SEMHOA Constitution

1 DEFINITIONS

1.1 In this document, the following words and phrases shall, unless the context otherwise requires, have
the meanings hereinafter assigned to them:-

  •   1.1.1 “the Act” means the Companies Act, 71 of 2008 ; Amended 27.03.2013
  •   1.1.2 “the association” means the Seaward Master Home Owners Association (SEMHOA); Amended 27.03.2013
  •   1.1.3 “auditors” means the auditors of the association;
  •   1.1.4 “chairman” means the chairman of the Board of Trustees;
  •   1.1.5 “the developer” means the Seaward Development (Pty.) Limited or nominee and its successors-in-title;
  •   1.1.6 “development period” means the period from the establishment of the township and until all the erven defined herein have been sold and transferred by the township owner;
  •   1.1.7 “erf” means an erf in the township, a sectional title unit in the township or a mini subdivision of an erf in the township. In respect of any erf upon which two or more housing units may be built each of such erven shall be regarded as consisting of a number of separate erven equivalent to the number of housing units permitted to be built thereon in terms of the town planning scheme applicable to the estate;
  •   1.1.8 “Association fees and charges” shall include but not limited to, Amended 27.03.2013
  • 1.1.8.1 any levy, special levy, as allowed for in clause 6,
  • 1.1.8.2 basic and consumption charges for sewerage and water as prescribed by the municipal tariffs,
  • 1.1.8.3 any financial penalty as allowed for in terms of clause 7.2,
  • 1.1.8.4 interest on unpaid fees as prescribed in clause 6.10
  • 1.1.8.5 legal and collection fees as prescribed;
  • 1.1.8.6 any fee for any service rendered at the specific request of an owner or emergency work carried out to prevent damage, loss or injury by the Association for and on behalf.
  • 1.1.9 “in writing” means written, printed or lithographed or partly one and partly another and other modes of representing or producing words in a visible form;
  • 1.1.10 “managing agent” means any person or body appointed by the association as an independent contractor to undertake any of the functions of the association;
  • 1.1.11 “the representative member” shall mean the person elected to represent the units in asectional title development.
  • 1.1.12 “the site development guidelines” means the development guidelines set out in the document prepared by Hamilton Architects (Pty) Limited entitled “Seaward Estates – Site Development and Architectural Guidelines” lodged with the developer;
  • 1.1.13 “the environmental principles” means the environmental framework for the Initial Site Assessment, design, rehabilitation and landscaping requirements and all other relevant information approved by the Department of the Environment, Private Bag X07, Pietermaritzburg, and adopted by the Developer and the Seaward Estates Master Home Owners Association;
  • 1.1.14 “the Environmental Management Plan” means the comprehensive plan covering all the phases identified within Seaward Estates approved by the Department of the Environment and adopted by the Developer and the Seaward Estate Master Home Owners’ Association;
  • 1.1.15 “the gate house” means the security gate and buildings at the entrance to the estate;
  • 1.1.16 “estate” means the township shown on General Plan SG No. 2356/99 consisting of erven 1751 to 1823 Ballitoville and, on their proclamation, subsequent phases on the Rem of erf 1478 Ballito Extension 5;
  • 1.1.17 “the parks, areas of conservation significance, and water features” means the existing land resource designated and shown on the General Plan of the township (SG No. 2356/99 ) and any future amendments thereto which may include other areas that may be incorporated, restored and rehabilitated in accordance with the Environmental Management Plan for the benefit of the owners of erven in the township;
  • 1.1.18 “conservation significance” means an area to be designated on the General Plan of the township (SG No. ) which is in the process of being identified by the specialist “wetland study”, further development of parks or eco-trail which may be nominated now or at any time in the future for Registration and afforded conservation protection;
  • 1.1.19 “trustees” means the trustees of the association;
  • 1.1.20 “vice chairman” means the vice chairman of the Board of Trustees.

1.2 Unless the context otherwise requires, any words importing the singular number shall also include the plural number and vice versa and words importing any one gender shall include the other two genders.

2 LEGAL STATUS AND LIMITED LIABILITY

2.1 The association is a common law corporate body and as such:-

  • 2.1.1 its assets, liabilities, rights and obligations vest in it independently of its members;
  • 2.1.2 it may not conduct any business for profit or gain and it will use its funds solely for the objects for which it has been established and should it invest its funds on a temporary basis
  • it will have perpetual succession.
  • it may be sued in its own name.

2.2 The members will not by reason of their membership be liable for the liabilities and obligations of the association.

3 OBJECTS AND PURPOSE

The general purpose and object of the Association is to promote, advance and protect the collective interests of its Members and facilitate harmonious relationships amongst the Members whilst at the same time ensuring that the Members comply with all the obligations imposed upon them in terms of this Constitution and such other obligations as they may be bound to perform and, without derogating from the generality of the above, more specifically:

3.1 to take transfer of those portions of the acquired, common or purchased property that are to beowned by the Association for the benefit of its Members; [Amended 4.04.2018 AGM]

3.2 provide a secure environment for the members of the association by way of gated controlled access to the Estate by way of the gate house, perimeter fencing and the appointed security staff. [Amended 2012 AGM)

3.3 maintain the aesthetic standards of the Estate by controlling buildings and improvements on the erven in accordance with the Site Development and Architectural Guidelines, the approved Environmental Principles, and Environmental Management Plan and any amendments thereto approved by the Seaward Estates Master Home Owners Association from time to time.

3.4 maintain:-

  • 3.4.1 the gated security access and perimeter electrified fencing;
  • 3.4.2 the roads and verges in the Estate;
  • 3.4.3 the street lighting in the Estate;
  • 3.4.4 the areas of conservation significance, water features, and “wetland” areas and especially to preserve any eco-sensitive areas, plant species or colonies in accordance with the Environmental Management Plan for the benefit of the members and in accordance with any future rehabilitation and amendments approved by the Department of the Environment and adopted by the Seaward Estates Master Home Owners Association from time to time;

3.5 maintain good conduct standards of members and occupiers of erven in the Estate for the general benefit of all members in accordance with the Conduct Rules adopted by the Seaward Estates Master Home Owners Association;

3.6 insure and properly maintain all assets under its control;

3.7 take under its control on the terms and conditions of this constitution, on their proclamation, subsequent phases on the Rem of erf 1478 Ballito Extension 5 referred to in 1.1.13;

3.8 raise levies as provided for herein to fund the carrying out of its objects;

3.9 impose fines and penalties.

4 POWERS

The association has plenary powers (including all those normally enjoyed by a registered company), to enable it to achieve its objects, except only for the powers expressly or impliedly excluded by this constitution or by the association’s legal status as a common law corporate body.

5 MEMBERSHIP

5.1 Membership of the association shall be limited to the developer in his capacity as such (and represented by not more than 2 nominees) until all the erven are sold and transferred and to any other person who is in terms of the Deeds Registry’s Act reflected in the records of the Deeds Office concerned as the registered owner of an erf.

5.2 Where any erf is owned by more than one person, all the registered owners of that erf shall together be deemed to be one member of the association and have the rights and obligations of one member of the association provided however, that all co-owners of any erf shall be jointly and severally liable for the due performance of any obligation of a member to the association.

5.3 When a member becomes the registered owner of an erf he shall ipso facto become a member of the association and when he ceases to be the owner of an erf, he shall ipso facto cease to be a member of the association.

5.4 No member shall let or otherwise part with occupation of his erf whether temporarily or otherwise, unless he has agreed with a proposed occupier of such erf as a stipulatio alteri in favour of the association that such occupier shall be bound by all the terms and conditions hereof.

5.5 A registered owner of any erf may not resign as a member of the association.

5.6 All the rights and obligations of a member shall not be transferable and every member shall:-

  • 5.6.1 further to the best of his ability the objects and interests of the association;
  • 5.6.2 observe all rules made by the association or the trustees; provided that nothing contained in this constitution shall prevent a member from ceding his rights in terms of this constitution as security to the mortgage of that member’s erf.

5.7 The fact that a member of the association is also a member of a body corporate of a sectional title or any mini sub-development within the Estate shall in no way affect such member’s liability to the association for levies or any other obligation to the association. The association shall, however, without prejudice to its rights against individual members be entitled, for the purposes of convenience to render an account to a body corporate for the individual obligations of its members to the association.

6 LEVIES

6.1 The trustees may from time to time impose levies upon the members for the purpose of meeting all the expenses which the association has incurred, or to which the trustees reasonably anticipate the association will be put in the attainment of its objects and pursuit of its business.

6.2 Any levy shall be borne by each member in direct proportion to the number of erven owned by each member.

6.3 Per the definition clause 1.1.7 of an erf, unit freehold of sectional title, the levy raised over the erf will be equal to the development potential of the units that may be erected on the erf as determined by the Town Planning Ordinance enacted by the Local Authority.

6.4 Levies will be raised within TWO calendar months of the owner becoming the registered title holder of an erf.

6.5 The trustees shall not less than 30 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 by such member an estimate in reasonable detail of the amount which shall be required by the association 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 trustees may include in such estimate an amount to be held in reserve to meet anticipated expenditure not of an annual nature.

6.6 Each notice to each member shall specify the contribution payable by that member to such expenses and reserve fund.

6.7 Each annual levy shall be due at the commencement of every financial year. Where a member is deemed to be in “good standing” the annual levy may be paid in equal monthly instalments, due in advance on the first day of each and every month of each financial year. Amended 27.03.2013

  • 6.7.1 A member in “good standing”, for the purposes of clause 6.7 only, shall be a member who has discharged all of his financial obligations to the Association as at the end of the preceeding financial year, or a member who has made adequate arrangements to meet any fees due, owing and payable to the Association. Amended 27.03.2013

6.8 In the event of the trustees for any reason whatsoever failing to prepare and serve the estimate referred to above timeously, every member shall until service of such estimate as aforesaid continue to pay the levy previously imposed and shall, after such service pay such levy as may be specified in notice in respect of the new levy.

6.9 The trustees may from time to time impose special levies upon members in respect of all such expenses which were not included in the trustees’ original estimates.

6.10 The trustees shall be empowered in addition to such other rights as the association may have in law to charge interest on arrear levies and other fees and charges raised by the Association at a rate not exceeding the prime rate charged by BOE Bank Limited now operating as Nedbank Limited. Amended 27.03.2013

  • 6.10.1 Where arrear levies and or other fees and charges raised by the Association, are outstanding in excess of the number of days specified in the credit control policy as approved by the Trustees from time to time, the debt may be handed over for legal collection, where this occurs the debtor shall be indebted to the Association for; Amended 27.03.2013
  • 6.10.1.1 The amount due and payable to the Association at the time of handover and;
  • 6.10.1.2 Any legal or collection costs attracted by such debt and;
  • 6.10.1.3 At the discretion of the Trustees, levies and basic service charges based on the tariffs as at the time of legal handover, for the balance of the Association’s financial year in which legal handover occurs.

6.11 Any fees or charges due by a member shall be a debt due by him to the Association. Notwithstanding that a member ceases to be such, the association shall have the right to recover arrear levies and interest from him. No levies or interest paid by a member shall under any circumstances be refundable by the association to such person upon such person ceasing to be a member. Further, a member on ceasing to be such shall have no claims whatsoever on any other monies held by the association. A member’s successor in title to an erf shall be liable as from the date upon which he becomes a member pursuant to the transfer of such erf, to pay the levy and interest due thereon attributable to that erf. Amended 27.03.2013

6.12 The developer shall be liable for levies on the same basis as any other member.

6.13 The trustees may enter into an agreement or agreements with the developer for the provision of a capital sum and/or equipment to the association in lieu of levies.

6.14 No transfer of an erf shall be registered unless a certificate has been issued by the Association that

  • 6.14.1 All levies fees and charges due to it in respect of the erf have been paid. Amended 27.03.2013
  • 6.14.2 The purchaser has paid three monthly levies, basic service charges, the Levy Stabilisation Fund charge and any other amounts required for levy consent. Amended 27.03.2013

7 RULES

7.1 Subject to any restriction imposed or direction given at a general meeting of the association, the trustees may from time to time make rules in regard to the enforcement of the objects of the association set out in paragraph 3 hereof. To the extent that any rule made in terms of this constitution conflicts with any rule of any body corporate of a development within the township, the rule made in terms of this constitution shall prevail.

7.2 For the enforcement of any of the rules made by the trustees in terms hereof, the trustees “or their nominated representative “may:-

7.2.1 give notice of the member concerned requiring him to remedy any breach of the rules within a reasonable time;

  • 7.2.2 to take or cause to be taken such steps as they may consider necessary to remedy the breach of the rule of which the member may be guilty and debit the costs of doing so to the member concerned which amount shall be deemed to be a debt owing by the member concerned to the association;
  • 7.2.3 Impose a system of fines/or other penalties. Where the non-compliance of any rule defined within the Municipal Fine structure, such fine shall be no greater than the existing Municipal Fines for such non-compliance. Where the non-compliance does not fall within the Municipal Fine Structure, the amounts of such fines shall be determined by the Trustees but shall not exceed R5 000 without the resolution of the full board of Trustees.
  • 7.2.4 impose a system of fines and/or other penalties. The amounts of such fines shall be reviewed and confirmed at each annual general meeting of the association.
  • 7.2.5 and/or with the written permission of the full board of trustees take such other action including proceedings in court as they may deem fit and defend any action taken by any member or any other person.

7.3 In the event of the trustees instituting any legal proceedings against any member or resident within the Estate for the enforcement of any of the rights of the association in terms hereof, the association shall be entitled to recover all legal costs so incurred from the member or resident concerned, including costs calculated as between attorney and own client, collection commissions, expenses and charges incurred by the association in obtaining the recovery of arrear levies, or any other arrear amounts due and owing by such member to the association , or in enforcing compliance with these rules, the conduct rules or the act.

7.4 In the event of any breach of the rules by the members of any member’s household or his guests or lessees, such breach shall be deemed to have been committed by the member himself, but without  prejudice to the aforegoing, the trustees may take or cause to be taken such steps against the person actually committing the breach as they in their discretion may deem fit.

7.5 In the event of any member disputing the fact that he has committed a breach of any of the rules, a committee of three (3) trustees appointed 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.

7.6 Any fine imposed upon any member shall be deemed to be a debt due by the member to the association and shall be recoverable by ordinary civil process.

7.7 Notwithstanding anything to the contrary herein contained, the trustees may in the name of the association 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.

7.8 The association may in general meeting itself make any rules which the trustees may make and may in general meeting vary or modify any rules made by it or by the trustees from time to time.

8 TRUSTEES

8.1 There shall be a Board of Trustees of the association which shall consist of not less than five (5) nor more than ten (10) members, the actual number of Trustee each year shall be recommended by the Chairman of the Association, at the Annual General Meeting of the Association. Amended 27.03.2013

8.2 A trustee shall be an individual but need not himself be a member of the Association. A trustee, 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.

8.3 The first trustees shall, on the formation of the Association, be appointed by the developer.

8.4 During the development period at least two (2) of the trustees shall be nominees of the developer.

8.5 Trustees, other than the initial trustees, shall be elected by the members in general meeting. For a period of temporary absence by a trustee, the trustees may appoint an alternate trustee. Amended 27.03.2013

8.6 Nominations for trustees shall be made by not less than four (4) members in good standing, shall be in writing, bearing the nominee’s acceptance and lodged with the trustees not less than thirty (30) days prior to the general meeting at which an election for trustees is to take place. Amended 27.03.2013

9 REMOVAL AND ROTATION OF TRUSTEES

9.1 Save as set out in clause 9.3, and save for the trustees appointed by the developer in terms of 8.3, each trustee shall continue to hold office from the date of his appointment until the end of the annual general meeting next following his appointment, at which meeting each trustee shall be deemed to have retired from office but will be eligible for re-election to the Board of Trustees at such meeting.

9.2 A trustee shall be deemed to have vacated his office upon:-

  • 9.2.1 his having become disqualified to act as a director in terms of the provisions of the Act;
  • 9.2.2 his being removed from office as provided in Section 220 of the Act;
  • 9.2.3 in the event of his being a member of the association, his being disentitled to exercise a vote in terms of clause 20.2 below.

9.3 Upon any vacancy occurring in the Board of Trustees 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 Trustees, provided, however, that, if the trustee who vacates his office as aforesaid was a nominee of the developer, the developer shall be entitled to nominate a trustee in his stead.

10 CHAIRMAN AND VICE CHAIRMAN

10.1 The trustees shall within 14 days after each annual general meeting appoint from their number a chairman and vice chairman, who shall hold their respective offices until the end of the next annual general meeting, provided that the office of chairman or vice chairman shall ipso facto be vacated by a trustee holding such office upon his ceasing to be a trustee for any reason. No one trustee 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 Trustees shall immediately appoint one of their number as replacement in such office. During the development period the chairman shall be elected by the nominees of the developer.

