTORS' MEETINGS...............................................................................2422. INDEMNIFICATION OF DIRECTORS.............................................................2623. COMMITTEES OF THE BOARD.....................................................................2724. ACCOUNTING RECORDS..............................................................................2825. EXTERNAL AUDITOR....................................................................................2926. ACCESS TO COMPANY RECORDS...............................................................2927. NOTICES........................................................................................................3028. WINDING UP.................................................................................................31

Document Number: 4331810 Version: 5

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1. INTERPRETATION

1.1 In this MOI, 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 "Auditors" means the auditors of the Company from time to time as appointed in terms of this MOI being Grant Thornton at the time of filing of this MOI;

1.1.2 "Board" means the board of Directors from time to time of the Company;

1.1.3 "Commission" means the Companies and Intellectual Property Commission established by section 185;

1.1.4 "Commissioner" means the commissioner for the South African Revenue Service appointed in terms of section 6 of the South African Revenue Service Act, 34 of 1997;

1.1.5 "Companies Act" means the Companies Act, No. 71 of 2008, as amended or re-enacted from time to time, and includes all schedules to such Companies Act;

1.1.6 "The Community" means the residents, property owners and business owners within suburbs of Hurlingham to the west of William Nicol drive, the suburb of Glenadrienne and the properties situated on Waterfall avenue, to the west of Athole Avenue;

1.1.7 "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;

1.1.8 "Director" means a member of the Board as contemplated in section 66 and includes any person occupying the position of a Director by whatever name designated;

1.1.9 "Distribution" shall have the meaning ascribed to it in the Companies Act;

1.1.10 "Electronic Communication" has the meaning set out in section 1 of the Electronic Communications and Transactions Act, No 25 of 2002;

1.1.11 "Executive Committee" means the committee established in terms of clause 23.3;


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1.1.12 "Income Tax Act" means the Income Tax Act, 58 of 1962, as amended from time to time;

1.1.13 "Law" means any law of general application, as amended and re-enacted from time to time, 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;

1.1.14 "MOI" means this memorandum of incorporation, as amended from time to time;

1.1.15 "Member" means any natural or juristic person, including a profit company, who holds membership in, and specified rights in respect of, the Company as contemplated in Schedule 1 of the Companies Act;

1.1.16 "Membership Register" means a register of Members of the Company required to be established in terms of section 50(1) and referred to in in clause 14 of this MOI;

1.1.17 "Objects" means the objects for which the Company has been established as described in clause 5;

1.1.18 "Regulations" means the regulations published in terms of the Companies Act, from time to time;

1.1.19 "Republic" means the Republic of South Africa;

1.1.20 "Voting Members" means members eligible to vote as provided in terms of clause 13.3;

1.1.21 "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 a form permitted in terms of the Companies Act and/or the Regulations.

1.2 In this MOI, unless the context clearly indicates otherwise:

1.2.1 words and expressions defined in the Companies Act and which are not defined herein shall have the meanings given to them in the Companies Act;

1.2.2 a reference to the Companies Act shall include a reference to the Regulations;

1.2.3 a reference to a section by number refers to the corresponding section of the Companies Act;


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1.2.4 clause headings are for convenience only and are not to be used in its interpretation;

1.2.5 a reference to a clause by number refers to the corresponding clause in this MOI;

1.2.6 an expression which denotes:

1.2.6.1 any gender includes the other genders;

1.2.6.2 a natural person includes a juristic person and vice versa; and

1.2.6.3 the singular includes the plural and vice versa.

1.2.7 if the due date for performance of any obligation in terms of this MOI 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;

1.2.8 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 MOI; and

1.2.9 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 Companies Act and/or the Regulations.

1.3 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.

1.4 Unless otherwise provided in this MOI, defined terms appearing in this MOI in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning.

1.5 Unless specifically otherwise provided, any number of Days prescribed shall be determined by excluding the first and including the last Day or, where the last Day falls on a Day that is not a Business Day, the next succeeding Business Day.

1.6 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.


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2. CONFLICTS WITH THE MOI

As required by the Companies Act, in any instance where there is a conflict between a provision (be it expressed, implied or tacit) of this MOI and:

2.1 an alterable or elective provision of the Companies Act, the provision of this MOI shall prevail to the extent of the conflict; and

2.2 an unalterable or non-elective provision of the Companies Act, the unalterable or non-elective provision of the Companies Act shall prevail to the extent of the conflict unless the MOI imposes on the Company a higher standard, greater restriction, longer period of time or similarly more onerous requirement, in which event the relevant provision of this MOI shall prevail to the extent of the conflict.

3. INCORPORATION AND NATURE OF THE COMPANY

3.1 The Company is incorporated as a Non-Profit company and governed by:

3.1.1 The unalterable provisions of the Companies Act applicable to Non-Profit Companies, and provisions imposing on the Company a higher standard, greater restrictions, longer period of time or any similar more onerous requirement, than would otherwise apply to the Company in terms of an unalterable provision of the Companies Act that is applicable to Non-Profit Companies;

3.1.2 The alterable provisions of the Companies Act applicable to Non-Profit Companies, subject to the limitation, extensions, restrictions, variations or substitutions set out in this MOI;

3.1.3 The provisions of this MOI.

3.2 Each person bound by this MOI (which shall include, for the time being the Company and each Director, and prescribed officer of the Company, or any person who is entitled to exercise any voting rights in relation to the Company) is required to familiarise themselves with the relevant provisions of the Companies Act including those contemplated by clauses 3.1.1 and3.1.2 and the provisions of this MOI.