10.2 Except as otherwise provided, the chairman shall preside at all meetings of the trustees and at all general meetings of members and, in the event of his not being present within 5 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.

11 TRUSTEE’S EXPENSES

Trustees shall be entitled to recover all reasonable and bona fide expenses incurred by them respectively in or about the performance of their duties as trustees. Save as aforesaid, trustees shall not be entitled to any remuneration for the performance of their duties in terms hereof.

12 POWERS OF TRUSTEES

12.1 Subject to the express provisions of these presents, the trustees shall manage and control the business and affairs of the association, 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 association and do all such acts on behalf of the association as may be exercised and done by the association and as are not by the Act or by these presents required to be exercised or done by the association in general meetings, subject however, to such rules as may be made by the trustees from time to time.

12.2 Save as specifically provided in these presents, the trustees shall at all times have the right to engage on behalf of the association the services of accountants, auditors, attorneys, advocates, architects, engineers, a managing agent and any other professional firm or person or other employees whatsoever for any reasons deemed necessary by the trustees and on such terms as the trustees shall decide.

12.3 The trustees shall further have power to make rules as provided for herein.

12.4 The Board of Trustees shall have the right to co-opt onto the board any person or persons chosen by it. A co-opted trustee need not necessarily be a member of the association. A co-opted trustee shall hold office until the end of the next annual general meeting after his co-option when he shall retire but shall be eligible for election as a trustee, or in the event of his not being elected shall against be eligible for co-operation by the Board of Trustees.

12.5 The trustees shall be entitled 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, with further power to vary or revoke such appointments and delegations as the trustees may from time to time deem necessary.

13 PROCEEDINGS OF TRUSTEES

13.1 The trustees may on 7 days written notice given by any one trustee to the other trustees, meet together for the dispatch of business, adjourn and otherwise regulate their meetings as they think fit, subject to any provisions of these presents.

13.2 The quorum necessary for the holding of any meetings of the trustees shall be a majority present personally; provided however that, during the development period, the presence of at least one nominee of the developer shall be necessary at all meetings of trustees in order to form a quorum. Any resolution of the Board of Trustees shall be carried on a simple majority of all votes cast. In the case of an equality of votes for and against any resolution, the resolution shall be deemed to have been defeated.

13.3 The trustees shall cause minutes to be kept of every trustees’ meeting, which minutes shall, without undue delay after the meeting has closed, be reduced to writing and certified correct by the chairman. All minutes of trustees’ meetings shall, after certification, be placed in a trustee’s minute book to be kept in accordance with the provisions of the law relating to the keeping of minutes of meetings of directors of companies. The trustees’ minute book shall be open for inspection at all reasonable times by any trustee, the auditors, the members and the managing agent.

13.4 Save as provided in these presents, the proceedings of any trustees’ meeting shall be conducted in such reasonable manner and form as the chairman of the meeting shall decide.

13.5 A resolution signed by all the trustees shall be valid in all respects as if it had been duly passed at a meeting of the Board of Trustees.

14 GENERAL MEETINGS OF THE ASSOCIATION

14.1 The association shall within six (6) months after the end of each financial year hold a general meeting as its annual general meeting in addition to any other general meetings during that year, and shall specify the meeting as such in the notices in terms of clause 15 herein, calling the meeting.

14.2 Such annual general meeting shall be held at such time and place as the trustees shall decide from time to time.

14.3 All general meetings other than annual general meetings shall be called extraordinary general meetings.

14.4 The trustees may, whenever they think fit, convene an extraordinary general meeting.

15 NOTICES OF MEETINGS

15.1 An annual general meeting and a meeting called for the passing of a special resolution, shall be called by sixty (60) clear days’ notice in writing at least, and an extraordinary general meeting, other than one called for the passing of a special resolution, shall be called for by fourteen (14) clear days’ notice in writing at the least. In each case the notice shall be exclusive of the day on which it is given, and shall specify the place, the day and hour of the meeting. Amended 27.03.2013

15.2 The agenda for an Annual General Meeting and a meeting called for the passing of special business shall be served in writing, twenty one (21) clear days prior to the meeting. Amended 27.03.2013

15.3 In the case of special business, in addition to any other requirements contained in these presents, the general nature of that business, and in the case of a special resolution, the terms and effect of the resolution and the reasons for it shall be given in the manner hereinafter mentioned or in such other manner, if any, as may be prescribed by the trustees to such persons as are under these presents entitled to receive such notices from the association.

15.4 A general meeting of the association shall notwithstanding that it is called by shorter notice than that specified in these presents be deemed to have been duly called if it is so agreed:-

  • 15.4.1 in the case of a meeting called as the annual general meeting by all the members entitled to attend and vote thereat; and
  • 15.4.2 in the case of an extraordinary general meeting, by a majority in number of the members having a right to attend and vote at the meeting, being a majority together holding not less than 95% of the total voting rights of all members.

15.5 Insofar as special notice may be required of a resolution, whether by any provision of the Act or these presents, then the provisions of Section 186 of the Act shall apply.

15.6 The association shall comply with the provisions of Section 185 of the Act as to giving of notices and circulating statements on the requisition of members.

15.7 The accidental omission to give notice of a meeting or of any resolution, or to give any other notification, or present any document required to be given or sent in terms of these presents, or in terms of the Act, or the non-receipt of any such notice, notification or document by any member or other person entitled to receive the same, shall not invalidate the proceedings at, or any resolution passed at any meeting.

16 QUORUM

16.1 No business shall be transacted at any general meeting unless a quorum is present when the meeting proceeds to business. During the development period, the quorum necessary for the holding of any general meeting shall be such of the members entitled to vote as together for the time being represent the votes of the developer, and 15% of votes in number from all other members of the association entitled to vote for the time being. After the development period, the quorum shall be such of the members entitled to vote as together for the time being represent the votes of 15% in number of all members entitled to vote for the time being.

16.2 If within half an hour from the time appointed for the holding of a general meeting a quorum is not present, the meeting shall stand adjourned to the same day in the next week at the same place and time or at such other place as the chairman of the meeting shall appoint. If at the adjourned meeting a quorum is not present within half an hour from the time appointed for holding the meeting, the members present shall be a quorum.

17 AGENDA AT MEETINGS

17.1 In addition to any other matters required by the Act or these presents to be dealt with at an annual general meeting, the following matters shall be dealt with at every annual general meeting:-

  • 17.1.1 the consideration of the chairman’s report;
  • 17.1.2 the election of trustees;
  • 17.1.3 the consideration of any other matters related at the meeting, including any resolutions proposed for adoption by such meeting, and the voting upon any such resolutions;
  • 17.1.4 the consideration of the accounts of the association for the preceding financial year;
  • 17.1.5 the consideration of the report of the auditors, the fixing of remuneration for the auditors and the appointment of the auditors for the ensuing year.

17.2 No business shall be dealt with at any general meeting unless written notice has been given to the trustees not less than thirty (30) days before such meeting, in the form provided for is terms of clause 15.3 above by the person proposing to raise such business of his intention to do so; provided however, that the chairman may on ordinary resolution of the meeting relax this condition. Amended 27.03.2013

18 PROCEDURE AT GENERAL MEETINGS

The chairman may, with the consent of any general meeting at which a quorum is present and shall if so, directed by the meeting, adjourn a meeting from time to time and place to place. No business shall be transacted at any adjourned meeting other than business which could have been transacted at the meeting from which the adjournment took place. Whenever a meeting is adjourned for 10 days or more, notice of the adjourned meeting shall be given in the same manner as of an original meeting. Save as aforesaid, the members shall not be entitled to any notice of adjournment or of the business to be transacted at an adjourned meeting.

19 PROXIES

19.1 A member may be represented at a general meeting by a proxy, who need not be a member of the association. The instrument appointing a proxy shall be in writing signed by the member concerned or his agent, duly authorised in writing, but need not be in any particular form provided that, where a member is more than one person, a majority of those persons shall sign the instrument appointing on proxy on such member’s behalf. Amended 27.03.2013

19.2 The instrument appointing a proxy and the power of attorney or any other authority under which it is signed shall be tabled at the commencement of the meeting at which the person named in the instrument proposes to vote. No instrument appointing a proxy shall be valid after the expiration of 12 months from the date of its execution. Amended 25.11.2015

19.3 A vote given in accordance with the terms of a proxy shall be valid notwithstanding the previous death of the principal or revocation of the proxy, provided that no intimation in writing of the death or revocation had been received by the trustees at any time before a vote is taken in respect of which the proxy exercises such vote. Amended 25.11.2015

20 REPRESENTATION AT GENERAL MEETINGS

20.1 At every general meeting:-

  • 20.1.1 every member, including the developer, in person or by proxy, is entitled to vote. The value of the vote shall be in proportion to the number of erven owned by the member; Amendment 25.11.2015 according to SGM meeting minutes held 25 November 2015 Resolution 9 on page 5 was passed unanimously due to Durban high court ruling 22.07.2015 apropos Joint Residential Representative updated 11.03.2020
  • 20.1.2 if an erf is registered in the name of more than one person, then all such co-owners shall share the voting proportion attached to the erf or erven as described in clause 20.1.1.
  • 20.1.3 members who are members by virtue of ownership of a unit in a sectional title development or through ownership of a mini-sub “or private residential block shall exercise their votes, raise issues or table resolutions per clause 20.1.1. Amendment 25.11.2015 according to SGM meeting minutes held 25 November 2015 Resolution 9 on page 5 was passed unanimously due to Durban high court ruling 22.07.2015 apropos Joint Residential Representative updated 11.03.2020

20.2 Save as expressly provided for in these presents, no person other than a member duly registered and who shall have paid every levy and other sum, if any, which shall be due and payable to the Association in respect of or arising out of his membership and who is not under suspension, shall be entitled to be present or to vote on any question, either personally or by proxy at any general meeting. Amended 25.11.2015

20.3 At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded by the chairman and, unless a poll is so demanded, a declaration by the chairman that a resolution has, on a show of hands, been carried or carried unanimously or by a particular majority or negated, and an entry to that effect in the book containing the minutes of the proceedings of the Association, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against such resolution. The demand for a poll may be withdrawn.

20.4 If a poll is duly demanded it shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. Scrutineers shall be elected to determine the result of the poll. In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place, or at which the poll is demanded, shall be entitled to a second or casting vote.

20.5 A poll demanded on the election of a chairman or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chairman of the meeting directs. The demand for a poll shall not prevent the continuation of a meeting for the transaction of any business other than the question upon which the poll has been demanded.

20.6 Every resolution and every amended resolution proposed for adoption by a general meeting shall be seconded at the meeting and, if not so seconded, shall be deemed not to have been proposed.

20.7 An ordinary resolution (that is a resolution other than a special resolution) or the amendment of any ordinary resolution shall be carried on a simple majority of all votes cast. In the case of equality of votes for and against any resolution, the resolution shall be deemed to have been defeated.

20.8 Unless any member present in person or by proxy at a general meeting shall, before the closure of the meeting, have objected to any declaration made by the chairman of the meeting as to the result of any voting at the meeting, whether by show of hands or otherwise, or to the propriety or validity of the procedure at such meeting, such declaration by the chairman shall be deemed to be a true and correct statement of the voting, and the meeting shall in all respects be deemed to have been properly and validly constituted and conducted. An entry in the minutes to the effect that a motion has been carried or lost, with or without a record of the number of votes recorded in favour of or against such motion, shall be conclusive evidence of the votes so recorded. Amended 25.11.2015

21 ACCOUNTS

21.1 The accounts and books of the association shall be open to inspection by members at all reasonable times during business hours.

21.2 Once in each financial year the accounts of the association shall be examined, and the correctness thereof ascertained by auditors. The duties of the auditors shall be regulated in accordance with Chapter 10 of the Act.

22 SERVICE OF NOTICES

A notice may be served by the Association by hand delivery, pre-paid registered post or electronic mail upon any member at the address of any unit owned by him unless the member shall have notified the association of another address for service of notice. Any notice served shall be deemed to have been served on the day but one following that on which the notice was sent. Amended 27.03.2013

23 INDEMNITY

Every trustee, servant, agent and employee of the association and any managing agent, his employees, nominees or invitees, shall be indemnified by the association against all costs, losses and expenses (including travelling expenses) which such person or persons may incur or become liable for by reason of any contract entered into or any act or deed done by such person or persons in the discharge of their respective duties, including in the case of a trustee, his duties as chairman or vice chairman. Without prejudice to the generality of the aforegoing, the association shall specifically indemnify every such person against all losses of whatsoever nature incurred arising out of any bona fide act, deed or letter done or written by him jointly or severally in connection with the discharge of his duties.

24 AMENDMENT OF THIS CONSTITUTION, FORMATION SECTION 21 COMPANY

24.1 This constitution may be amended by resolution of a members’ meeting passed by a majority of not less than 75% of the votes cast.

24.2 On the basis of a resolution passed in terms of clause 24.1 the association may convert itself to a Section 21 company, the Articles of Association of which shall, mutatis mutandis be the same as the constitution of the association.

25 MERGER

25.1 The association may merge with any other body with similar objects, by resolution of a members’ meeting.

25.2 In this event, the association’s net assets after discharge of its liabilities, together with its rights and obligations under this constitution and under the conditions of title of units in the association area will vest in the merged entity.

26 DISSOLUTION

26.1 The association may dissolve itself by resolution passed by a majority of not less than 75% of the votes cast at a members’ meeting.

26.2 In this event:-

  • 26.2.1 the trustees will act as liquidators.
  • 26.2.2 the association’s net assets after discharge of its liabilities will be applied to repay the most recent levies paid by members and any balance after all levies have been repaid will be distributed in the liquidator’s discretion to one or more public charities.

27 DEVELOPMENTS WITHIN THE TOWNSHIP AREA

Should any owner of an erf wish to develop the erf as a sectional title or mini sub-development such owner shall submit to the association for approval the proposed house rules to be made applicable to the sectional title or  mini sub-development and such house rules shall not be adopted for such development until the association’s approval has been given in writing.

SOCIAL RULES AND REGULATIONS – ANIMALS

1. Definitions

In these rules unless inconsistent with the context –

  • “Poultry” means and includes fowls, ducks, geese, turkeys, guinea fowl, pigeons and parrots;
  • “Animal” means and includes any domesticated pet, cat, dog, or any of any other animal reptile or bird;
  • “Dog” means the male or female of this species;
  • “Ferocious or vicious” shall mean animal, bird or reptile which has bitten or attempted to bite a person or animal or damages another persons’ property other than in defense of itself or its custodian.;
  • “Nuisance” unless otherwise provided for in these bylaws, means any condition, thing, act or sound which is offensive or injurious or which tends to prejudice the safety, good order, peace or health or the rights or reasonable comfort, convenience, peace or quiet of the general public within the area;
  • “Premises” shall be any building together with the land on which the same is situated and adjoining land or building used in connection therewith or any land without buildings thereon;
  • “Stray or ownerless” any dog or animal not wearing a badge or other means of identification whereby the owner can be traced and appears to be ownerless, shall be deemed to be ownerless.
  • “Valid rabies certificate” means valid rabies, inoculation certificate, to mean a certificate of inoculation, issued by a registered veterinarian within the previous two-year period;
  • “Veterinarian” means a person registered as such under the veterinary and Para-Veterinary Professions Act, Act No. 29 of 1982.

2. Association permission to keep an animal

2.1. No owner or occupier may keep any pet or other animal, bird or reptile on any premises with Seaward Estates without the written consent of the Association, upon submission of such application proof of a valid rabies certificate shall be required in respect of dogs.

With the proviso that where such premises is zoned Sectional Title housing written permission from the body corporate, of such Sectional Title development shall first be obtained;

2.2. Consent by the Association may be given subjected to conditions which may be altered or withdrawn at any stage by the Association.

2.3. Should consent from the Association to keep an animal be revoked, the owner of such animal, upon receiving written notice from the Association, shall within the time stipulated in such notice, remove such animal from the Estate.

2.4. As of the date of promulgation of the SEMHOA Rules, new applications for permission to house animals, shall only be considered for a maximum of (2) two animals per unit, with the proviso that

  • 2.4.1. Animals with a body weight in excess of 20 kg each, shall not be permitted with the proviso that.
  • 2.4.1.1. Any owner or occupier who has received permission, prior to the promulgation of the SEMHOA Rules, to keep more than (2) dogs, or dogs with a body weight exceeding 20 kg shall be permitted to keep their pet but shall not be permitted to replace such pet upon it’s death unless clause 2.4.1 above is complied with.
  • 2.4.1.2. Any occupier who is NOT an owner, who has received permission to keep dogs which are not in compliance with sub paragraph 2.4.1. above, shall be permitted to keep their dogs until the expiration of their lease and shall require to dispose of their dogs should they wish to renew their lease.