4. LIMITATION OF LIABILITY

No person shall, solely by reason of being an incorporator, Member or Director of the Company, be liable for any liabilities or obligations of the Company.

5. OBJECT

The Company is incorporated to primarily and predominantly advance and protect the interests, safety and wellbeing of the Community;


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6. POWERS OF THE COMPANY

6.1 The Company has all of the legal powers and capacity contemplated in the Companies Act, and no provision contained in this MOI should be interpreted or construed as negating, limiting, or restricting those powers in any way whatsoever.

6.2 Except to the extent necessarily implied by the Objects, the legal powers and capacity of the Company are not subject to any restrictions, limitations or qualifications, as contemplated in section 19(1)(b)(ii).

7. RESTRICTIVE CONDITIONS

Clauses 10.2of this MOI imposes restrictive conditions, as contemplated in section 15(2)(b) or (c), which prohibit the amendment of this MOI unless the proposed amendment is consistent with the provisions of Item 1(2) to Item 1(6) of Schedule 1 of the Companies Act and section 30B of the Income tax Act.

8. ASSETS AND INCOME OF THE COMPANY

8.1 The Company shall not, directly or indirectly, pay any portion of its income or transfer any of its assets regardless of how the income or asset was derived, to any person who is or was an incorporator of the Company or who is a Member or Director or a person appointing a Director of the Company, except to the extent permitted in terms of Item 1(3) of Schedule 1 of the Companies Act.

8.2 Having regard to the Objects of the Company, clause 8.1 does not preclude:

8.2.1 As reasonable remuneration:

8.2.1.1 The payment of reasonable remuneration for goods delivered or services rendered to, or at the direction of, the Company;

8.2.1.2 Payment of, or reimbursement for, expenses incurred to advance the Objects of the Company.

8.2.2 Payment of an amount due and payable by the Company in terms of a bona fide agreement between the Company and that person or another;

8.2.3 Payment in respect of any rights of that person, to the extent that such rights are administered by the Company in order to advance a stated Object of the Company;


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8.2.4 Payment in respect of any legal obligation binding on the Company.

8.3 Subject to clause 8.1, the Company may:

8.3.1 Acquire and hold securities issued by a profit company other than an interest in any business, profession or occupation which is carried on by the Members; or

8.3.2 Directly or indirectly, alone or with any other person, carry on any business, trade or undertaking consistent with or ancillary to the Objects.

9. SECTION 30B OF THE INCOME TAX ACT

9.1 Subject to approval by the Commissioner in terms of section 30B of the Income Tax Act, the receipts and accruals of the Company shall, in accordance with the provisions of section 10(1)(d)(iii) of the Income Tax Act, be exempt from normal tax as such term is defined in the Income Tax Act.

9.2 Both the Board and the Executive Committee shall comprise of at least three persons, who are not Connected Persons in relation to each other and who accept the fiduciary responsibilities of the Company.

9.3 No single person shall directly or indirectly control the decision-making powers relating to the Company.

9.4 The Company shall not directly or indirectly distribute any of its funds or assets to any person other than in the course of furthering its Objects.

9.5 The Company shall utilise substantially the whole of its funds for the Objects described in clause 5 for which it has been established.

9.6 No Member shall, directly or indirectly, have any personal or private interest in the Company.

9.7 Substantially the whole of the activities of the Company shall be directed to the furtherance of its Objects described in clause 5 and not for the specific benefit of an individual Member or minority group.

9.8 The Company shall not have a share or other interest in any business, profession or occupation which is carried on by its Members.

9.9 The Company shall not pay to any employee, office bearer, Member or other person any remuneration, as defined in the Fourth Schedule to the Income Tax Act, which is excessive, having regard to what is generally considered reasonable in the section and in relation to the service rendered.


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9.10 Substantially the whole of the Company's funding shall be derived from its long-term Members, in the form of monthly membership contributions, donations or otherwise, or from an appropriation by the government of the Republic in the national, provincial or local sphere.

9.11 If the Company is wound up or liquidated, the Company shall transfer its assets to:

9.11.1 Another entity approved by the Commissioner in terms of section 30B of the Income Tax Act;

9.11.2 A public benefit organisation approved in terms of section 30 of the Income Tax Act; or

9.11.3 An institution, board or body which is exempt from tax under section 10(1)(cA)(i) of the Income Tax Act).

9.12 The Board of Executive Committee shall submit all proposed amendments of this MOI to the Commissioner for approval prior to filing such proposed amendments with the Commission.

9.13 The Company will comply with such reporting requirements as may be determined by the Commissioner from time to time.

9.14 The Company is not knowingly and will not knowingly become a party to and does not knowingly and will not knowingly permit itself to be used as part of, an impermissible avoidance arrangement contemplated in Part IIA of Chapter III of the Income Tax Act, or a transaction, operation or scheme contemplated in section 103(5) of the Income Tax Act.

10. AMENDMENT OF MOI

10.1 Subject to the provisions of clause 10.2 this MOI will only be altered or amended:

10.1.1 in compliance with a court order which is effected by a resolution of the Board; or

10.1.2 by a special resolution of the Members but subject to that special resolution having been proposed by:

10.1.2.1 the Board, or

10.1.2.2 Members

and such special resolution having been approved at a Members' meeting by 75% (seventy five percent) of the members present in person or by proxy at such Member's meeting or in accordance with section 60 is adopted at a Members' meeting or in accordance with section 60.

10.2 All amendments must:


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10.2.1 Be consistent with the provisions of:

10.2.1.1 The Companies Act; and

10.2.1.2 Section 30B of the Income Tax Act 58 of 1962

and any amendment which is inconsistent with such provisions shall be of no force and effect; and

10.2.1.3 Be approved by the Commissioner prior to filing such amendments with the Commission.

10.3 An amendment of this MOI will take effect from the later of:

10.3.1 the date on, and time at, which the Commission accepts the filing of the notice of amendment contemplated in section 16(7); and

10.3.2 the date, if any, set out in the said notice of amendment,

save in the case of an amendment that changes the name of the Company, which will take effect from the date set out in the amended registration certificate issued by the Commission.

10.4 The Board, or an individual authorised by the Board, may alter the MOI, in any manner necessary to correct a patent error in spelling, punctuation, reference, grammar or similar defect on the face of the document by filing a notice of the alteration with the Commission.

10.5 At any time after having filed its MOI with the Commission, the Company may file one or more translations of it, in any official language or languages of the Republic, provided that every such translation must be accompanied by a sworn statement by the person who made the translation, stating that it is a true, accurate and complete translation of the MOI.

10.6 At any time after having filed its MOI with the Commission, and having subsequently filed one or more alterations or amendments to it, the Company may (or if the Commission requires it to, must) file a consolidated revision of the MOI, as so altered or amended, provided that every such consolidated revision filed with the Commission in terms this clause 10.6 must be accompanied by:

10.6.1 a sworn statement by a Director; or

10.6.2 a statement by an attorney or notary public,

stating that it is a true, accurate and complete representation of the Company’s MOI, as altered or amended up to the date of the statement.


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11. COMPANY RULES

The Board is prohibited from making, amending or repealing any rules relating to the governance of the Company as contemplated in section 15(3) and the Board's capacity to make such rules is hereby excluded.

12. APPLICATION OF OPTIONAL PROVISIONS OF THE COMPANIES ACT

12.1 The Company does not voluntarily elect to comply with all the extended accountability provisions contained in Chapter 3 (Enhanced Accountability and Transparency) of the Companies Act.

13. ELEGIBILITY FOR MEMBERSHIP AND DURATION OF MEMBERSHIP

13.1 Any resident, property owner or business owner within the area of the Community is eligible to become a member of the Company.

13.2 Membership of the company will commence on the date of submission of the membership form together with payment of a first donation to the Company or the first monthly membership contribution and will continue for so long as the member is a resident within the Community and continues to contribute towards the Company.

13.3 A Voting Member is a Member who makes monthly membership contributions, is not in default of payment of the monthly membership contributions and has been a Member of good standing for at least 3 months prior to the date upon which the Member wishes to exercise his vote.

13.4 APPLICATION FOR MEMBERSHIP AND MEMBERSHIP CONTRIBUTIONS

13.5 Applicants applying for membership of the Company must complete and submit to the Executive Committee the application form for membership in the manner prescribed by the Executive Committee from time to time;

13.6 The Company is funded primarily by a combination of monthly membership contributions and ad hoc contributions received from its Members. The amount of the monthly membership contribution or any other contributions may be prescribed from time to time as well as the manner and basis upon which the contributions are to be paid to the Company shall be determined by the Executive Committee.

13.7 The Executive Committee shall notify all applicants as well as existing Members, in writing, of the contributions payable by them to the Company and the terms upon which such contributions are payable. To the extent that there is an increase in the monthly contributions payable by Members to the Company, the Executive Committee shall notify such members in writing, of such increase at least 30 (thirty) Days prior to such increase coming into effect.


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13.8 If any Member (the "Inactive Member") fails to pay the monthly membership contributions for a period of 90 (ninety) Days or more, then the Executive Committee shall be entitled to provide written notice to the Inactive Member to ascertain whether the Inactive Member intends to reinstate his monthly contribution. Should no favourable response be received within 7 (seven) Days from the date of written notice, the Executive Committee may cancel that member's membership in the Company.

13.9 Whilst a Member is in default of payment of the monthly contribution, that Member shall not be entitled to exercise any voting rights.

14. MEMBERSHIP REGISTER AND NUMBERING

14.1 The Company must establish or cause to be established a Membership Register of its Members and maintain the Membership Register in accordance with the prescribed standards.