2.5. Any owner or occupier who has received permission to keep an animal, shall ensure that such pet is confined within the property by means of adequate fencing which is accordance with the Association rules.

2.6. A dog for which no valid rabies inoculation certificate is held shall not be permitted to be kept on the Estate.

3. Prohibited Animals

No person shall keep upon any premises within the boundaries of Seaward Estates.

  • 3.1. any animal, bird or reptile which is deemed dangerous, ferocious or vicious.
  • 3.2. cattle or any horse, mule, ass or other draught animal or any pig, sheep or goat or any form of live poultry;
  • 3.3. any wild undomesticated animal, bird or reptile.
  • 3.4. any hive or swarm of bees.

4. No person shall keep on any premises within the Seaward Estates any animal or reptile (whether male or female)

  • which is ferocious or vicious.
  • 4.2. which has a propensity to rush at any person, animal or vehicle, or which is generally a nuisance to the public on any premises or that are not properly surrounded by a fence of such a nature as to ensure that such dog is confined to such unless such dog is kept on a leash;
  • 4.3. In respect of dogs, any bitch in season unless she is kept under proper control so as to prevent her from being a nuisance to the neighbours or the general public. The Association may by notice in writing direct to the owner or person in control to Animal Registration Form_v2 Page 3 June 2019 Version 2 remove such bitch to a place in which suitable accommodation can be provided for the housing of such bitch and at the owner’s expense and shall require it to be kept for such a period until she is out of season;
  • 4.4. Any dog or animal which by reason of its barking, yelping, howling or whining or other sound, which creates a nuisance or disturbs the general public’s peace.
  • 4.5. Which bites or savages any person unless it can be proved that such bite or savaging was in reasonable defense of the owner or person responsible for the keeping of the dog, or their dependents or property, and that the person bitten seriously threatened the owner, property or dependents of the owner or person keeping such animal;
  • 4.6. attacks, runs at or jumps at any person, unless it can be proved that such attack, running or jumping was in reasonable defense of the owner or person responsible for the keeping of the animal, or their dependents or property, and that the person attacked, run at or jumped at seriously threatened

5. Without in any way detracting from or diminishing in the liability of the owner of or the person keeping any animals for a breach of these rules:

  • 5.1. the owner of any premises if he resides on such premises shall be deemed to be keeping an animal on such premises;
  • 5.2. if the owner of the premises does not reside on the premises any person over the age of eighteen years who resides on such premises shall be deemed to be keeping an animal on such premises;
  • 5.3. in the case of any non compliance in terms of these rules it shall be competent for the true owner of the dog or animal in question to be found in contravention of the rules or alternatively, the person keeping or deemed to be keeping the dog in question to be served with a financial penalty therefore.

6. The Association may, in addition to imposing penalties against the owner, call upon an authorised officer to seize any dog or animal which is vicious or dangerous or which is creating a disturbance by barking or otherwise.

7. Any animal which is found at large and unattended on Seward Estates, or in a diseased state and apparently ownerless, may be seized by an officer empowered in terms of Kwa Dukuza Municipal By Laws and impounded and if found dangerous, vicious or diseased, may be destroyed in terms section 5 of the Animal Protection Act, (Act No. 71 of 1962).

8. No person shall allow an animal, being his property or in his charge to be in any common area within Seaward Estates, unless it is on a leash or otherwise controlled by an adult, to ensure that it will not in any circumstances endanger the safety or any person or traffic making use of such common area.

9. No person shall use or cause or allow any premises in the Estate to be used for the accommodation of animals for reward.

10. No person, shall by any means willfully frighten, tease or enrage any animal.

11. the owner or person in charge of any animal which has died shall be responsible for its proper burial, at such place as may be approved by the Municipality.

12. No person shall keep any animal or bird, other than a domestic pet or small bird in a cage, in any sleeping or living apartment in any dwelling.

13. No person shall permit any dog or other animal, of which he is the owner or in charge, to rush at pedestrians, motorcars or cyclists or other road users, or permit such animal to interfere with the comfort or safety of any member of the public.

14. Offences and penalties:

Any person who contravenes any provision of these rules or who fails to comply with the requirements thereof shall be guilty of a non-compliance shall be liable to the penalties determined by the Association.

  • 14.1. Any person who has on his premises within Seaward Estates, any animal or bird which, by reason of continued barking, yelping, howling, crowing, or making other noises, disturbs the public peace or is a source of nuisance to the neighbourhood, after the expiration of a reasonable time to be stipulated in a notice signed by the Association and served upon him, requiring him to abate such disturbance or nuisance, shall be guilty of a non compliance of the rules and shall be liable to the penalty prescribed.
  • 14.2. If any animal is believed to be fall within clause 4 and the sub clauses pertaining thereto, or where notice has been served in terms of 14.1 above and has not been complied with, it shall be competent for the Association, by written notice to revoke permission for the animal to be housed on Seaward Estates. Should such animal not be removed within the time stipulated in such notice, the Association may at its sole discretion:
  • 14.2.1. In the case of a registered member of the Association, levy a financial penalty prescribed.
  • 14.2.2. In the case of a person renting accommodation the Association shall have the right to demand that the lease agreement be summarily cancelled and that such occupier is evicted from the Estate.

SOCIAL RULES AND REGULATIONS – FURNITURE

1. No furniture deliveries using vehicles larger than 3 tons shall be permitted within the Estate. Vehicles larger than three tons shall require to park in the areas designated for the off‐loading of furniture deliveries and a shuttle service using a fixed axle vehicle shall be required.

2. Vehicles offloading furniture shall be parked in such a manner that there is NO obstruction to the entrance and exit gates, or the Main Road.

3. No furniture deliveries or collection will be permitted to enter the Estate before 07h00 on a weekday or before 09h00 on a weekend or public holiday. All deliveries shall require to be completed before 17h00 on any day.

4. No delivery vehicles shall be permitted to stay overnight within the Estate.

5. The resident shall be responsible for any costs incurred as a result of damages to any of the services on the Estate which may occur during the delivery or collection of furniture; and it shall be incumbent upon them to claim any such damage claims back from their contractors.

6. SEMHOA shall not accept any liability for claims arising from demurrage or delays, or any other reason, where these rules are enforced.

7. It is incumbent upon the resident to dispose of any boxes or packaging materials, these items may NOT be included in household or garden refuse for collection by the service provider. These items may be disposed of at the Dolphin Coast Waste Management site at Shakashead (032 946 0857.)

Rules for the holding of private functions at private residences within Seaward Estates

1. In the event of a private function to be held at any private residence within Seaward Estate and that will be attended by a maximum of 10 (Ten) persons (whether it be residents or non-residents of Seaward Estates) will not require a written application for consent for the holding of such a function to the Seaward Estate Management on condition that the function will not involve the use of public announcement systems and/or the use of a DJ and that it will be subject to the SEMHOA Rules applicable to the holding of such a function and inclusive of the Rules pertaining to nuisance and parking.

2. In the event of a function to be held at a private residence within Seaward Estates that will be attended by more than 10 (Ten) persons (irrespective of the fact whether it will consist of resident or non-residents of Seaward Estates), the following conditions will be applicable :

  • 2.1. The Applicant, who must be the owner of the property concerned or the legal occupier thereof, will have to make a written application via the Estate Management to SEMHOA at least 21 (twenty-one) days prior to the holding of such function for written consent to have such a function at the said premises;
  • 2.2. The written application will clearly indicate the following :
  • 2.2.1. Full details of the nature and purpose of the function:
  • 2.2.2. The exact number of people that will be attending the function;
  • 2.2.3. The number of toilets available in the unit (To be noted that one such facility is required for every ten persons attending);
  • 2.2.4. The exact amount of vehicles that will require parking on the premises concerned as well as an undertaking to provide Estate Management with the registration number of each vehicle that will have to enter Seaward Estates for this purpose at least 24 (twenty-four) hours prior to the date of the function;
  • 2.2.5. In the event of the Applicant not being the owner of the said property, that the written consent to the function being held on the property by the rightful owner thereof had been obtained and that it is attached to the written application;
  • 2.2.6. That a signed consent form (to be procured from Management Offices upon request) had been obtained from all adjoining property owners or residents beforehand and that the latter are attached to the written application;
  • 2.2.7. An undertaking that no Public Announcement Systems or any DJ will be utilized during the function;
  • 2.2.8. An undertaking that a detailed guest list, indicating the names and surnames of each and every guest that will be attending the function, will be provided to Estate Management in writing at least 24 (twenty-four) hours prior to the holding of the function;
  • 2.2.9. An undertaking that all guests that are non-residents of Seaward Estates will be made aware of all the relevant SEMHOA Rules applicable to the holding of such a function as well as other rules that the guests will have to abide by, such as the general speed limit to be maintained within the Estate, rules pertaining to parking, etc, by the Applicant prior to the holding of the function.
  • 2.2.10. In the event of the Applicant failing to provide Estate Management with said details regarding a guest list and/or a list of the registration numbers of vehicles that will need to enter the Estate for purposes of attending the function, Estate Management will have the right to refuse such a person or persons and/or vehicle or vehicles access to the Estate;
  • 2.2.11. In the event of a function to be held with more than 10 (ten) guests attending Estate Management will have the right to ensure that only the guests on the guest list provided by the Applicant in writing and only vehicles of which the registration numbers were supplied in writing beforehand to Estate Management by the Applicant, be allowed to enter the Estate. The driver of such a vehicle will be handed a “Functions) laminated card upon entering the Estate by Security and to be kept within the vehicle at all relevant times. Upon wishing to exit the Estate after the function the driver will hand the “Functions” card back to Security who will then open the exit gate for the vehicle to leave the Estate.
  • 2.3. Noise levels during all functions held a private residence will be maintained at a minimum so as not to cause a disturbance to immediate neighbors. Where noise levels do cause a disturbance to any neighbor at any time during the function and it is reported to Estate Management or Security and where the person responsible for the holding of the function is requested by the latter to curtail such noise, this shall be done immediately.
  • 2.4. The Applicant will at all times be responsible to ensure that all guests act in a becoming manner and in accordance with the Conduct Rules of SEMHOA. In the event of a breach of the Conduct Rules the Applicant will be held responsible for the payment of any fine to be imposed by SEMHOA on a guest to the function.
  • 2.5. Any breach of the above mentioned Rules will result in a financial penalty of no less than 2000-00 (Two Thousand Rand) and not more than R25 000-00 (Twenty-five Thousand Rand) to be adjudicated by the Trustee Legal and shall depend on the severity of the non-compliance.
I hereby undertake that
  • No Public Announcement system or any DJ will be utilized.
  • A detailed guest list and list of registration numbers of my guests vehicles will be handed to Estate Management at least 24 hours prior to the function.
  • All guests will be made aware of the SEMHOA rules and I ensure that they abide by the rules.
  • To keep noise levels to a minimum and will curtail such noise if requested to do so by Estate Management or Security.
By my signature hereon I acknowledge that I shall be responsible for any fines or penalties imposed as a consequence of my guests failing to comply with the rules. I am aware of the penalties which may be imposed.

1 DEFINITIONS

1.1 In this document, the following words and phrases shall, unless the context otherwise requires, have
the meanings hereinafter assigned to them:-

  •   1.1.1 “the Act” means the Companies Act, 71 of 2008 ; Amended 27.03.2013
  •   1.1.2 “the association” means the Seaward Master Home Owners Association (SEMHOA); Amended 27.03.2013
  •   1.1.3 “auditors” means the auditors of the association;
  •   1.1.4 “chairman” means the chairman of the Board of Trustees;
  •   1.1.5 “the developer” means the Seaward Development (Pty.) Limited or nominee and its successors-in-title;
  •   1.1.6 “development period” means the period from the establishment of the township and until all the erven defined herein have been sold and transferred by the township owner;
  •   1.1.7 “erf” means an erf in the township, a sectional title unit in the township or a mini subdivision of an erf in the township. In respect of any erf upon which two or more housing units may be built each of such erven shall be regarded as consisting of a number of separate erven equivalent to the number of housing units permitted to be built thereon in terms of the town planning scheme applicable to the estate;
  •   1.1.8 “Association fees and charges” shall include but not limited to, Amended 27.03.2013
  • 1.1.8.1 any levy, special levy, as allowed for in clause 6,
  • 1.1.8.2 basic and consumption charges for sewerage and water as prescribed by the municipal tariffs,
  • 1.1.8.3 any financial penalty as allowed for in terms of clause 7.2,
  • 1.1.8.4 interest on unpaid fees as prescribed in clause 6.10
  • 1.1.8.5 legal and collection fees as prescribed;
  • 1.1.8.6 any fee for any service rendered at the specific request of an owner or emergency work carried out to prevent damage, loss or injury by the Association for and on behalf.
  • 1.1.9 “in writing” means written, printed or lithographed or partly one and partly another and other modes of representing or producing words in a visible form;
  • 1.1.10 “managing agent” means any person or body appointed by the association as an independent contractor to undertake any of the functions of the association;
  • 1.1.11 “the representative member” shall mean the person elected to represent the units in asectional title development.
  • 1.1.12 “the site development guidelines” means the development guidelines set out in the document prepared by Hamilton Architects (Pty) Limited entitled “Seaward Estates – Site Development and Architectural Guidelines” lodged with the developer;
  • 1.1.13 “the environmental principles” means the environmental framework for the Initial Site Assessment, design, rehabilitation and landscaping requirements and all other relevant information approved by the Department of the Environment, Private Bag X07, Pietermaritzburg, and adopted by the Developer and the Seaward Estates Master Home Owners Association;
  • 1.1.14 “the Environmental Management Plan” means the comprehensive plan covering all the phases identified within Seaward Estates approved by the Department of the Environment and adopted by the Developer and the Seaward Estate Master Home Owners’ Association;
  • 1.1.15 “the gate house” means the security gate and buildings at the entrance to the estate;
  • 1.1.16 “estate” means the township shown on General Plan SG No. 2356/99 consisting of erven 1751 to 1823 Ballitoville and, on their proclamation, subsequent phases on the Rem of erf 1478 Ballito Extension 5;
  • 1.1.17 “the parks, areas of conservation significance, and water features” means the existing land resource designated and shown on the General Plan of the township (SG No. 2356/99 ) and any future amendments thereto which may include other areas that may be incorporated, restored and rehabilitated in accordance with the Environmental Management Plan for the benefit of the owners of erven in the township;
  • 1.1.18 “conservation significance” means an area to be designated on the General Plan of the township (SG No. ) which is in the process of being identified by the specialist “wetland study”, further development of parks or eco-trail which may be nominated now or at any time in the future for Registration and afforded conservation protection;
  • 1.1.19 “trustees” means the trustees of the association;
  • 1.1.20 “vice chairman” means the vice chairman of the Board of Trustees.

1.2 Unless the context otherwise requires, any words importing the singular number shall also include the plural number and vice versa and words importing any one gender shall include the other two genders.

 

2 LEGAL STATUS AND LIMITED LIABILITY

2.1 The association is a common law corporate body and as such:-

  • 2.1.1 its assets, liabilities, rights and obligations vest in it independently of its members;
  • 2.1.2 it may not conduct any business for profit or gain and it will use its funds solely for the objects for which it has been established and should it invest its funds on a temporary basis
  • it will have perpetual succession.
  • it may be sued in its own name.

2.2 The members will not by reason of their membership be liable for the liabilities and obligations of the association.

 

3 OBJECTS AND PURPOSE

The general purpose and object of the Association is to promote, advance and protect the collective interests of its Members and facilitate harmonious relationships amongst the Members whilst at the same time ensuring that the Members comply with all the obligations imposed upon them in terms of this Constitution and such other obligations as they may be bound to perform and, without derogating from the generality of the above, more specifically:

3.1 to take transfer of those portions of the acquired, common or purchased property that are to beowned by the Association for the benefit of its Members; [Amended 4.04.2018 AGM]

3.2 provide a secure environment for the members of the association by way of gated controlled access to the Estate by way of the gate house, perimeter fencing and the appointed security staff. [Amended 2012 AGM)

3.3 maintain the aesthetic standards of the Estate by controlling buildings and improvements on the erven in accordance with the Site Development and Architectural Guidelines, the approved Environmental Principles, and Environmental Management Plan and any amendments thereto approved by the Seaward Estates Master Home Owners Association from time to time.