14.2 As soon as practicable after the appointment or re-instatement of a Member, the Company must enter or cause to be entered in its Membership Register, in respect of every class and category of Members:

14.2.1 The name and addresses of each Member;

14.2.2 The electronic address of those Members who have furnished them;

14.2.3 Any other prescribed information.

14.3 The Membership Register maintained in accordance with the Companies Act shall be sufficient proof of facts recorded in it, in the absence of evidence to the contrary.

15. MEETINGS OF MEMBERS

15.1 Calling of Meetings

15.1.1 Any general meeting, other than the annual general meeting of the Company, shall be called an extraordinary general meeting.

15.1.2 The Board is entitled to call an annual general meeting at any time.

15.1.3 The Board, the Executive Committee, or in the circumstances contemplated in clause15.1.5 the Members are entitled to call extraordinary general meetings of the Company at any time.

15.1.4 The Company shall hold a meeting of its Members:


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15.1.4.1 at any time that the Board is required by the Companies Act or this MOI to refer a matter to Members for decision; or

15.1.4.2 When required in terms of clause 15.1.5 or by any other provision of this MOI.

15.1.5 Subject to the provisions of sections 61(5) and 61(6), the Board shall call an extraordinary general meeting if 1 (one) or more written and signed demands are delivered to the Company and:

15.1.5.1 each such demand describes the specific purpose for which the meeting is proposed; and

15.1.5.2 in aggregate, demands for substantially the same purpose are made and signed by the Voting Members, as of the earliest time specified in any of those demands, which shall not be less than 30 (thirty) Days from the date of the intended meeting, 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.

15.2 Annual General Meetings

15.2.1 The Company shall, in addition to any other meetings of the Company that may be convened from time to time, 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.

15.2.2 Each annual general meeting of the Company contemplated in clause 15.2.1 shall provide for at least the following business to be transacted:

15.2.2.1 the presentation of the Directors’ report;

15.2.2.2 the presentation of the audited financial statements for the immediately preceding financial year of the Company;

15.2.2.3 the election of Directors, to the extent required by this MOI;

15.2.2.4 the appointment of an auditor for the following financial year and determining the auditors remuneration; and


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15.2.2.5 Any matters raised by the Members, with or without advance notice to the Company.

15.2.3 In addition to the requirements of clause 15.3, the notice calling an annual general meeting must include:

15.2.3.1 the financial statements to be presented, or a summarized form thereof; and

15.2.3.2 directions for obtaining a copy of the complete annual financial statements for the preceding year.

15.2.4 Save as otherwise provided herein, the Company is not required to hold any other Meetings other than those specifically required by the Companies Act.

15.3 Notice to Members

15.3.1 The Company shall deliver notices of extraordinary general meetings and annual general meetings to each Member;

15.3.2 The minimum number of Days for the Company to deliver a notice of a Meeting to the Members is 14 (fourteen) before the meeting is to begin.

15.3.3 A notice of a meeting must be in Writing and include the information set out in sections 62(3) and 63(3) and shall be given in any manner authorised by the Regulations and particularly Table CR3 annexed to the Regulations.

15.3.4 Any notice sent by any means permitted in Table CR 3 annexed to the Regulations shall be deemed to have been delivered at the date and time relating to such method of delivery as set out in such Table.

15.3.5 The accidental omission to give notice of any meeting to any particular Member or Members an immaterial defect in the manner or form of giving notice of any such meeting, shall not invalidate any resolution passed at any such meeting.

15.3.6 The Company may, subject to the Companies Act:

15.3.6.1 effect electronic delivery of; or

15.3.6.2 Post on the Company’s website and simultaneously with or as soon as possible after such posting, notify the Member by electronic mail that it has been posted on its website, Member information such as integrated annual


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reports, interim reports, preliminary reports, notices of meetings and proxy forms.

15.3.7 Any notice sent by electronic mail shall be deemed to have been served on the Day on which the electronic mail was dispatched to the registered electronic mail address, and any notice posted on the Company’s website shall be deemed to have been received on the Day the Member is notified by the Company by electronic mail that it has posted the notice on its website.

15.4 Quorum and Adjournment of Meetings

15.4.1 Subject to the provisions of clauses 15.4.2 to 15.4.515.4.5 (both inclusive), the quorum for a Members meeting to begin or for a matter to be considered and decided upon at such meeting shall be Voting Members holding in aggregate, at least 25% (twenty five percent) of the voting rights who are present in person, represented by duly authorised representatives or present by proxy at the said meeting.

15.4.2 If, within 30 (thirty) minutes after the appointed time for a meeting to begin, the requirements of clause15.4.1:

15.4.2.1 for that meeting to begin have not been satisfied, the meeting is postponed without motion, vote or further notice, for 1 (one) week; and

15.4.2.2 for consideration of a particular matter to begin have not been satisfied:

(i) 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

(ii) if there is no other business on the agenda of the meeting, the meeting is adjourned, without any motion or vote, for 1 (one) week.