3.4 maintain:-

  • 3.4.1 the gated security access and perimeter electrified fencing;
  • 3.4.2 the roads and verges in the Estate;
  • 3.4.3 the street lighting in the Estate;
  • 3.4.4 the areas of conservation significance, water features, and “wetland” areas and especially to preserve any eco-sensitive areas, plant species or colonies in accordance with the Environmental Management Plan for the benefit of the members and in accordance with any future rehabilitation and amendments approved by the Department of the Environment and adopted by the Seaward Estates Master Home Owners Association from time to time;

3.5 maintain good conduct standards of members and occupiers of erven in the Estate for the general benefit of all members in accordance with the Conduct Rules adopted by the Seaward Estates Master Home Owners Association;

3.6 insure and properly maintain all assets under its control;

3.7 take under its control on the terms and conditions of this constitution, on their proclamation, subsequent phases on the Rem of erf 1478 Ballito Extension 5 referred to in 1.1.13;

3.8 raise levies as provided for herein to fund the carrying out of its objects;

3.9 impose fines and penalties.

 

4 POWERS

The association has plenary powers (including all those normally enjoyed by a registered company), to enable it to achieve its objects, except only for the powers expressly or impliedly excluded by this constitution or by the association’s legal status as a common law corporate body.

 

5 MEMBERSHIP

5.1 Membership of the association shall be limited to the developer in his capacity as such (and represented by not more than 2 nominees) until all the erven are sold and transferred and to any other person who is in terms of the Deeds Registry’s Act reflected in the records of the Deeds Office concerned as the registered owner of an erf.

5.2 Where any erf is owned by more than one person, all the registered owners of that erf shall together be deemed to be one member of the association and have the rights and obligations of one member of the association provided however, that all co-owners of any erf shall be jointly and severally liable for the due performance of any obligation of a member to the association.

5.3 When a member becomes the registered owner of an erf he shall ipso facto become a member of the association and when he ceases to be the owner of an erf, he shall ipso facto cease to be a member of the association.

5.4 No member shall let or otherwise part with occupation of his erf whether temporarily or otherwise, unless he has agreed with a proposed occupier of such erf as a stipulatio alteri in favour of the association that such occupier shall be bound by all the terms and conditions hereof.

5.5 A registered owner of any erf may not resign as a member of the association.

5.6 All the rights and obligations of a member shall not be transferable and every member shall:-

  • 5.6.1 further to the best of his ability the objects and interests of the association;
  • 5.6.2 observe all rules made by the association or the trustees; provided that nothing contained in this constitution shall prevent a member from ceding his rights in terms of this constitution as security to the mortgage of that member’s erf.

5.7 The fact that a member of the association is also a member of a body corporate of a sectional title or any mini sub-development within the Estate shall in no way affect such member’s liability to the association for levies or any other obligation to the association. The association shall, however, without prejudice to its rights against individual members be entitled, for the purposes of convenience to render an account to a body corporate for the individual obligations of its members to the association.

 

6 LEVIES

6.1 The trustees may from time to time impose levies upon the members for the purpose of meeting all the expenses which the association has incurred, or to which the trustees reasonably anticipate the association will be put in the attainment of its objects and pursuit of its business.

6.2 Any levy shall be borne by each member in direct proportion to the number of erven owned by each member.

6.3 Per the definition clause 1.1.7 of an erf, unit freehold of sectional title, the levy raised over the erf will be equal to the development potential of the units that may be erected on the erf as determined by the Town Planning Ordinance enacted by the Local Authority.

6.4 Levies will be raised within TWO calendar months of the owner becoming the registered title holder of an erf.

6.5 The trustees shall not less than 30 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 by such member an estimate in reasonable detail of the amount which shall be required by the association 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 trustees may include in such estimate an amount to be held in reserve to meet anticipated expenditure not of an annual nature.

6.6 Each notice to each member shall specify the contribution payable by that member to such expenses and reserve fund.

6.7 Each annual levy shall be due at the commencement of every financial year. Where a member is deemed to be in “good standing” the annual levy may be paid in equal monthly instalments, due in advance on the first day of each and every month of each financial year. Amended 27.03.2013

  • 6.7.1 A member in “good standing”, for the purposes of clause 6.7 only, shall be a member who has discharged all of his financial obligations to the Association as at the end of the preceeding financial year, or a member who has made adequate arrangements to meet any fees due, owing and payable to the Association. Amended 27.03.2013

6.8 In the event of the trustees for any reason whatsoever failing to prepare and serve the estimate referred to above timeously, every member shall until service of such estimate as aforesaid continue to pay the levy previously imposed and shall, after such service pay such levy as may be specified in notice in respect of the new levy.

6.9 The trustees may from time to time impose special levies upon members in respect of all such expenses which were not included in the trustees’ original estimates.

6.10 The trustees shall be empowered in addition to such other rights as the association may have in law to charge interest on arrear levies and other fees and charges raised by the Association at a rate not exceeding the prime rate charged by BOE Bank Limited now operating as Nedbank Limited. Amended 27.03.2013

  • 6.10.1 Where arrear levies and or other fees and charges raised by the Association, are outstanding in excess of the number of days specified in the credit control policy as approved by the Trustees from time to time, the debt may be handed over for legal collection, where this occurs the debtor shall be indebted to the Association for; Amended 27.03.2013
  • 6.10.1.1 The amount due and payable to the Association at the time of handover and;
  • 6.10.1.2 Any legal or collection costs attracted by such debt and;
  • 6.10.1.3 At the discretion of the Trustees, levies and basic service charges based on the tariffs as at the time of legal handover, for the balance of the Association’s financial year in which legal handover occurs.

6.11 Any fees or charges due by a member shall be a debt due by him to the Association. Notwithstanding that a member ceases to be such, the association shall have the right to recover arrear levies and interest from him. No levies or interest paid by a member shall under any circumstances be refundable by the association to such person upon such person ceasing to be a member. Further, a member on ceasing to be such shall have no claims whatsoever on any other monies held by the association. A member’s successor in title to an erf shall be liable as from the date upon which he becomes a member pursuant to the transfer of such erf, to pay the levy and interest due thereon attributable to that erf. Amended 27.03.2013

6.12 The developer shall be liable for levies on the same basis as any other member.

6.13 The trustees may enter into an agreement or agreements with the developer for the provision of a capital sum and/or equipment to the association in lieu of levies.

6.14 No transfer of an erf shall be registered unless a certificate has been issued by the Association that

  • 6.14.1 All levies fees and charges due to it in respect of the erf have been paid. Amended 27.03.2013
  • 6.14.2 The purchaser has paid three monthly levies, basic service charges, the Levy Stabilisation Fund charge and any other amounts required for levy consent. Amended 27.03.2013

 

7 RULES

7.1 Subject to any restriction imposed or direction given at a general meeting of the association, the trustees may from time to time make rules in regard to the enforcement of the objects of the association set out in paragraph 3 hereof. To the extent that any rule made in terms of this constitution conflicts with any rule of any body corporate of a development within the township, the rule made in terms of this constitution shall prevail.

7.2 For the enforcement of any of the rules made by the trustees in terms hereof, the trustees “or their nominated representative “may:-

7.2.1 give notice of the member concerned requiring him to remedy any breach of the rules within a reasonable time;

  • 7.2.2 to take or cause to be taken such steps as they may consider necessary to remedy the breach of the rule of which the member may be guilty and debit the costs of doing so to the member concerned which amount shall be deemed to be a debt owing by the member concerned to the association;
  • 7.2.3 Impose a system of fines/or other penalties. Where the non-compliance of any rule defined within the Municipal Fine structure, such fine shall be no greater than the existing Municipal Fines for such non-compliance. Where the non-compliance does not fall within the Municipal Fine Structure, the amounts of such fines shall be determined by the Trustees but shall not exceed R5 000 without the resolution of the full board of Trustees.
  • 7.2.4 impose a system of fines and/or other penalties. The amounts of such fines shall be reviewed and confirmed at each annual general meeting of the association.
  • 7.2.5 and/or with the written permission of the full board of trustees take such other action including proceedings in court as they may deem fit and defend any action taken by any member or any other person.

7.3 In the event of the trustees instituting any legal proceedings against any member or resident within the Estate for the enforcement of any of the rights of the association in terms hereof, the association shall be entitled to recover all legal costs so incurred from the member or resident concerned, including costs calculated as between attorney and own client, collection commissions, expenses and charges incurred by the association in obtaining the recovery of arrear levies, or any other arrear amounts due and owing by such member to the association , or in enforcing compliance with these rules, the conduct rules or the act.

7.4 In the event of any breach of the rules by the members of any member’s household or his guests or lessees, such breach shall be deemed to have been committed by the member himself, but without  prejudice to the aforegoing, the trustees may take or cause to be taken such steps against the person actually committing the breach as they in their discretion may deem fit.

7.5 In the event of any member disputing the fact that he has committed a breach of any of the rules, a committee of three (3) trustees appointed 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.

7.6 Any fine imposed upon any member shall be deemed to be a debt due by the member to the association and shall be recoverable by ordinary civil process.

7.7 Notwithstanding anything to the contrary herein contained, the trustees may in the name of the association 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.

7.8 The association may in general meeting itself make any rules which the trustees may make and may in general meeting vary or modify any rules made by it or by the trustees from time to time.

 

8 TRUSTEES

8.1 There shall be a Board of Trustees of the association which shall consist of not less than five (5) nor more than ten (10) members, the actual number of Trustee each year shall be recommended by the Chairman of the Association, at the Annual General Meeting of the Association. Amended 27.03.2013

8.2 A trustee shall be an individual but need not himself be a member of the Association. A trustee, 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.

8.3 The first trustees shall, on the formation of the Association, be appointed by the developer.

8.4 During the development period at least two (2) of the trustees shall be nominees of the developer.

8.5 Trustees, other than the initial trustees, shall be elected by the members in general meeting. For a period of temporary absence by a trustee, the trustees may appoint an alternate trustee. Amended 27.03.2013

8.6 Nominations for trustees shall be made by not less than four (4) members in good standing, shall be in writing, bearing the nominee’s acceptance and lodged with the trustees not less than thirty (30) days prior to the general meeting at which an election for trustees is to take place. Amended 27.03.2013

9 REMOVAL AND ROTATION OF TRUSTEES

9.1 Save as set out in clause 9.3, and save for the trustees appointed by the developer in terms of 8.3, each trustee shall continue to hold office from the date of his appointment until the end of the annual general meeting next following his appointment, at which meeting each trustee shall be deemed to have retired from office but will be eligible for re-election to the Board of Trustees at such meeting.

9.2 A trustee shall be deemed to have vacated his office upon:-

  • 9.2.1 his having become disqualified to act as a director in terms of the provisions of the Act;
  • 9.2.2 his being removed from office as provided in Section 220 of the Act;
  • 9.2.3 in the event of his being a member of the association, his being disentitled to exercise a vote in terms of clause 20.2 below.

9.3 Upon any vacancy occurring in the Board of Trustees 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 Trustees, provided, however, that, if the trustee who vacates his office as aforesaid was a nominee of the developer, the developer shall be entitled to nominate a trustee in his stead.

 

10 CHAIRMAN AND VICE CHAIRMAN

10.1 The trustees shall within 14 days after each annual general meeting appoint from their number a chairman and vice chairman, who shall hold their respective offices until the end of the next annual general meeting, provided that the office of chairman or vice chairman shall ipso facto be vacated by a trustee holding such office upon his ceasing to be a trustee for any reason. No one trustee 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 Trustees shall immediately appoint one of their number as replacement in such office. During the development period the chairman shall be elected by the nominees of the developer.

10.2 Except as otherwise provided, the chairman shall preside at all meetings of the trustees and at all general meetings of members and, in the event of his not being present within 5 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.

 

11 TRUSTEE’S EXPENSES

Trustees shall be entitled to recover all reasonable and bona fide expenses incurred by them respectively in or about the performance of their duties as trustees. Save as aforesaid, trustees shall not be entitled to any remuneration for the performance of their duties in terms hereof.

 

12 POWERS OF TRUSTEES

12.1 Subject to the express provisions of these presents, the trustees shall manage and control the business and affairs of the association, 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 association and do all such acts on behalf of the association as may be exercised and done by the association and as are not by the Act or by these presents required to be exercised or done by the association in general meetings, subject however, to such rules as may be made by the trustees from time to time.

12.2 Save as specifically provided in these presents, the trustees shall at all times have the right to engage on behalf of the association the services of accountants, auditors, attorneys, advocates, architects, engineers, a managing agent and any other professional firm or person or other employees whatsoever for any reasons deemed necessary by the trustees and on such terms as the trustees shall decide.

12.3 The trustees shall further have power to make rules as provided for herein.

12.4 The Board of Trustees shall have the right to co-opt onto the board any person or persons chosen by it. A co-opted trustee need not necessarily be a member of the association. A co-opted trustee shall hold office until the end of the next annual general meeting after his co-option when he shall retire but shall be eligible for election as a trustee, or in the event of his not being elected shall against be eligible for co-operation by the Board of Trustees.

12.5 The trustees shall be entitled 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, with further power to vary or revoke such appointments and delegations as the trustees may from time to time deem necessary.

 

13 PROCEEDINGS OF TRUSTEES

13.1 The trustees may on 7 days written notice given by any one trustee to the other trustees, meet together for the dispatch of business, adjourn and otherwise regulate their meetings as they think fit, subject to any provisions of these presents.

13.2 The quorum necessary for the holding of any meetings of the trustees shall be a majority present personally; provided however that, during the development period, the presence of at least one nominee of the developer shall be necessary at all meetings of trustees in order to form a quorum. Any resolution of the Board of Trustees shall be carried on a simple majority of all votes cast. In the case of an equality of votes for and against any resolution, the resolution shall be deemed to have been defeated.

13.3 The trustees shall cause minutes to be kept of every trustees’ meeting, which minutes shall, without undue delay after the meeting has closed, be reduced to writing and certified correct by the chairman. All minutes of trustees’ meetings shall, after certification, be placed in a trustee’s minute book to be kept in accordance with the provisions of the law relating to the keeping of minutes of meetings of directors of companies. The trustees’ minute book shall be open for inspection at all reasonable times by any trustee, the auditors, the members and the managing agent.

13.4 Save as provided in these presents, the proceedings of any trustees’ meeting shall be conducted in such reasonable manner and form as the chairman of the meeting shall decide.

13.5 A resolution signed by all the trustees shall be valid in all respects as if it had been duly passed at a meeting of the Board of Trustees.

 

14 GENERAL MEETINGS OF THE ASSOCIATION

14.1 The association shall within six (6) months after the end of each financial year hold a general meeting as its annual general meeting in addition to any other general meetings during that year, and shall specify the meeting as such in the notices in terms of clause 15 herein, calling the meeting.

14.2 Such annual general meeting shall be held at such time and place as the trustees shall decide from time to time.

14.3 All general meetings other than annual general meetings shall be called extraordinary general meetings.

14.4 The trustees may, whenever they think fit, convene an extraordinary general meeting.

 

15 NOTICES OF MEETINGS

15.1 An annual general meeting and a meeting called for the passing of a special resolution, shall be called by sixty (60) clear days’ notice in writing at least, and an extraordinary general meeting, other than one called for the passing of a special resolution, shall be called for by fourteen (14) clear days’ notice in writing at the least. In each case the notice shall be exclusive of the day on which it is given, and shall specify the place, the day and hour of the meeting. Amended 27.03.2013

15.2 The agenda for an Annual General Meeting and a meeting called for the passing of special business shall be served in writing, twenty one (21) clear days prior to the meeting. Amended 27.03.2013

15.3 In the case of special business, in addition to any other requirements contained in these presents, the general nature of that business, and in the case of a special resolution, the terms and effect of the resolution and the reasons for it shall be given in the manner hereinafter mentioned or in such other manner, if any, as may be prescribed by the trustees to such persons as are under these presents entitled to receive such notices from the association.

15.4 A general meeting of the association shall notwithstanding that it is called by shorter notice than that specified in these presents be deemed to have been duly called if it is so agreed:-

  • 15.4.1 in the case of a meeting called as the annual general meeting by all the members entitled to attend and vote thereat; and
  • 15.4.2 in the case of an extraordinary general meeting, by a majority in number of the members having a right to attend and vote at the meeting, being a majority together holding not less than 95% of the total voting rights of all members.

15.5 Insofar as special notice may be required of a resolution, whether by any provision of the Act or these presents, then the provisions of Section 186 of the Act shall apply.

15.6 The association shall comply with the provisions of Section 185 of the Act as to giving of notices and circulating statements on the requisition of members.

15.7 The accidental omission to give notice of a meeting or of any resolution, or to give any other notification, or present any document required to be given or sent in terms of these presents, or in terms of the Act, or the non-receipt of any such notice, notification or document by any member or other person entitled to receive the same, shall not invalidate the proceedings at, or any resolution passed at any meeting.