15.4.3 The person intended to preside at a meeting, where the quorum requirements in clause 15.4.115.4.1 are not satisfied, may extend the 30 (thirty) minute limit allowed for a reasonable period on the grounds that:

15.4.3.1 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;


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or one or more particular Member, having been delayed, have communicated an intention to attend the meeting, and those Members, together with others in attendance, would satisfy the quorum requirements of clause 15.4.1; or

15.4.3.2 any other reason such person considers appropriate.

15.4.4 The Company shall not be required to give further notice of a meeting that has been postponed or adjourned in terms of clause 15.4.2 unless the location for the meeting is different from:

15.4.4.1 the location of the postponed or adjourned meeting; or

15.4.4.2 the location announced at the time of adjournment, in the case of an adjourned meeting.

15.4.5 If the quorum requirements in clause 15.4.1 have not been satisfied at the time appointed for a postponed meeting to begin, or for an adjourned meeting to resume, the Members present in person or by proxy will be deemed to constitute a quorum.

15.4.6 A meeting may not be adjourned beyond 60 Days after the date of the Meeting.

15.5 Conduct of Meetings

15.5.1 The chairman, if any, of the Board shall preside as chairman at every Meeting.

15.5.2 If there is no such chairman, or if at any meeting he or she is not present within 15 (fifteen) minutes after the time appointed for holding the meeting or is unwilling to act as chairman, the Directors present shall choose one of their numbers to be chairman. If no Director is willing to act as chairman or if no Director is present within 15 (fifteen) minutes after the time appointed for commencement of the meeting, the Members present shall by way of a poll, appoint one of their numbers to be chairman of the meeting.

16. MEETINGS BY ELECTRONIC COMMUNICATION

16.1 The Company may conduct a meeting entirely by Electronic Communication or provide for participation in a meeting by Electronic


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Communication, as set out in section 63, and the power of the Company to do so is not limited or restricted by this MOI. Accordingly:

16.1.1 any Members' meeting may be conducted entirely by Electronic Communication; or

16.1.2 one or more Member, or proxies for Members, may participate by Electronic Communication in all or part of any Members' meeting 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.

16.2 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.

17. VOTES OF MEMBERS

17.1 Subject to the provisions of clause17.2, voting on a particular matter shall be by way of a show of hands, where any Voting Member is present at the meeting, whether as a Member or as proxy for a Member, shall have one vote.

17.2 Notwithstanding the provisions of clause 17.1 a polled vote may be held on any particular matter to be voted on at a meeting if demand is made for such vote by at least 5 (five) persons having the right to vote on that matter, whether in their capacity as a Voting Member eligible or as a proxy for a Voting Member.

17.3 In computing the majority on the poll, regard shall be had to the number of votes to which each Member is entitled and in computing the majority on a show of hands, regard shall be had to the number of Voting Members who are present at the meeting.

17.4 In the case of an equality of votes on a poll, the chairman of the meeting at which the poll is demanded, shall not be entitled to a second or casting vote.

17.5 For an ordinary resolution to be approved it must be supported by more than 50% (fifty percent) of the voting rights of Voting Members exercised on the resolution.


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17.6 For a special resolution to be approved it must be supported by the holders of at least 75% (seventy five percent) of the votes exercised by the Voting Members on the resolution.

17.7 No matters, except:

17.7.1 those matters set out in section 65(11);

17.7.2 any other matter required by the Companies Act to be resolved by means of a special resolution; or

17.7.3 those matters required by this MOI to be resolved by means of a special resolution,

require a special resolution adopted at a Members' meeting of the Company.

17.8 A proposed resolution must be expressed with sufficient clarity and specificity and accompanied by sufficient information or explanatory material to enable a Member who is entitled to vote on the resolution to determine whether to participate in the meeting and to seek to influence the outcome of the vote on the resolution.

18. PROXIES AND REPRESENTATIVES

18.1 A Voting Member may, at any time, appoint any individual, including an individual who is not a Member, as a proxy (the "Nominated Representative") to act as its representative at any meeting of Members, in which event, such Nominated Representative shall exercise the same powers as the Voting Member and the Voting Member shall, prior to the commencement of any meeting of members, lodge a resolution, power of attorney or other document confirming the granting of such authority to the Nominated Representative with the Company.

19. MEMBERS ACTING OTHER THAN AT A MEETING

19.1 In accordance with the provisions of section 60, a resolution that could be voted on at a Members' meeting may instead be:

19.1.1 submitted for consideration to the Members entitled to exercise the voting rights in relation to the resolution; and

19.1.2 Voted on in Writing by such Voting Members within a period of 20 (twenty) Business Days after the resolution was submitted to them.

19.2 A resolution contemplated in clause19.1:

19.2.1 will have been adopted if it is supported by persons entitled to exercise sufficient voting rights for it to have been adopted as


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an ordinary or special resolution, as the case may be, at a properly constituted Members' meeting; and

19.2.2 if adopted, will have the same effect as if it had been approved by voting at a meeting.

19.3 An election of a Director may be conducted by written polling of all of the Members entitled to exercise voting rights in relation to the election of that Director.

19.4 Within 10 (ten) Business Days after adopting a resolution in accordance with the procedures provided in this clause 19, the Company 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 the resolution.