 

16 QUORUM

16.1 No business shall be transacted at any general meeting unless a quorum is present when the meeting proceeds to business. During the development period, the quorum necessary for the holding of any general meeting shall be such of the members entitled to vote as together for the time being represent the votes of the developer, and 15% of votes in number from all other members of the association entitled to vote for the time being. After the development period, the quorum shall be such of the members entitled to vote as together for the time being represent the votes of 15% in number of all members entitled to vote for the time being.

16.2 If within half an hour from the time appointed for the holding of a general meeting a quorum is not present, the meeting shall stand adjourned to the same day in the next week at the same place and time or at such other place as the chairman of the meeting shall appoint. If at the adjourned meeting a quorum is not present within half an hour from the time appointed for holding the meeting, the members present shall be a quorum.

 

17 AGENDA AT MEETINGS

17.1 In addition to any other matters required by the Act or these presents to be dealt with at an annual general meeting, the following matters shall be dealt with at every annual general meeting:-

  • 17.1.1 the consideration of the chairman’s report;
  • 17.1.2 the election of trustees;
  • 17.1.3 the consideration of any other matters related at the meeting, including any resolutions proposed for adoption by such meeting, and the voting upon any such resolutions;
  • 17.1.4 the consideration of the accounts of the association for the preceding financial year;
  • 17.1.5 the consideration of the report of the auditors, the fixing of remuneration for the auditors and the appointment of the auditors for the ensuing year.

17.2 No business shall be dealt with at any general meeting unless written notice has been given to the trustees not less than thirty (30) days before such meeting, in the form provided for is terms of clause 15.3 above by the person proposing to raise such business of his intention to do so; provided however, that the chairman may on ordinary resolution of the meeting relax this condition. Amended 27.03.2013

 

18 PROCEDURE AT GENERAL MEETINGS

The chairman may, with the consent of any general meeting at which a quorum is present and shall if so, directed by the meeting, adjourn a meeting from time to time and place to place. No business shall be transacted at any adjourned meeting other than business which could have been transacted at the meeting from which the adjournment took place. Whenever a meeting is adjourned for 10 days or more, notice of the adjourned meeting shall be given in the same manner as of an original meeting. Save as aforesaid, the members shall not be entitled to any notice of adjournment or of the business to be transacted at an adjourned meeting.

 

19 PROXIES

19.1 A member may be represented at a general meeting by a proxy, who need not be a member of the association. The instrument appointing a proxy shall be in writing signed by the member concerned or his agent, duly authorised in writing, but need not be in any particular form provided that, where a member is more than one person, a majority of those persons shall sign the instrument appointing on proxy on such member’s behalf. Amended 27.03.2013

19.2 The instrument appointing a proxy and the power of attorney or any other authority under which it is signed shall be tabled at the commencement of the meeting at which the person named in the instrument proposes to vote. No instrument appointing a proxy shall be valid after the expiration of 12 months from the date of its execution. Amended 25.11.2015

19.3 A vote given in accordance with the terms of a proxy shall be valid notwithstanding the previous death of the principal or revocation of the proxy, provided that no intimation in writing of the death or revocation had been received by the trustees at any time before a vote is taken in respect of which the proxy exercises such vote. Amended 25.11.2015

 

20 REPRESENTATION AT GENERAL MEETINGS

20.1 At every general meeting:-

  • 20.1.1 every member, including the developer, in person or by proxy, is entitled to vote. The value of the vote shall be in proportion to the number of erven owned by the member; Amendment 25.11.2015 according to SGM meeting minutes held 25 November 2015 Resolution 9 on page 5 was passed unanimously due to Durban high court ruling 22.07.2015 apropos Joint Residential Representative updated 11.03.2020
  • 20.1.2 if an erf is registered in the name of more than one person, then all such co-owners shall share the voting proportion attached to the erf or erven as described in clause 20.1.1.
  • 20.1.3 members who are members by virtue of ownership of a unit in a sectional title development or through ownership of a mini-sub “or private residential block shall exercise their votes, raise issues or table resolutions per clause 20.1.1. Amendment 25.11.2015 according to SGM meeting minutes held 25 November 2015 Resolution 9 on page 5 was passed unanimously due to Durban high court ruling 22.07.2015 apropos Joint Residential Representative updated 11.03.2020

20.2 Save as expressly provided for in these presents, no person other than a member duly registered and who shall have paid every levy and other sum, if any, which shall be due and payable to the Association in respect of or arising out of his membership and who is not under suspension, shall be entitled to be present or to vote on any question, either personally or by proxy at any general meeting. Amended 25.11.2015

20.3 At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded by the chairman and, unless a poll is so demanded, a declaration by the chairman that a resolution has, on a show of hands, been carried or carried unanimously or by a particular majority or negated, and an entry to that effect in the book containing the minutes of the proceedings of the Association, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against such resolution. The demand for a poll may be withdrawn.

20.4 If a poll is duly demanded it shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. Scrutineers shall be elected to determine the result of the poll. In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place, or at which the poll is demanded, shall be entitled to a second or casting vote.

20.5 A poll demanded on the election of a chairman or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chairman of the meeting directs. The demand for a poll shall not prevent the continuation of a meeting for the transaction of any business other than the question upon which the poll has been demanded.

20.6 Every resolution and every amended resolution proposed for adoption by a general meeting shall be seconded at the meeting and, if not so seconded, shall be deemed not to have been proposed.

20.7 An ordinary resolution (that is a resolution other than a special resolution) or the amendment of any ordinary resolution shall be carried on a simple majority of all votes cast. In the case of equality of votes for and against any resolution, the resolution shall be deemed to have been defeated.

20.8 Unless any member present in person or by proxy at a general meeting shall, before the closure of the meeting, have objected to any declaration made by the chairman of the meeting as to the result of any voting at the meeting, whether by show of hands or otherwise, or to the propriety or validity of the procedure at such meeting, such declaration by the chairman shall be deemed to be a true and correct statement of the voting, and the meeting shall in all respects be deemed to have been properly and validly constituted and conducted. An entry in the minutes to the effect that a motion has been carried or lost, with or without a record of the number of votes recorded in favour of or against such motion, shall be conclusive evidence of the votes so recorded. Amended 25.11.2015

 

21 ACCOUNTS

21.1 The accounts and books of the association shall be open to inspection by members at all reasonable times during business hours.

21.2 Once in each financial year the accounts of the association shall be examined, and the correctness thereof ascertained by auditors. The duties of the auditors shall be regulated in accordance with Chapter 10 of the Act.

 

 

22 SERVICE OF NOTICES

A notice may be served by the Association by hand delivery, pre-paid registered post or electronic mail upon any member at the address of any unit owned by him unless the member shall have notified the association of another address for service of notice. Any notice served shall be deemed to have been served on the day but one following that on which the notice was sent. Amended 27.03.2013

 

 

23 INDEMNITY

Every trustee, servant, agent and employee of the association and any managing agent, his employees, nominees or invitees, shall be indemnified by the association against all costs, losses and expenses (including travelling expenses) which such person or persons may incur or become liable for by reason of any contract entered into or any act or deed done by such person or persons in the discharge of their respective duties, including in the case of a trustee, his duties as chairman or vice chairman. Without prejudice to the generality of the aforegoing, the association shall specifically indemnify every such person against all losses of whatsoever nature incurred arising out of any bona fide act, deed or letter done or written by him jointly or severally in connection with the discharge of his duties.

 

 

24 AMENDMENT OF THIS CONSTITUTION, FORMATION SECTION 21 COMPANY

24.1 This constitution may be amended by resolution of a members’ meeting passed by a majority of not less than 75% of the votes cast.

24.2 On the basis of a resolution passed in terms of clause 24.1 the association may convert itself to a Section 21 company, the Articles of Association of which shall, mutatis mutandis be the same as the constitution of the association.

 

25 MERGER

25.1 The association may merge with any other body with similar objects, by resolution of a members’ meeting.

25.2 In this event, the association’s net assets after discharge of its liabilities, together with its rights and obligations under this constitution and under the conditions of title of units in the association area will vest in the merged entity.

 

 

26 DISSOLUTION

26.1 The association may dissolve itself by resolution passed by a majority of not less than 75% of the votes cast at a members’ meeting.

26.2 In this event:-

  • 26.2.1 the trustees will act as liquidators.
  • 26.2.2 the association’s net assets after discharge of its liabilities will be applied to repay the most recent levies paid by members and any balance after all levies have been repaid will be distributed in the liquidator’s discretion to one or more public charities.

 

 

27 DEVELOPMENTS WITHIN THE TOWNSHIP AREA

Should any owner of an erf wish to develop the erf as a sectional title or mini sub-development such owner shall submit to the association for approval the proposed house rules to be made applicable to the sectional title or  mini sub-development and such house rules shall not be adopted for such development until the association’s approval has been given in writing.

SOCIAL RULES AND REGULATIONS – ANIMALS

1. Definitions

In these rules unless inconsistent with the context –

  • “Poultry” means and includes fowls, ducks, geese, turkeys, guinea fowl, pigeons and parrots;
  • “Animal” means and includes any domesticated pet, cat, dog, or any of any other animal reptile or bird;
  • “Dog” means the male or female of this species;
  • “Ferocious or vicious” shall mean animal, bird or reptile which has bitten or attempted to bite a person or animal or damages another persons’ property other than in defense of itself or its custodian.;
  • “Nuisance” unless otherwise provided for in these bylaws, means any condition, thing, act or sound which is offensive or injurious or which tends to prejudice the safety, good order, peace or health or the rights or reasonable comfort, convenience, peace or quiet of the general public within the area;
  • “Premises” shall be any building together with the land on which the same is situated and adjoining land or building used in connection therewith or any land without buildings thereon;
  • “Stray or ownerless” any dog or animal not wearing a badge or other means of identification whereby the owner can be traced and appears to be ownerless, shall be deemed to be ownerless.
  • “Valid rabies certificate” means valid rabies, inoculation certificate, to mean a certificate of inoculation, issued by a registered veterinarian within the previous two-year period;
  • “Veterinarian” means a person registered as such under the veterinary and Para-Veterinary Professions Act, Act No. 29 of 1982.

2. Association permission to keep an animal

2.1. No owner or occupier may keep any pet or other animal, bird or reptile on any premises with Seaward Estates without the written consent of the Association, upon submission of such application proof of a valid rabies certificate shall be required in respect of dogs.

With the proviso that where such premises is zoned Sectional Title housing written permission from the body corporate, of such Sectional Title development shall first be obtained;

2.2. Consent by the Association may be given subjected to conditions which may be altered or withdrawn at any stage by the Association.

2.3. Should consent from the Association to keep an animal be revoked, the owner of such animal, upon receiving written notice from the Association, shall within the time stipulated in such notice, remove such animal from the Estate.

2.4. As of the date of promulgation of the SEMHOA Rules, new applications for permission to house animals, shall only be considered for a maximum of (2) two animals per unit, with the proviso that

  • 2.4.1. Animals with a body weight in excess of 20 kg each, shall not be permitted with the proviso that.
  • 2.4.1.1. Any owner or occupier who has received permission, prior to the promulgation of the SEMHOA Rules, to keep more than (2) dogs, or dogs with a body weight exceeding 20 kg shall be permitted to keep their pet but shall not be permitted to replace such pet upon it’s death unless clause 2.4.1 above is complied with.
  • 2.4.1.2. Any occupier who is NOT an owner, who has received permission to keep dogs which are not in compliance with sub paragraph 2.4.1. above, shall be permitted to keep their dogs until the expiration of their lease and shall require to dispose of their dogs should they wish to renew their lease.

2.5. Any owner or occupier who has received permission to keep an animal, shall ensure that such pet is confined within the property by means of adequate fencing which is accordance with the Association rules.

2.6. A dog for which no valid rabies inoculation certificate is held shall not be permitted to be kept on the Estate.

3. Prohibited Animals

No person shall keep upon any premises within the boundaries of Seaward Estates.

  • 3.1. any animal, bird or reptile which is deemed dangerous, ferocious or vicious.
  • 3.2. cattle or any horse, mule, ass or other draught animal or any pig, sheep or goat or any form of live poultry;
  • 3.3. any wild undomesticated animal, bird or reptile.
  • 3.4. any hive or swarm of bees.

4. No person shall keep on any premises within the Seaward Estates any animal or reptile (whether male or female)

  • which is ferocious or vicious.
  • 4.2. which has a propensity to rush at any person, animal or vehicle, or which is generally a nuisance to the public on any premises or that are not properly surrounded by a fence of such a nature as to ensure that such dog is confined to such unless such dog is kept on a leash;
  • 4.3. In respect of dogs, any bitch in season unless she is kept under proper control so as to prevent her from being a nuisance to the neighbours or the general public. The Association may by notice in writing direct to the owner or person in control to Animal Registration Form_v2 Page 3 June 2019 Version 2 remove such bitch to a place in which suitable accommodation can be provided for the housing of such bitch and at the owner’s expense and shall require it to be kept for such a period until she is out of season;
  • 4.4. Any dog or animal which by reason of its barking, yelping, howling or whining or other sound, which creates a nuisance or disturbs the general public’s peace.
  • 4.5. Which bites or savages any person unless it can be proved that such bite or savaging was in reasonable defense of the owner or person responsible for the keeping of the dog, or their dependents or property, and that the person bitten seriously threatened the owner, property or dependents of the owner or person keeping such animal;
  • 4.6. attacks, runs at or jumps at any person, unless it can be proved that such attack, running or jumping was in reasonable defense of the owner or person responsible for the keeping of the animal, or their dependents or property, and that the person attacked, run at or jumped at seriously threatened

5. Without in any way detracting from or diminishing in the liability of the owner of or the person keeping any animals for a breach of these rules:

  • 5.1. the owner of any premises if he resides on such premises shall be deemed to be keeping an animal on such premises;
  • 5.2. if the owner of the premises does not reside on the premises any person over the age of eighteen years who resides on such premises shall be deemed to be keeping an animal on such premises;
  • 5.3. in the case of any non compliance in terms of these rules it shall be competent for the true owner of the dog or animal in question to be found in contravention of the rules or alternatively, the person keeping or deemed to be keeping the dog in question to be served with a financial penalty therefore.

6. The Association may, in addition to imposing penalties against the owner, call upon an authorised officer to seize any dog or animal which is vicious or dangerous or which is creating a disturbance by barking or otherwise.

7. Any animal which is found at large and unattended on Seward Estates, or in a diseased state and apparently ownerless, may be seized by an officer empowered in terms of Kwa Dukuza Municipal By Laws and impounded and if found dangerous, vicious or diseased, may be destroyed in terms section 5 of the Animal Protection Act, (Act No. 71 of 1962).

8. No person shall allow an animal, being his property or in his charge to be in any common area within Seaward Estates, unless it is on a leash or otherwise controlled by an adult, to ensure that it will not in any circumstances endanger the safety or any person or traffic making use of such common area.

9. No person shall use or cause or allow any premises in the Estate to be used for the accommodation of animals for reward.

10. No person, shall by any means willfully frighten, tease or enrage any animal.

11. the owner or person in charge of any animal which has died shall be responsible for its proper burial, at such place as may be approved by the Municipality.

12. No person shall keep any animal or bird, other than a domestic pet or small bird in a cage, in any sleeping or living apartment in any dwelling.

13. No person shall permit any dog or other animal, of which he is the owner or in charge, to rush at pedestrians, motorcars or cyclists or other road users, or permit such animal to interfere with the comfort or safety of any member of the public.

14. Offences and penalties:

Any person who contravenes any provision of these rules or who fails to comply with the requirements thereof shall be guilty of a non-compliance shall be liable to the penalties determined by the Association.

  • 14.1. Any person who has on his premises within Seaward Estates, any animal or bird which, by reason of continued barking, yelping, howling, crowing, or making other noises, disturbs the public peace or is a source of nuisance to the neighbourhood, after the expiration of a reasonable time to be stipulated in a notice signed by the Association and served upon him, requiring him to abate such disturbance or nuisance, shall be guilty of a non compliance of the rules and shall be liable to the penalty prescribed.
  • 14.2. If any animal is believed to be fall within clause 4 and the sub clauses pertaining thereto, or where notice has been served in terms of 14.1 above and has not been complied with, it shall be competent for the Association, by written notice to revoke permission for the animal to be housed on Seaward Estates. Should such animal not be removed within the time stipulated in such notice, the Association may at its sole discretion:
  • 14.2.1. In the case of a registered member of the Association, levy a financial penalty prescribed.
  • 14.2.2. In the case of a person renting accommodation the Association shall have the right to demand that the lease agreement be summarily cancelled and that such occupier is evicted from the Estate.

SOCIAL RULES AND REGULATIONS – FURNITURE

1. No furniture deliveries using vehicles larger than 3 tons shall be permitted within the Estate. Vehicles larger than three tons shall require to park in the areas designated for the off‐loading of furniture deliveries and a shuttle service using a fixed axle vehicle shall be required.