20. COMPOSITION AND POWERS OF THE BOARD OF DIRECTORS

20.1 Number of Directors

20.1.1 The Board shall comprise at least 3 (three) Directors and a maximum of 5 (five) Directors.

20.1.2 Every person holding office as a Director, prescribed officer, Company secretary or auditor of the Company immediately before the effective date of the Companies Act will, as contemplated in item 7(1) of Schedule 5 to the Companies Act, continue to hold that office.

20.2 Nomination of Directors

20.2.1 Each Voting Members shall be entitled, by written notice to the Company, to nominate for election him or herself or another Voting member to the Board.

20.2.2 The nomination of any director is to be delivered by such Voting Member to the Company at least 7 days prior to the date upon which the annual general meeting will be held.

20.3 Election of Directors

20.3.1 All Directors shall be elected by an ordinary resolution of the Voting Members at a general or annual general meeting of the Company by the persons entitled to exercise voting rights in such an election, being the Voting Members of the Company.

20.3.2 In any election of Directors the election is to be conducted as a series of votes, each of which is on the candidacy of a single individual to fill a single vacancy, with the series of votes continuing until all vacancies on the Board have been filled.


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20.3.3 In each vote to fill a vacancy, each voting right entitled to be exercised may be exercised once and the vacancy is filled only if a majority of the votes exercised support the candidate.

20.3.4 The Company shall only have elected Directors and there shall be no appointed or ex officio Directors as contemplated in section 66(4).

20.4 Eligibility, Qualification and Removal of Directors

20.4.1 In order to be eligible for election as a Director a person must be a Voting Member of the Company;

20.4.2 A person is ineligible or disqualified from becoming or remaining a Director or prescribed officer of the Company if such person fails to satisfy the eligibility requirements or qualifications set out in section 69 or ceases to be a Voting Member.

20.4.3 Each elected Director of the Company shall serve for an indefinite term as contemplated in section 68(1).

20.5 Powers of the Directors

20.5.1 The Board has the power to:

20.5.1.1 appoint any person as Director to fill any vacancy on the Board on a temporary basis, as set out in section 68(3), provided that such appointment must be confirmed by the Voting Members at the next annual general meeting;

20.5.1.2 exercise all of the powers and perform any of the functions of the Company, as set out in section 66(1); and

20.5.2 Any person appointed by the Board in terms of clause20.5.1.1:-

20.5.2.1 must be a person who satisfies all of the eligibility requirements set out in clause 20.4.1;

20.5.2.2 shall have all the powers, functions and duties of a Director and is subject to all of the liabilities of any other Director of the Company;

20.5.2.3 must retire at the next general meeting or annual general meeting of the Company; and

20.5.2.4 shall be eligible for re-election.


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20.5.3 The Directors may at any time and from time to time by power of attorney appoint any person or persons to be the attorney(s) and agent(s) of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors in terms of this MOI) 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, the members, 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. 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.

20.5.4 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 Company, 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.

20.5.5 All acts performed by the Directors or by the Executive Committee or by any person acting as a Director or a member of the Executive 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.

20.6 Directors' Interests

20.6.1 A Director may hold any other office or place of profit under the Company (except that of auditor) or any Subsidiary of the Company in conjunction with the office of Director, for such period and otherwise as a disinterested quorum of the Directors may determine.

20.6.2 Each 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) and the qualifications contained in section 75(3), comply with all of the provisions of section 75 in the event that any of them (or any person who is a related


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person to them) has a personal financial interest in any matter to be considered by the Board.

21. DIRECTORS' MEETINGS

21.1 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.

21.2 The Directors may elect a chairman of the Board and determine the period for which he is to hold office. At any meeting of Directors, the chairman of the Board, or if he is not present or willing to act as such, the Directors present at any Directors' meeting shall choose 1 (one) of their number to be chairman of the meeting. The chairman shall have a casting or second vote.

21.3 Any 2 (two) Directors may call a meeting of the Board at any time.

21.4 The Board has the power to:

21.4.1 consider any matter and/or adopt any resolution other than at a meeting as set out in section 74 and, accordingly, any decision that could be voted on at a meeting of the Board may instead be adopted by the written consent of the majority of the Directors given in person or by Electronic Communication, provided that each Director has received notice of the matter to be decided. Any resolution adopted in the manner contemplated in this clause 21.4:

21.4.1.1 shall be valid and effective as if it had been approved by voting at a meeting of Directors;

21.4.1.2 shall be inserted into the minute book of the Company; and

21.4.1.3 may consist of several documents and shall be deemed to have been passed on the date on which it was signed by the last Director who signed it (unless otherwise stated in the resolution);

21.4.2 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), 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;


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21.4.3 determine the manner and form of providing notice of its meetings as set out in section 73(4), provided that:

21.4.3.1 the notice period for the convening of any meeting of the Board will be at least 7 (seven) Days unless the decision of the Directors is required on an urgent basis which justifies a shorter period of notice, in which event 2 (two) Day's prior written notice shall be given to the Directors. The decision of the chairman of the Board or failing the chairman for any reason, the decision of any two Directors as to whether a matter should be decided on an urgent basis shall be final and binding on the Directors;

21.4.3.2 An agenda of the matters to be discussed at the meeting shall be given to each Director, together with the notice referred to in clause 21.4.3.1 as well as all related materials and the minutes of previous Directors' meeting.

21.4.4 the meeting may proceed despite a failure or defect in giving notice of the meeting, provided that all of the Directors acknowledge actual receipt of the notice and are present at the meeting or waive notice of the meeting,

and the powers of the Board in respect of the above matters are limited or restricted to the extent set out in clause 21.3.

21.5 Subject to the provisions of clause 21.7, a quorum at any Directors' meeting of the Company shall be a majority of the Directors for the time being.

21.6 In the event of a quorum not being present at a Directors' meeting the chairman of the meeting shall postpone such meeting for a period of 7 (seven) Days and notice of such postponed meeting including the date, time and place of such postponed meeting shall be sent to the Directors. The agenda for any postponed meeting shall be the same agenda as for the meeting which was originally scheduled.

21.7 In the event of a quorum not being present at a postponed meeting, after proper notice has been given any Directors' resolution taken at such postponed meeting shall be binding and of full force and effect.

21.8 Save as otherwise provided for in this MOI, voting at Directors' meetings shall take place on a show of hands and a majority of the votes cast in favour of a resolution is sufficient to approve that resolution.

21.9 In the case of a tied vote, the chairman shall have a deciding vote in addition to any deliberative vote.


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21.10 In the case of a round robin resolution, the resolution requires approval by the majority of the directors subject to all directors having received notice of the proposed resolution;

21.11 Resolutions adopted by the Board:

21.11.1 must be dated and sequentially numbered; and

21.11.2 are effective as of the date of the resolution, unless any resolution states otherwise.

21.12 Any minutes of a meeting, or a resolution, signed by the chairman of the meeting, or by the chairman of the next meeting of the Board, are evidence of the proceedings of that meeting, or the adoption of that resolution, as the case may be.

22. INDEMNIFICATION OF DIRECTORS

22.1 For purposes of this clause 22, "Director" includes a former Director, a prescribed officer or a person who is a member of a committee of the Board, irrespective of whether or not the person is also a member of the Board.

22.2 The authority of the Company to advance expenses to a Director to defend litigation in any proceedings arising out of the Director’s service to the Company and to directly or indirectly indemnify a Director for such expenses if those proceedings are abandoned or exculpate the Director or arise in respect of any liability for which the Company may indemnify the Director, is not restricted, limited or varied by this MOI.

22.3 The authority of the Company to indemnify a Director in respect of any liability for which the Company may indemnify a Director, is not restricted, limited or varied by this MOI.

22.4 The authority of the Company to purchase insurance to protect:

22.4.1 a Director against any liability or expenses for which the Company may indemnify a Director as contemplated in clause 22.2; or

22.4.2 the Company against any contingency including but not limited to any expenses that the Company is permitted to advance or for which the Company is permitted to indemnify a Director as contemplated in clause 22.3 or any liability for which the Company is permitted to indemnify a Director as contemplated in clause 22.3,

is not restricted, limited or varied by this MOI.


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23. COMMITTEES OF THE BOARD

23.1 The authority of the Board to appoint any number of committees for managing any of the affairs of the Company and to delegate to any such committee any authority of the Board, as contemplated in section 72(1) is not restricted, limited or varied by this MOI.

23.2 Subject to the powers and authorities granted by the Board to any such committee, the authority of:

23.2.1 the Board to include persons who are not Directors of the Company, to the committee, provided that such persons are not ineligible or disqualified from being a Director as contemplated in the Companies Act and that no such person shall vote on a matter to be decided by the committee;

23.2.2 the committee to consult with or receive advice from any other person; and

23.2.3 the committee to exercise the full authority of the Board in respect of a matter referred to it as contemplated in section 72(2),

is not restricted, limited or varied by this MOI.

23.3 The Executive Committee

23.3.1 The Board shall appoint an executive committee who shall be responsible for the business, day to day affairs and management of the Company.

23.3.2 The members of the Executive Committee shall comprise of all of the Directors of the Company and, in the circumstances contemplated in clause 22.3.3, may comprise of additional persons who are not Directors.

23.3.3 The Executive Committee may, in its sole and absolute discretion, appoint other officers and/or third parties who are not Directors as members of the Executive Committee to undertake specific tasks and assignments for the benefit of the Company and its Members, provided that such persons are not ineligible or disqualified to be directors in terms of section 69 of the Companies Act; and no such persons shall have a vote on any matter to be decided by the Executive Committee, it being recorded that the appointment of any such persons as members would be in a honorary capacity.

23.3.4 The Executive Committee shall comprise of at least 3 (three) members and not more than 9 (nine) members.


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23.3.5 The Executive Committee is empowered to appoint any person as a member of the Executive Committee to fill any vacancy on the Executive Committee until the election of the members of the Executive Committee at the first Executive Committee meeting following the annual general meeting at which the new Directors are elected.

24. ACCOUNTING RECORDS

24.1 The Company shall keep all such accurate and complete accounting records, in English, as are necessary to enable the Company to satisfy its obligations in terms of:

24.1.1 the Companies Act;

24.1.2 any other Law with respect to the preparation of financial statements to which the Company may be subject;

24.1.3 the Regulations; and

24.1.4 this MOI.