2. Vehicles offloading furniture shall be parked in such a manner that there is NO obstruction to the entrance and exit gates, or the Main Road.

3. No furniture deliveries or collection will be permitted to enter the Estate before 07h00 on a weekday or before 09h00 on a weekend or public holiday. All deliveries shall require to be completed before 17h00 on any day.

4. No delivery vehicles shall be permitted to stay overnight within the Estate.

5. The resident shall be responsible for any costs incurred as a result of damages to any of the services on the Estate which may occur during the delivery or collection of furniture; and it shall be incumbent upon them to claim any such damage claims back from their contractors.

6. SEMHOA shall not accept any liability for claims arising from demurrage or delays, or any other reason, where these rules are enforced.

7. It is incumbent upon the resident to dispose of any boxes or packaging materials, these items may NOT be included in household or garden refuse for collection by the service provider. These items may be disposed of at the Dolphin Coast Waste Management site at Shakashead (032 946 0857.)

Rules for the holding of private functions at private residences within Seaward Estates

1. In the event of a private function to be held at any private residence within Seaward Estate and that will be attended by a maximum of 10 (Ten) persons (whether it be residents or non-residents of Seaward Estates) will not require a written application for consent for the holding of such a function to the Seaward Estate Management on condition that the function will not involve the use of public announcement systems and/or the use of a DJ and that it will be subject to the SEMHOA Rules applicable to the holding of such a function and inclusive of the Rules pertaining to nuisance and parking.

2. In the event of a function to be held at a private residence within Seaward Estates that will be attended by more than 10 (Ten) persons (irrespective of the fact whether it will consist of resident or non-residents of Seaward Estates), the following conditions will be applicable :

  • 2.1. The Applicant, who must be the owner of the property concerned or the legal occupier thereof, will have to make a written application via the Estate Management to SEMHOA at least 21 (twenty-one) days prior to the holding of such function for written consent to have such a function at the said premises;
  • 2.2. The written application will clearly indicate the following :
  • 2.2.1. Full details of the nature and purpose of the function:
  • 2.2.2. The exact number of people that will be attending the function;
  • 2.2.3. The number of toilets available in the unit (To be noted that one such facility is required for every ten persons attending);
  • 2.2.4. The exact amount of vehicles that will require parking on the premises concerned as well as an undertaking to provide Estate Management with the registration number of each vehicle that will have to enter Seaward Estates for this purpose at least 24 (twenty-four) hours prior to the date of the function;
  • 2.2.5. In the event of the Applicant not being the owner of the said property, that the written consent to the function being held on the property by the rightful owner thereof had been obtained and that it is attached to the written application;
  • 2.2.6. That a signed consent form (to be procured from Management Offices upon request) had been obtained from all adjoining property owners or residents beforehand and that the latter are attached to the written application;
  • 2.2.7. An undertaking that no Public Announcement Systems or any DJ will be utilized during the function;
  • 2.2.8. An undertaking that a detailed guest list, indicating the names and surnames of each and every guest that will be attending the function, will be provided to Estate Management in writing at least 24 (twenty-four) hours prior to the holding of the function;
  • 2.2.9. An undertaking that all guests that are non-residents of Seaward Estates will be made aware of all the relevant SEMHOA Rules applicable to the holding of such a function as well as other rules that the guests will have to abide by, such as the general speed limit to be maintained within the Estate, rules pertaining to parking, etc, by the Applicant prior to the holding of the function.
  • 2.2.10. In the event of the Applicant failing to provide Estate Management with said details regarding a guest list and/or a list of the registration numbers of vehicles that will need to enter the Estate for purposes of attending the function, Estate Management will have the right to refuse such a person or persons and/or vehicle or vehicles access to the Estate;
  • 2.2.11. In the event of a function to be held with more than 10 (ten) guests attending Estate Management will have the right to ensure that only the guests on the guest list provided by the Applicant in writing and only vehicles of which the registration numbers were supplied in writing beforehand to Estate Management by the Applicant, be allowed to enter the Estate. The driver of such a vehicle will be handed a “Functions) laminated card upon entering the Estate by Security and to be kept within the vehicle at all relevant times. Upon wishing to exit the Estate after the function the driver will hand the “Functions” card back to Security who will then open the exit gate for the vehicle to leave the Estate.
  • 2.3. Noise levels during all functions held a private residence will be maintained at a minimum so as not to cause a disturbance to immediate neighbors. Where noise levels do cause a disturbance to any neighbor at any time during the function and it is reported to Estate Management or Security and where the person responsible for the holding of the function is requested by the latter to curtail such noise, this shall be done immediately.
  • 2.4. The Applicant will at all times be responsible to ensure that all guests act in a becoming manner and in accordance with the Conduct Rules of SEMHOA. In the event of a breach of the Conduct Rules the Applicant will be held responsible for the payment of any fine to be imposed by SEMHOA on a guest to the function.
  • 2.5. Any breach of the above mentioned Rules will result in a financial penalty of no less than 2000-00 (Two Thousand Rand) and not more than R25 000-00 (Twenty-five Thousand Rand) to be adjudicated by the Trustee Legal and shall depend on the severity of the non-compliance.
I hereby undertake that
  • No Public Announcement system or any DJ will be utilized.
  • A detailed guest list and list of registration numbers of my guests vehicles will be handed to Estate Management at least 24 hours prior to the function.
  • All guests will be made aware of the SEMHOA rules and I ensure that they abide by the rules.
  • To keep noise levels to a minimum and will curtail such noise if requested to do so by Estate Management or Security.
By my signature hereon I acknowledge that I shall be responsible for any fines or penalties imposed as a consequence of my guests failing to comply with the rules. I am aware of the penalties which may be imposed.

1 DEFINITIONS

1.1 In this document, the following words and phrases shall, unless the context otherwise requires, have
the meanings hereinafter assigned to them:-

  •   1.1.1 “the Act” means the Companies Act, 71 of 2008 ; Amended 27.03.2013
  •   1.1.2 “the association” means the Seaward Master Home Owners Association (SEMHOA); Amended 27.03.2013
  •   1.1.3 “auditors” means the auditors of the association;
  •   1.1.4 “chairman” means the chairman of the Board of Trustees;
  •   1.1.5 “the developer” means the Seaward Development (Pty.) Limited or nominee and its successors-in-title;
  •   1.1.6 “development period” means the period from the establishment of the township and until all the erven defined herein have been sold and transferred by the township owner;
  •   1.1.7 “erf” means an erf in the township, a sectional title unit in the township or a mini subdivision of an erf in the township. In respect of any erf upon which two or more housing units may be built each of such erven shall be regarded as consisting of a number of separate erven equivalent to the number of housing units permitted to be built thereon in terms of the town planning scheme applicable to the estate;
  •   1.1.8 “Association fees and charges” shall include but not limited to, Amended 27.03.2013
  • 1.1.8.1 any levy, special levy, as allowed for in clause 6,
  • 1.1.8.2 basic and consumption charges for sewerage and water as prescribed by the municipal tariffs,
  • 1.1.8.3 any financial penalty as allowed for in terms of clause 7.2,
  • 1.1.8.4 interest on unpaid fees as prescribed in clause 6.10
  • 1.1.8.5 legal and collection fees as prescribed;
  • 1.1.8.6 any fee for any service rendered at the specific request of an owner or emergency work carried out to prevent damage, loss or injury by the Association for and on behalf.
  • 1.1.9 “in writing” means written, printed or lithographed or partly one and partly another and other modes of representing or producing words in a visible form;
  • 1.1.10 “managing agent” means any person or body appointed by the association as an independent contractor to undertake any of the functions of the association;
  • 1.1.11 “the representative member” shall mean the person elected to represent the units in asectional title development.
  • 1.1.12 “the site development guidelines” means the development guidelines set out in the document prepared by Hamilton Architects (Pty) Limited entitled “Seaward Estates – Site Development and Architectural Guidelines” lodged with the developer;
  • 1.1.13 “the environmental principles” means the environmental framework for the Initial Site Assessment, design, rehabilitation and landscaping requirements and all other relevant information approved by the Department of the Environment, Private Bag X07, Pietermaritzburg, and adopted by the Developer and the Seaward Estates Master Home Owners Association;
  • 1.1.14 “the Environmental Management Plan” means the comprehensive plan covering all the phases identified within Seaward Estates approved by the Department of the Environment and adopted by the Developer and the Seaward Estate Master Home Owners’ Association;
  • 1.1.15 “the gate house” means the security gate and buildings at the entrance to the estate;
  • 1.1.16 “estate” means the township shown on General Plan SG No. 2356/99 consisting of erven 1751 to 1823 Ballitoville and, on their proclamation, subsequent phases on the Rem of erf 1478 Ballito Extension 5;
  • 1.1.17 “the parks, areas of conservation significance, and water features” means the existing land resource designated and shown on the General Plan of the township (SG No. 2356/99 ) and any future amendments thereto which may include other areas that may be incorporated, restored and rehabilitated in accordance with the Environmental Management Plan for the benefit of the owners of erven in the township;
  • 1.1.18 “conservation significance” means an area to be designated on the General Plan of the township (SG No. ) which is in the process of being identified by the specialist “wetland study”, further development of parks or eco-trail which may be nominated now or at any time in the future for Registration and afforded conservation protection;
  • 1.1.19 “trustees” means the trustees of the association;
  • 1.1.20 “vice chairman” means the vice chairman of the Board of Trustees.

1.2 Unless the context otherwise requires, any words importing the singular number shall also include the plural number and vice versa and words importing any one gender shall include the other two genders.

 

2 LEGAL STATUS AND LIMITED LIABILITY

2.1 The association is a common law corporate body and as such:-

  • 2.1.1 its assets, liabilities, rights and obligations vest in it independently of its members;
  • 2.1.2 it may not conduct any business for profit or gain and it will use its funds solely for the objects for which it has been established and should it invest its funds on a temporary basis
  • it will have perpetual succession.
  • it may be sued in its own name.

2.2 The members will not by reason of their membership be liable for the liabilities and obligations of the association.

 

3 OBJECTS AND PURPOSE

The general purpose and object of the Association is to promote, advance and protect the collective interests of its Members and facilitate harmonious relationships amongst the Members whilst at the same time ensuring that the Members comply with all the obligations imposed upon them in terms of this Constitution and such other obligations as they may be bound to perform and, without derogating from the generality of the above, more specifically:

3.1 to take transfer of those portions of the acquired, common or purchased property that are to beowned by the Association for the benefit of its Members; [Amended 4.04.2018 AGM]

3.2 provide a secure environment for the members of the association by way of gated controlled access to the Estate by way of the gate house, perimeter fencing and the appointed security staff. [Amended 2012 AGM)

3.3 maintain the aesthetic standards of the Estate by controlling buildings and improvements on the erven in accordance with the Site Development and Architectural Guidelines, the approved Environmental Principles, and Environmental Management Plan and any amendments thereto approved by the Seaward Estates Master Home Owners Association from time to time.

3.4 maintain:-

  • 3.4.1 the gated security access and perimeter electrified fencing;
  • 3.4.2 the roads and verges in the Estate;
  • 3.4.3 the street lighting in the Estate;
  • 3.4.4 the areas of conservation significance, water features, and “wetland” areas and especially to preserve any eco-sensitive areas, plant species or colonies in accordance with the Environmental Management Plan for the benefit of the members and in accordance with any future rehabilitation and amendments approved by the Department of the Environment and adopted by the Seaward Estates Master Home Owners Association from time to time;

3.5 maintain good conduct standards of members and occupiers of erven in the Estate for the general benefit of all members in accordance with the Conduct Rules adopted by the Seaward Estates Master Home Owners Association;

3.6 insure and properly maintain all assets under its control;

3.7 take under its control on the terms and conditions of this constitution, on their proclamation, subsequent phases on the Rem of erf 1478 Ballito Extension 5 referred to in 1.1.13;

3.8 raise levies as provided for herein to fund the carrying out of its objects;

3.9 impose fines and penalties.

 

4 POWERS

The association has plenary powers (including all those normally enjoyed by a registered company), to enable it to achieve its objects, except only for the powers expressly or impliedly excluded by this constitution or by the association’s legal status as a common law corporate body.

 

5 MEMBERSHIP

5.1 Membership of the association shall be limited to the developer in his capacity as such (and represented by not more than 2 nominees) until all the erven are sold and transferred and to any other person who is in terms of the Deeds Registry’s Act reflected in the records of the Deeds Office concerned as the registered owner of an erf.

5.2 Where any erf is owned by more than one person, all the registered owners of that erf shall together be deemed to be one member of the association and have the rights and obligations of one member of the association provided however, that all co-owners of any erf shall be jointly and severally liable for the due performance of any obligation of a member to the association.

5.3 When a member becomes the registered owner of an erf he shall ipso facto become a member of the association and when he ceases to be the owner of an erf, he shall ipso facto cease to be a member of the association.

5.4 No member shall let or otherwise part with occupation of his erf whether temporarily or otherwise, unless he has agreed with a proposed occupier of such erf as a stipulatio alteri in favour of the association that such occupier shall be bound by all the terms and conditions hereof.

5.5 A registered owner of any erf may not resign as a member of the association.

5.6 All the rights and obligations of a member shall not be transferable and every member shall:-

  • 5.6.1 further to the best of his ability the objects and interests of the association;
  • 5.6.2 observe all rules made by the association or the trustees; provided that nothing contained in this constitution shall prevent a member from ceding his rights in terms of this constitution as security to the mortgage of that member’s erf.

5.7 The fact that a member of the association is also a member of a body corporate of a sectional title or any mini sub-development within the Estate shall in no way affect such member’s liability to the association for levies or any other obligation to the association. The association shall, however, without prejudice to its rights against individual members be entitled, for the purposes of convenience to render an account to a body corporate for the individual obligations of its members to the association.

 

6 LEVIES

6.1 The trustees may from time to time impose levies upon the members for the purpose of meeting all the expenses which the association has incurred, or to which the trustees reasonably anticipate the association will be put in the attainment of its objects and pursuit of its business.

6.2 Any levy shall be borne by each member in direct proportion to the number of erven owned by each member.

6.3 Per the definition clause 1.1.7 of an erf, unit freehold of sectional title, the levy raised over the erf will be equal to the development potential of the units that may be erected on the erf as determined by the Town Planning Ordinance enacted by the Local Authority.

6.4 Levies will be raised within TWO calendar months of the owner becoming the registered title holder of an erf.

6.5 The trustees shall not less than 30 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 by such member an estimate in reasonable detail of the amount which shall be required by the association 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 trustees may include in such estimate an amount to be held in reserve to meet anticipated expenditure not of an annual nature.

6.6 Each notice to each member shall specify the contribution payable by that member to such expenses and reserve fund.

6.7 Each annual levy shall be due at the commencement of every financial year. Where a member is deemed to be in “good standing” the annual levy may be paid in equal monthly instalments, due in advance on the first day of each and every month of each financial year. Amended 27.03.2013

  • 6.7.1 A member in “good standing”, for the purposes of clause 6.7 only, shall be a member who has discharged all of his financial obligations to the Association as at the end of the preceeding financial year, or a member who has made adequate arrangements to meet any fees due, owing and payable to the Association. Amended 27.03.2013

6.8 In the event of the trustees for any reason whatsoever failing to prepare and serve the estimate referred to above timeously, every member shall until service of such estimate as aforesaid continue to pay the levy previously imposed and shall, after such service pay such levy as may be specified in notice in respect of the new levy.

6.9 The trustees may from time to time impose special levies upon members in respect of all such expenses which were not included in the trustees’ original estimates.

6.10 The trustees shall be empowered in addition to such other rights as the association may have in law to charge interest on arrear levies and other fees and charges raised by the Association at a rate not exceeding the prime rate charged by BOE Bank Limited now operating as Nedbank Limited. Amended 27.03.2013

  • 6.10.1 Where arrear levies and or other fees and charges raised by the Association, are outstanding in excess of the number of days specified in the credit control policy as approved by the Trustees from time to time, the debt may be handed over for legal collection, where this occurs the debtor shall be indebted to the Association for; Amended 27.03.2013
  • 6.10.1.1 The amount due and payable to the Association at the time of handover and;
  • 6.10.1.2 Any legal or collection costs attracted by such debt and;
  • 6.10.1.3 At the discretion of the Trustees, levies and basic service charges based on the tariffs as at the time of legal handover, for the balance of the Association’s financial year in which legal handover occurs.