24.2 The accounting records must be kept at the registered office of the Company or (subject to the provisions of section 25 of the Companies Act) at such other location within the Republic as the Board thinks fit, and shall at all times be accessible and open to inspection by the Board. Except as provided by the Companies Act, the provisions of this MOI, any Members' Agreement or the authority of the Board, no Member has any right to inspect any accounting record or document of the Company.

24.3 The Company shall each year prepare annual audited 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.

24.4 The Company voluntarily elects for the annual financial statements to be audited.

24.5 The annual financial statements shall be prepared on a basis that is not inconsistent with any unalterable or non-elective provision of the Companies Act and shall:

24.5.1 present fairly the state of affairs and business of the Company and explain the transactions and financial position of the business of the Company;

24.5.2 show the Company's assets, liabilities and equity, as well as its income and expenses;


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24.5.3 set out the date on which the statements were produced and the accounting period to which they apply; and

24.5.4 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.

25. EXTERNAL AUDITOR

25.1 The Company shall appoint an auditor each year at its annual general meeting. If the Company 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.

25.2 Auditors shall be appointed and their duties regulated in accordance with the Companies Act and any other applicable Law.

25.3 Subject to the provisions of the Companies Act, all actions of any person or firm acting as auditor shall be valid against all persons dealing in good faith with the Company, notwithstanding any shortcoming with regard to its appointment.

26. ACCESS TO COMPANY RECORDS

26.1 Each Member is entitled to inspect and copy, without any charge for any such inspection or upon payment of no more than the prescribed maximum charge for any such copy, the information contained in the records of the Company referred to in section 26(1), being:

26.1.1 this MOI, and any amendments or alterations thereof;

26.1.2 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);

26.1.3 all:

26.1.3.1 reports presented at an annual general meeting of the Company for a period of 7 (seven) years after the date of any such meeting; and

26.1.3.2 annual financial statements required by the Companies Act for a period of 7 (seven) years after the date on which each such particular statements were issued;

26.1.4 notice and minutes of all Members' meetings, including:


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26.1.4.1 all resolutions adopted by them, for 7 (seven) years after the date each such resolution was adopted; and

26.1.4.2 any document that was made available by the Company to the Members in relation to each such resolution;

26.2 A person not contemplated in clause 26.1 has a right to inspect the Membership Register and the register of Directors of the Company upon payment of an amount not exceeding the prescribed maximum fee for any such inspection.

27. NOTICES

27.1 All notices intended or required to be given by the Company to a Member of the Company shall be given in Writing in any manner authorised by the Regulations and particularly Table CR 3 annexed to the Regulations.

27.2 Each Member of the Company:

27.2.1 shall notify in Writing to the Company an address, which address shall be his registered address for the purposes of receiving written notices from the Company by post and if he has not named such an address he shall be deemed to have waived his right to be so served with notices; and

27.2.2 may notify in Writing to the Company an email address and/or facsimile number, which address shall be his address for the purposes of receiving notices by way of Electronic Communication.

27.3 Save to the extent that any of the following provisions of this clause 27.3 may be in conflict with any provision contained in the Companies Act or the Regulations, any notice sent by:

27.3.1 registered post to the last-known address of a Member shall be deemed to have been delivered on the 7th (seventh) Day following the Day on which the notice or document was posted as recorded by a post office, unless there is conclusive evidence that it was delivered on a different Day;

27.3.2 faxing the notice to a Member, if the Member has a fax number, shall be deemed to have been delivered on the date and at the time recorded by the fax receiver, unless there is conclusive evidence that it was delivered on a different date or at a different time;

27.3.3 sending the notice to a Member by electronic mail, if the Member has an address for the receiving of electronic mail, shall


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be deemed to have been delivered on the date and at the time recorded by the computer used by the sender, unless there is conclusive evidence that it was delivered on a different date or at a different time;

27.3.4 any other means permitted in the said Table CR 3 shall be deemed to have been delivered as provided for in that method of delivery in such Table.

28. WINDING UP

28.1 The Company may be voluntarily wound-up as contemplated in section 80.

28.2 Upon the winding-up or dissolution of the Company:

28.2.1 No past or present Member or Director of the Company is entitled to any part of the net value of the Company after its obligations and liabilities have been satisfied; and

28.2.2 The entire net value of the Company 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 having objectives similar to the Objects, provided that such entity is either:

28.2.2.1 Approved by the Commissioner in terms of section 30B of the Income Tax Act; or

28.2.2.2 A public benefit organisation approved in terms of section 30 of the Income Tax Act; or

28.2.2.3 An institution, board or body which is exempt from tax under the provisions of section 10(1)(cA)(i) of the Income Tax Act.

28.3 If the Executive Committee fails or is unable to determine the entity in respect of which the entire net value of the Company is to be distributed to as contemplated in clause 35.2.2, above, then the distribution of assets shall be made to such entity as is determined by Voting Members of the Company at or immediately before the time of its dissolution or failing such determination, by the court.


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