6.11 Any fees or charges due by a member shall be a debt due by him to the Association. Notwithstanding that a member ceases to be such, the association shall have the right to recover arrear levies and interest from him. No levies or interest paid by a member shall under any circumstances be refundable by the association to such person upon such person ceasing to be a member. Further, a member on ceasing to be such shall have no claims whatsoever on any other monies held by the association. A member’s successor in title to an erf shall be liable as from the date upon which he becomes a member pursuant to the transfer of such erf, to pay the levy and interest due thereon attributable to that erf. Amended 27.03.2013

6.12 The developer shall be liable for levies on the same basis as any other member.

6.13 The trustees may enter into an agreement or agreements with the developer for the provision of a capital sum and/or equipment to the association in lieu of levies.

6.14 No transfer of an erf shall be registered unless a certificate has been issued by the Association that

  • 6.14.1 All levies fees and charges due to it in respect of the erf have been paid. Amended 27.03.2013
  • 6.14.2 The purchaser has paid three monthly levies, basic service charges, the Levy Stabilisation Fund charge and any other amounts required for levy consent. Amended 27.03.2013

 

7 RULES

7.1 Subject to any restriction imposed or direction given at a general meeting of the association, the trustees may from time to time make rules in regard to the enforcement of the objects of the association set out in paragraph 3 hereof. To the extent that any rule made in terms of this constitution conflicts with any rule of any body corporate of a development within the township, the rule made in terms of this constitution shall prevail.

7.2 For the enforcement of any of the rules made by the trustees in terms hereof, the trustees “or their nominated representative “may:-

7.2.1 give notice of the member concerned requiring him to remedy any breach of the rules within a reasonable time;

  • 7.2.2 to take or cause to be taken such steps as they may consider necessary to remedy the breach of the rule of which the member may be guilty and debit the costs of doing so to the member concerned which amount shall be deemed to be a debt owing by the member concerned to the association;
  • 7.2.3 Impose a system of fines/or other penalties. Where the non-compliance of any rule defined within the Municipal Fine structure, such fine shall be no greater than the existing Municipal Fines for such non-compliance. Where the non-compliance does not fall within the Municipal Fine Structure, the amounts of such fines shall be determined by the Trustees but shall not exceed R5 000 without the resolution of the full board of Trustees.
  • 7.2.4 impose a system of fines and/or other penalties. The amounts of such fines shall be reviewed and confirmed at each annual general meeting of the association.
  • 7.2.5 and/or with the written permission of the full board of trustees take such other action including proceedings in court as they may deem fit and defend any action taken by any member or any other person.

7.3 In the event of the trustees instituting any legal proceedings against any member or resident within the Estate for the enforcement of any of the rights of the association in terms hereof, the association shall be entitled to recover all legal costs so incurred from the member or resident concerned, including costs calculated as between attorney and own client, collection commissions, expenses and charges incurred by the association in obtaining the recovery of arrear levies, or any other arrear amounts due and owing by such member to the association , or in enforcing compliance with these rules, the conduct rules or the act.

7.4 In the event of any breach of the rules by the members of any member’s household or his guests or lessees, such breach shall be deemed to have been committed by the member himself, but without  prejudice to the aforegoing, the trustees may take or cause to be taken such steps against the person actually committing the breach as they in their discretion may deem fit.

7.5 In the event of any member disputing the fact that he has committed a breach of any of the rules, a committee of three (3) trustees appointed 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.

7.6 Any fine imposed upon any member shall be deemed to be a debt due by the member to the association and shall be recoverable by ordinary civil process.

7.7 Notwithstanding anything to the contrary herein contained, the trustees may in the name of the association 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.

7.8 The association may in general meeting itself make any rules which the trustees may make and may in general meeting vary or modify any rules made by it or by the trustees from time to time.

 

8 TRUSTEES

8.1 There shall be a Board of Trustees of the association which shall consist of not less than five (5) nor more than ten (10) members, the actual number of Trustee each year shall be recommended by the Chairman of the Association, at the Annual General Meeting of the Association. Amended 27.03.2013

8.2 A trustee shall be an individual but need not himself be a member of the Association. A trustee, 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.

8.3 The first trustees shall, on the formation of the Association, be appointed by the developer.

8.4 During the development period at least two (2) of the trustees shall be nominees of the developer.

8.5 Trustees, other than the initial trustees, shall be elected by the members in general meeting. For a period of temporary absence by a trustee, the trustees may appoint an alternate trustee. Amended 27.03.2013

8.6 Nominations for trustees shall be made by not less than four (4) members in good standing, shall be in writing, bearing the nominee’s acceptance and lodged with the trustees not less than thirty (30) days prior to the general meeting at which an election for trustees is to take place. Amended 27.03.2013

9 REMOVAL AND ROTATION OF TRUSTEES

9.1 Save as set out in clause 9.3, and save for the trustees appointed by the developer in terms of 8.3, each trustee shall continue to hold office from the date of his appointment until the end of the annual general meeting next following his appointment, at which meeting each trustee shall be deemed to have retired from office but will be eligible for re-election to the Board of Trustees at such meeting.

9.2 A trustee shall be deemed to have vacated his office upon:-

  • 9.2.1 his having become disqualified to act as a director in terms of the provisions of the Act;
  • 9.2.2 his being removed from office as provided in Section 220 of the Act;
  • 9.2.3 in the event of his being a member of the association, his being disentitled to exercise a vote in terms of clause 20.2 below.

9.3 Upon any vacancy occurring in the Board of Trustees 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 Trustees, provided, however, that, if the trustee who vacates his office as aforesaid was a nominee of the developer, the developer shall be entitled to nominate a trustee in his stead.

 

10 CHAIRMAN AND VICE CHAIRMAN

10.1 The trustees shall within 14 days after each annual general meeting appoint from their number a chairman and vice chairman, who shall hold their respective offices until the end of the next annual general meeting, provided that the office of chairman or vice chairman shall ipso facto be vacated by a trustee holding such office upon his ceasing to be a trustee for any reason. No one trustee 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 Trustees shall immediately appoint one of their number as replacement in such office. During the development period the chairman shall be elected by the nominees of the developer.

10.2 Except as otherwise provided, the chairman shall preside at all meetings of the trustees and at all general meetings of members and, in the event of his not being present within 5 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.

 

11 TRUSTEE’S EXPENSES

Trustees shall be entitled to recover all reasonable and bona fide expenses incurred by them respectively in or about the performance of their duties as trustees. Save as aforesaid, trustees shall not be entitled to any remuneration for the performance of their duties in terms hereof.

 

12 POWERS OF TRUSTEES

12.1 Subject to the express provisions of these presents, the trustees shall manage and control the business and affairs of the association, 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 association and do all such acts on behalf of the association as may be exercised and done by the association and as are not by the Act or by these presents required to be exercised or done by the association in general meetings, subject however, to such rules as may be made by the trustees from time to time.

12.2 Save as specifically provided in these presents, the trustees shall at all times have the right to engage on behalf of the association the services of accountants, auditors, attorneys, advocates, architects, engineers, a managing agent and any other professional firm or person or other employees whatsoever for any reasons deemed necessary by the trustees and on such terms as the trustees shall decide.

12.3 The trustees shall further have power to make rules as provided for herein.

12.4 The Board of Trustees shall have the right to co-opt onto the board any person or persons chosen by it. A co-opted trustee need not necessarily be a member of the association. A co-opted trustee shall hold office until the end of the next annual general meeting after his co-option when he shall retire but shall be eligible for election as a trustee, or in the event of his not being elected shall against be eligible for co-operation by the Board of Trustees.

12.5 The trustees shall be entitled 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, with further power to vary or revoke such appointments and delegations as the trustees may from time to time deem necessary.

 

13 PROCEEDINGS OF TRUSTEES

13.1 The trustees may on 7 days written notice given by any one trustee to the other trustees, meet together for the dispatch of business, adjourn and otherwise regulate their meetings as they think fit, subject to any provisions of these presents.

13.2 The quorum necessary for the holding of any meetings of the trustees shall be a majority present personally; provided however that, during the development period, the presence of at least one nominee of the developer shall be necessary at all meetings of trustees in order to form a quorum. Any resolution of the Board of Trustees shall be carried on a simple majority of all votes cast. In the case of an equality of votes for and against any resolution, the resolution shall be deemed to have been defeated.

13.3 The trustees shall cause minutes to be kept of every trustees’ meeting, which minutes shall, without undue delay after the meeting has closed, be reduced to writing and certified correct by the chairman. All minutes of trustees’ meetings shall, after certification, be placed in a trustee’s minute book to be kept in accordance with the provisions of the law relating to the keeping of minutes of meetings of directors of companies. The trustees’ minute book shall be open for inspection at all reasonable times by any trustee, the auditors, the members and the managing agent.

13.4 Save as provided in these presents, the proceedings of any trustees’ meeting shall be conducted in such reasonable manner and form as the chairman of the meeting shall decide.

13.5 A resolution signed by all the trustees shall be valid in all respects as if it had been duly passed at a meeting of the Board of Trustees.

 

14 GENERAL MEETINGS OF THE ASSOCIATION

14.1 The association shall within six (6) months after the end of each financial year hold a general meeting as its annual general meeting in addition to any other general meetings during that year, and shall specify the meeting as such in the notices in terms of clause 15 herein, calling the meeting.

14.2 Such annual general meeting shall be held at such time and place as the trustees shall decide from time to time.

14.3 All general meetings other than annual general meetings shall be called extraordinary general meetings.

14.4 The trustees may, whenever they think fit, convene an extraordinary general meeting.

 

15 NOTICES OF MEETINGS

15.1 An annual general meeting and a meeting called for the passing of a special resolution, shall be called by sixty (60) clear days’ notice in writing at least, and an extraordinary general meeting, other than one called for the passing of a special resolution, shall be called for by fourteen (14) clear days’ notice in writing at the least. In each case the notice shall be exclusive of the day on which it is given, and shall specify the place, the day and hour of the meeting. Amended 27.03.2013

15.2 The agenda for an Annual General Meeting and a meeting called for the passing of special business shall be served in writing, twenty one (21) clear days prior to the meeting. Amended 27.03.2013

15.3 In the case of special business, in addition to any other requirements contained in these presents, the general nature of that business, and in the case of a special resolution, the terms and effect of the resolution and the reasons for it shall be given in the manner hereinafter mentioned or in such other manner, if any, as may be prescribed by the trustees to such persons as are under these presents entitled to receive such notices from the association.

15.4 A general meeting of the association shall notwithstanding that it is called by shorter notice than that specified in these presents be deemed to have been duly called if it is so agreed:-

  • 15.4.1 in the case of a meeting called as the annual general meeting by all the members entitled to attend and vote thereat; and
  • 15.4.2 in the case of an extraordinary general meeting, by a majority in number of the members having a right to attend and vote at the meeting, being a majority together holding not less than 95% of the total voting rights of all members.

15.5 Insofar as special notice may be required of a resolution, whether by any provision of the Act or these presents, then the provisions of Section 186 of the Act shall apply.

15.6 The association shall comply with the provisions of Section 185 of the Act as to giving of notices and circulating statements on the requisition of members.

15.7 The accidental omission to give notice of a meeting or of any resolution, or to give any other notification, or present any document required to be given or sent in terms of these presents, or in terms of the Act, or the non-receipt of any such notice, notification or document by any member or other person entitled to receive the same, shall not invalidate the proceedings at, or any resolution passed at any meeting.

 

16 QUORUM

16.1 No business shall be transacted at any general meeting unless a quorum is present when the meeting proceeds to business. During the development period, the quorum necessary for the holding of any general meeting shall be such of the members entitled to vote as together for the time being represent the votes of the developer, and 15% of votes in number from all other members of the association entitled to vote for the time being. After the development period, the quorum shall be such of the members entitled to vote as together for the time being represent the votes of 15% in number of all members entitled to vote for the time being.

16.2 If within half an hour from the time appointed for the holding of a general meeting a quorum is not present, the meeting shall stand adjourned to the same day in the next week at the same place and time or at such other place as the chairman of the meeting shall appoint. If at the adjourned meeting a quorum is not present within half an hour from the time appointed for holding the meeting, the members present shall be a quorum.

 

17 AGENDA AT MEETINGS

17.1 In addition to any other matters required by the Act or these presents to be dealt with at an annual general meeting, the following matters shall be dealt with at every annual general meeting:-

  • 17.1.1 the consideration of the chairman’s report;
  • 17.1.2 the election of trustees;
  • 17.1.3 the consideration of any other matters related at the meeting, including any resolutions proposed for adoption by such meeting, and the voting upon any such resolutions;
  • 17.1.4 the consideration of the accounts of the association for the preceding financial year;
  • 17.1.5 the consideration of the report of the auditors, the fixing of remuneration for the auditors and the appointment of the auditors for the ensuing year.

17.2 No business shall be dealt with at any general meeting unless written notice has been given to the trustees not less than thirty (30) days before such meeting, in the form provided for is terms of clause 15.3 above by the person proposing to raise such business of his intention to do so; provided however, that the chairman may on ordinary resolution of the meeting relax this condition. Amended 27.03.2013

 

18 PROCEDURE AT GENERAL MEETINGS

The chairman may, with the consent of any general meeting at which a quorum is present and shall if so, directed by the meeting, adjourn a meeting from time to time and place to place. No business shall be transacted at any adjourned meeting other than business which could have been transacted at the meeting from which the adjournment took place. Whenever a meeting is adjourned for 10 days or more, notice of the adjourned meeting shall be given in the same manner as of an original meeting. Save as aforesaid, the members shall not be entitled to any notice of adjournment or of the business to be transacted at an adjourned meeting.

 

19 PROXIES

19.1 A member may be represented at a general meeting by a proxy, who need not be a member of the association. The instrument appointing a proxy shall be in writing signed by the member concerned or his agent, duly authorised in writing, but need not be in any particular form provided that, where a member is more than one person, a majority of those persons shall sign the instrument appointing on proxy on such member’s behalf. Amended 27.03.2013

19.2 The instrument appointing a proxy and the power of attorney or any other authority under which it is signed shall be tabled at the commencement of the meeting at which the person named in the instrument proposes to vote. No instrument appointing a proxy shall be valid after the expiration of 12 months from the date of its execution. Amended 25.11.2015

19.3 A vote given in accordance with the terms of a proxy shall be valid notwithstanding the previous death of the principal or revocation of the proxy, provided that no intimation in writing of the death or revocation had been received by the trustees at any time before a vote is taken in respect of which the proxy exercises such vote. Amended 25.11.2015

 

20 REPRESENTATION AT GENERAL MEETINGS

20.1 At every general meeting:-

  • 20.1.1 every member, including the developer, in person or by proxy, is entitled to vote. The value of the vote shall be in proportion to the number of erven owned by the member; Amendment 25.11.2015 according to SGM meeting minutes held 25 November 2015 Resolution 9 on page 5 was passed unanimously due to Durban high court ruling 22.07.2015 apropos Joint Residential Representative updated 11.03.2020
  • 20.1.2 if an erf is registered in the name of more than one person, then all such co-owners shall share the voting proportion attached to the erf or erven as described in clause 20.1.1.
  • 20.1.3 members who are members by virtue of ownership of a unit in a sectional title development or through ownership of a mini-sub “or private residential block shall exercise their votes, raise issues or table resolutions per clause 20.1.1. Amendment 25.11.2015 according to SGM meeting minutes held 25 November 2015 Resolution 9 on page 5 was passed unanimously due to Durban high court ruling 22.07.2015 apropos Joint Residential Representative updated 11.03.2020

20.2 Save as expressly provided for in these presents, no person other than a member duly registered and who shall have paid every levy and other sum, if any, which shall be due and payable to the Association in respect of or arising out of his membership and who is not under suspension, shall be entitled to be present or to vote on any question, either personally or by proxy at any general meeting. Amended 25.11.2015

20.3 At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded by the chairman and, unless a poll is so demanded, a declaration by the chairman that a resolution has, on a show of hands, been carried or carried unanimously or by a particular majority or negated, and an entry to that effect in the book containing the minutes of the proceedings of the Association, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against such resolution. The demand for a poll may be withdrawn.

20.4 If a poll is duly demanded it shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. Scrutineers shall be elected to determine the result of the poll. In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place, or at which the poll is demanded, shall be entitled to a second or casting vote.

20.5 A poll demanded on the election of a chairman or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chairman of the meeting directs. The demand for a poll shall not prevent the continuation of a meeting for the transaction of any business other than the question upon which the poll has been demanded.

20.6 Every resolution and every amended resolution proposed for adoption by a general meeting shall be seconded at the meeting and, if not so seconded, shall be deemed not to have been proposed.

20.7 An ordinary resolution (that is a resolution other than a special resolution) or the amendment of any ordinary resolution shall be carried on a simple majority of all votes cast. In the case of equality of votes for and against any resolution, the resolution shall be deemed to have been defeated.

20.8 Unless any member present in person or by proxy at a general meeting shall, before the closure of the meeting, have objected to any declaration made by the chairman of the meeting as to the result of any voting at the meeting, whether by show of hands or otherwise, or to the propriety or validity of the procedure at such meeting, such declaration by the chairman shall be deemed to be a true and correct statement of the voting, and the meeting shall in all respects be deemed to have been properly and validly constituted and conducted. An entry in the minutes to the effect that a motion has been carried or lost, with or without a record of the number of votes recorded in favour of or against such motion, shall be conclusive evidence of the votes so recorded. Amended 25.11.2015

 

21 ACCOUNTS

21.1 The accounts and books of the association shall be open to inspection by members at all reasonable times during business hours.

21.2 Once in each financial year the accounts of the association shall be examined, and the correctness thereof ascertained by auditors. The duties of the auditors shall be regulated in accordance with Chapter 10 of the Act.

 

 

22 SERVICE OF NOTICES

A notice may be served by the Association by hand delivery, pre-paid registered post or electronic mail upon any member at the address of any unit owned by him unless the member shall have notified the association of another address for service of notice. Any notice served shall be deemed to have been served on the day but one following that on which the notice was sent. Amended 27.03.2013

 

 

23 INDEMNITY

Every trustee, servant, agent and employee of the association and any managing agent, his employees, nominees or invitees, shall be indemnified by the association against all costs, losses and expenses (including travelling expenses) which such person or persons may incur or become liable for by reason of any contract entered into or any act or deed done by such person or persons in the discharge of their respective duties, including in the case of a trustee, his duties as chairman or vice chairman. Without prejudice to the generality of the aforegoing, the association shall specifically indemnify every such person against all losses of whatsoever nature incurred arising out of any bona fide act, deed or letter done or written by him jointly or severally in connection with the discharge of his duties.

 

 

24 AMENDMENT OF THIS CONSTITUTION, FORMATION SECTION 21 COMPANY

24.1 This constitution may be amended by resolution of a members’ meeting passed by a majority of not less than 75% of the votes cast.

24.2 On the basis of a resolution passed in terms of clause 24.1 the association may convert itself to a Section 21 company, the Articles of Association of which shall, mutatis mutandis be the same as the constitution of the association.

 

25 MERGER

25.1 The association may merge with any other body with similar objects, by resolution of a members’ meeting.

25.2 In this event, the association’s net assets after discharge of its liabilities, together with its rights and obligations under this constitution and under the conditions of title of units in the association area will vest in the merged entity.

 

 

26 DISSOLUTION

26.1 The association may dissolve itself by resolution passed by a majority of not less than 75% of the votes cast at a members’ meeting.

26.2 In this event:-

  • 26.2.1 the trustees will act as liquidators.
  • 26.2.2 the association’s net assets after discharge of its liabilities will be applied to repay the most recent levies paid by members and any balance after all levies have been repaid will be distributed in the liquidator’s discretion to one or more public charities.

 

 

27 DEVELOPMENTS WITHIN THE TOWNSHIP AREA

Should any owner of an erf wish to develop the erf as a sectional title or mini sub-development such owner shall submit to the association for approval the proposed house rules to be made applicable to the sectional title or  mini sub-development and such house rules shall not be adopted for such development until the association’s approval has been given in writing.

SOCIAL RULES AND REGULATIONS – ANIMALS

1. Definitions

In these rules unless inconsistent with the context –

  • “Poultry” means and includes fowls, ducks, geese, turkeys, guinea fowl, pigeons and parrots;
  • “Animal” means and includes any domesticated pet, cat, dog, or any of any other animal reptile or bird;
  • “Dog” means the male or female of this species;
  • “Ferocious or vicious” shall mean animal, bird or reptile which has bitten or attempted to bite a person or animal or damages another persons’ property other than in defense of itself or its custodian.;
  • “Nuisance” unless otherwise provided for in these bylaws, means any condition, thing, act or sound which is offensive or injurious or which tends to prejudice the safety, good order, peace or health or the rights or reasonable comfort, convenience, peace or quiet of the general public within the area;
  • “Premises” shall be any building together with the land on which the same is situated and adjoining land or building used in connection therewith or any land without buildings thereon;
  • “Stray or ownerless” any dog or animal not wearing a badge or other means of identification whereby the owner can be traced and appears to be ownerless, shall be deemed to be ownerless.
  • “Valid rabies certificate” means valid rabies, inoculation certificate, to mean a certificate of inoculation, issued by a registered veterinarian within the previous two-year period;
  • “Veterinarian” means a person registered as such under the veterinary and Para-Veterinary Professions Act, Act No. 29 of 1982.

2. Association permission to keep an animal

2.1. No owner or occupier may keep any pet or other animal, bird or reptile on any premises with Seaward Estates without the written consent of the Association, upon submission of such application proof of a valid rabies certificate shall be required in respect of dogs.

With the proviso that where such premises is zoned Sectional Title housing written permission from the body corporate, of such Sectional Title development shall first be obtained;

2.2. Consent by the Association may be given subjected to conditions which may be altered or withdrawn at any stage by the Association.

2.3. Should consent from the Association to keep an animal be revoked, the owner of such animal, upon receiving written notice from the Association, shall within the time stipulated in such notice, remove such animal from the Estate.

2.4. As of the date of promulgation of the SEMHOA Rules, new applications for permission to house animals, shall only be considered for a maximum of (2) two animals per unit, with the proviso that

  • 2.4.1. Animals with a body weight in excess of 20 kg each, shall not be permitted with the proviso that.
  • 2.4.1.1. Any owner or occupier who has received permission, prior to the promulgation of the SEMHOA Rules, to keep more than (2) dogs, or dogs with a body weight exceeding 20 kg shall be permitted to keep their pet but shall not be permitted to replace such pet upon it’s death unless clause 2.4.1 above is complied with.
  • 2.4.1.2. Any occupier who is NOT an owner, who has received permission to keep dogs which are not in compliance with sub paragraph 2.4.1. above, shall be permitted to keep their dogs until the expiration of their lease and shall require to dispose of their dogs should they wish to renew their lease.

2.5. Any owner or occupier who has received permission to keep an animal, shall ensure that such pet is confined within the property by means of adequate fencing which is accordance with the Association rules.

2.6. A dog for which no valid rabies inoculation certificate is held shall not be permitted to be kept on the Estate.

3. Prohibited Animals

No person shall keep upon any premises within the boundaries of Seaward Estates.

  • 3.1. any animal, bird or reptile which is deemed dangerous, ferocious or vicious.
  • 3.2. cattle or any horse, mule, ass or other draught animal or any pig, sheep or goat or any form of live poultry;
  • 3.3. any wild undomesticated animal, bird or reptile.
  • 3.4. any hive or swarm of bees.

4. No person shall keep on any premises within the Seaward Estates any animal or reptile (whether male or female)

  • which is ferocious or vicious.
  • 4.2. which has a propensity to rush at any person, animal or vehicle, or which is generally a nuisance to the public on any premises or that are not properly surrounded by a fence of such a nature as to ensure that such dog is confined to such unless such dog is kept on a leash;
  • 4.3. In respect of dogs, any bitch in season unless she is kept under proper control so as to prevent her from being a nuisance to the neighbours or the general public. The Association may by notice in writing direct to the owner or person in control to Animal Registration Form_v2 Page 3 June 2019 Version 2 remove such bitch to a place in which suitable accommodation can be provided for the housing of such bitch and at the owner’s expense and shall require it to be kept for such a period until she is out of season;
  • 4.4. Any dog or animal which by reason of its barking, yelping, howling or whining or other sound, which creates a nuisance or disturbs the general public’s peace.
  • 4.5. Which bites or savages any person unless it can be proved that such bite or savaging was in reasonable defense of the owner or person responsible for the keeping of the dog, or their dependents or property, and that the person bitten seriously threatened the owner, property or dependents of the owner or person keeping such animal;
  • 4.6. attacks, runs at or jumps at any person, unless it can be proved that such attack, running or jumping was in reasonable defense of the owner or person responsible for the keeping of the animal, or their dependents or property, and that the person attacked, run at or jumped at seriously threatened

5. Without in any way detracting from or diminishing in the liability of the owner of or the person keeping any animals for a breach of these rules:

  • 5.1. the owner of any premises if he resides on such premises shall be deemed to be keeping an animal on such premises;
  • 5.2. if the owner of the premises does not reside on the premises any person over the age of eighteen years who resides on such premises shall be deemed to be keeping an animal on such premises;
  • 5.3. in the case of any non compliance in terms of these rules it shall be competent for the true owner of the dog or animal in question to be found in contravention of the rules or alternatively, the person keeping or deemed to be keeping the dog in question to be served with a financial penalty therefore.

6. The Association may, in addition to imposing penalties against the owner, call upon an authorised officer to seize any dog or animal which is vicious or dangerous or which is creating a disturbance by barking or otherwise.

7. Any animal which is found at large and unattended on Seward Estates, or in a diseased state and apparently ownerless, may be seized by an officer empowered in terms of Kwa Dukuza Municipal By Laws and impounded and if found dangerous, vicious or diseased, may be destroyed in terms section 5 of the Animal Protection Act, (Act No. 71 of 1962).

8. No person shall allow an animal, being his property or in his charge to be in any common area within Seaward Estates, unless it is on a leash or otherwise controlled by an adult, to ensure that it will not in any circumstances endanger the safety or any person or traffic making use of such common area.

9. No person shall use or cause or allow any premises in the Estate to be used for the accommodation of animals for reward.

10. No person, shall by any means willfully frighten, tease or enrage any animal.

11. the owner or person in charge of any animal which has died shall be responsible for its proper burial, at such place as may be approved by the Municipality.

12. No person shall keep any animal or bird, other than a domestic pet or small bird in a cage, in any sleeping or living apartment in any dwelling.

13. No person shall permit any dog or other animal, of which he is the owner or in charge, to rush at pedestrians, motorcars or cyclists or other road users, or permit such animal to interfere with the comfort or safety of any member of the public.

14. Offences and penalties:

Any person who contravenes any provision of these rules or who fails to comply with the requirements thereof shall be guilty of a non-compliance shall be liable to the penalties determined by the Association.

  • 14.1. Any person who has on his premises within Seaward Estates, any animal or bird which, by reason of continued barking, yelping, howling, crowing, or making other noises, disturbs the public peace or is a source of nuisance to the neighbourhood, after the expiration of a reasonable time to be stipulated in a notice signed by the Association and served upon him, requiring him to abate such disturbance or nuisance, shall be guilty of a non compliance of the rules and shall be liable to the penalty prescribed.
  • 14.2. If any animal is believed to be fall within clause 4 and the sub clauses pertaining thereto, or where notice has been served in terms of 14.1 above and has not been complied with, it shall be competent for the Association, by written notice to revoke permission for the animal to be housed on Seaward Estates. Should such animal not be removed within the time stipulated in such notice, the Association may at its sole discretion:
  • 14.2.1. In the case of a registered member of the Association, levy a financial penalty prescribed.
  • 14.2.2. In the case of a person renting accommodation the Association shall have the right to demand that the lease agreement be summarily cancelled and that such occupier is evicted from the Estate.

SOCIAL RULES AND REGULATIONS – FURNITURE

1. No furniture deliveries using vehicles larger than 3 tons shall be permitted within the Estate. Vehicles larger than three tons shall require to park in the areas designated for the off‐loading of furniture deliveries and a shuttle service using a fixed axle vehicle shall be required.

2. Vehicles offloading furniture shall be parked in such a manner that there is NO obstruction to the entrance and exit gates, or the Main Road.

3. No furniture deliveries or collection will be permitted to enter the Estate before 07h00 on a weekday or before 09h00 on a weekend or public holiday. All deliveries shall require to be completed before 17h00 on any day.

4. No delivery vehicles shall be permitted to stay overnight within the Estate.

5. The resident shall be responsible for any costs incurred as a result of damages to any of the services on the Estate which may occur during the delivery or collection of furniture; and it shall be incumbent upon them to claim any such damage claims back from their contractors.

6. SEMHOA shall not accept any liability for claims arising from demurrage or delays, or any other reason, where these rules are enforced.

7. It is incumbent upon the resident to dispose of any boxes or packaging materials, these items may NOT be included in household or garden refuse for collection by the service provider. These items may be disposed of at the Dolphin Coast Waste Management site at Shakashead (032 946 0857.)

Rules for the holding of private functions at private residences within Seaward Estates

1. In the event of a private function to be held at any private residence within Seaward Estate and that will be attended by a maximum of 10 (Ten) persons (whether it be residents or non-residents of Seaward Estates) will not require a written application for consent for the holding of such a function to the Seaward Estate Management on condition that the function will not involve the use of public announcement systems and/or the use of a DJ and that it will be subject to the SEMHOA Rules applicable to the holding of such a function and inclusive of the Rules pertaining to nuisance and parking.

2. In the event of a function to be held at a private residence within Seaward Estates that will be attended by more than 10 (Ten) persons (irrespective of the fact whether it will consist of resident or non-residents of Seaward Estates), the following conditions will be applicable :

  • 2.1. The Applicant, who must be the owner of the property concerned or the legal occupier thereof, will have to make a written application via the Estate Management to SEMHOA at least 21 (twenty-one) days prior to the holding of such function for written consent to have such a function at the said premises;
  • 2.2. The written application will clearly indicate the following :
  • 2.2.1. Full details of the nature and purpose of the function:
  • 2.2.2. The exact number of people that will be attending the function;
  • 2.2.3. The number of toilets available in the unit (To be noted that one such facility is required for every ten persons attending);
  • 2.2.4. The exact amount of vehicles that will require parking on the premises concerned as well as an undertaking to provide Estate Management with the registration number of each vehicle that will have to enter Seaward Estates for this purpose at least 24 (twenty-four) hours prior to the date of the function;
  • 2.2.5. In the event of the Applicant not being the owner of the said property, that the written consent to the function being held on the property by the rightful owner thereof had been obtained and that it is attached to the written application;
  • 2.2.6. That a signed consent form (to be procured from Management Offices upon request) had been obtained from all adjoining property owners or residents beforehand and that the latter are attached to the written application;
  • 2.2.7. An undertaking that no Public Announcement Systems or any DJ will be utilized during the function;
  • 2.2.8. An undertaking that a detailed guest list, indicating the names and surnames of each and every guest that will be attending the function, will be provided to Estate Management in writing at least 24 (twenty-four) hours prior to the holding of the function;
  • 2.2.9. An undertaking that all guests that are non-residents of Seaward Estates will be made aware of all the relevant SEMHOA Rules applicable to the holding of such a function as well as other rules that the guests will have to abide by, such as the general speed limit to be maintained within the Estate, rules pertaining to parking, etc, by the Applicant prior to the holding of the function.
  • 2.2.10. In the event of the Applicant failing to provide Estate Management with said details regarding a guest list and/or a list of the registration numbers of vehicles that will need to enter the Estate for purposes of attending the function, Estate Management will have the right to refuse such a person or persons and/or vehicle or vehicles access to the Estate;
  • 2.2.11. In the event of a function to be held with more than 10 (ten) guests attending Estate Management will have the right to ensure that only the guests on the guest list provided by the Applicant in writing and only vehicles of which the registration numbers were supplied in writing beforehand to Estate Management by the Applicant, be allowed to enter the Estate. The driver of such a vehicle will be handed a “Functions) laminated card upon entering the Estate by Security and to be kept within the vehicle at all relevant times. Upon wishing to exit the Estate after the function the driver will hand the “Functions” card back to Security who will then open the exit gate for the vehicle to leave the Estate.
  • 2.3. Noise levels during all functions held a private residence will be maintained at a minimum so as not to cause a disturbance to immediate neighbors. Where noise levels do cause a disturbance to any neighbor at any time during the function and it is reported to Estate Management or Security and where the person responsible for the holding of the function is requested by the latter to curtail such noise, this shall be done immediately.
  • 2.4. The Applicant will at all times be responsible to ensure that all guests act in a becoming manner and in accordance with the Conduct Rules of SEMHOA. In the event of a breach of the Conduct Rules the Applicant will be held responsible for the payment of any fine to be imposed by SEMHOA on a guest to the function.
  • 2.5. Any breach of the above mentioned Rules will result in a financial penalty of no less than 2000-00 (Two Thousand Rand) and not more than R25 000-00 (Twenty-five Thousand Rand) to be adjudicated by the Trustee Legal and shall depend on the severity of the non-compliance.

CSOS : Internal Remedies

CSOS can only intervene in a dispute after all internal remedies within a scheme have been exhausted. This means that community schemes must establish their own internal and effective dispute resolution mechanisms, as applicants will be required to submit evidence to CSOS showing that they have attempted to resolve the matter internally but failed.