Wednesday, March 5, 2008
COMPANIES ACT 1973
ARTICLES OF ASSOCIATION
OF A COMPANY NOT HAVING A SHARE CAPITAL
AND NOT ADOPTING SCHEDULE (1)
[Section 60(1); Regulation 18]
[Association Incorporated under Section 21]
The Standard Articles of Association contained in Table A or B of Schedule 1 to the Act shall not be applicable to this Company; whose Articles of Association shall be in the form set out below.
1.1 In these Articles, unless the context clearly indicates otherwise:
1.1.1 The Act means the Companies Act, No. 61 of 1973 as amended from time to time.
1.1.2 “The Company” means
1.1.3 “The Board” means the Board of Directors of the Company.
1.1.4 Duly Certified in relation to copies, shall mean a copy certified by an appropriate Public Officer or Notary Public; or such other form of certification as the directors may from time to time in their sole discretion accept.
1.1.5 “Month” means calendar month.
1.1.6 The Office means the registered office of the Company.
1.1.7 Republic means the
1.1.8 Secretary means any person duly appointed from time to time to perform the duties of the secretary of the Company.
1.1.9 These Articles means the Articles of Association as originally framed or as altered from time to time by special resolution, and in accordance with the Memorandum.
1.1.10 Words and expressions contained in these Articles shall bear the same meanings as are assigned to them by The Act, as amended from time to time.
1.1.11 Expressions with reference to writing, shall be construed as including reference to printing, lithography, photographs and other modes of representing or reproducing words in visible form.
1.1.12 Words importing the singular shall include the plural; words importing the masculine, feminine or neuter shall include the others of such genders; and words importing persons shall include bodies corporate, and vice versa.
The initial members shall be the subscribers to these Articles.
3 ADMISSION TO MEMBERSHIP
3.1 The directors shall ensure that, at all times there are a minimum of seven (7) members of the Company. Should the number of members fall below the stipulated minimum, the Directors shall fill the necessary vacancy/ies within a period of sixty (60) days of such vacancy/ies having occurred.
3.2 Further members may be admitted by the Board, in its sole and absolute discretion, subject to any such qualifications and obligations of membership which the Board may stipulate from time to time. The Board may likewise decline to admit to membership to any intended member notwithstanding his/her willingness and ability to fulfil any conditions and obligations of membership.
4 TERMINATION OF MEMBERSHIP
4.1 Notwithstanding anything to the contrary contained herein, membership of the Company may be terminated by the Board by resolution of at least three-quarters (:) of the members of the Board, at its sole discretion, should it deem this to be in the best interests of the Company.
4.2 Membership of the Company may be terminated by the Board should a member fail to comply with any conditions and obligations of membership or fail to observe the provisions of these Articles, upon the expiration of a period of three (3) months reckoned from the date of written notice by the Company to a member concerned; save that the Board is entitled to extend the period of grace allowed to a particular member to such extent and for such reasons as it may in its sole discretion deem appropriate.
4.3 Membership of the Company shall be terminated:
4.3.1 upon the death of a natural person, or upon the voluntary dissolution, or final liquidation, of any Company or other juristic person concerned; or
4.3.2 upon receipt by the Company, at the Office, of the written resignation of the member concerned.
5 RIGHTS AND OBLIGATIONS OF MEMBERSHIP
5.1 In addition to the rights of members conferred by the Act, members may:
5.1.1 appoint the members of the Board.
5.1.2 receive copies of, the annual financial statements of the Company from time to time.
5.1.3 receive notice of, attend, speak and vote at, all general meetings of the Company in accordance with the provisions of these articles.
5.2 Notwithstanding anything to the contrary herein, the termination of membership shall not release a member from any obligation undertaken by her/him prior to the termination of such membership as a result of either:
5.2.1 the provisions of Clause 9.2 of the Memorandum of Association of the Company; or
5.2.2 any further or ancillary guarantee, commitment or obligation which such member may have undertaken either as a condition attaching to membership, or by virtue of any other cause.
6 REPRESENTATIVE MEMBERS
6.1 The Board is entitled (but not obliged) to recognize any person as a member, by reason of her/his appointment as:
6.1.1 an executive office holder or duly authorized representative of a particular organisation, statutory body or company;
6.1.2 an executor, administrator, trustee, curator or guardian of the estate of a deceased or sequestrated member, or of a member who is otherwise under disability;
6.1.3 the liquidator of any member which is a body corporate in the course of being wound up.
6.2 Should the Board recognize a representative member, from the date of such recognition and submission of any proof required by the Board, s/he shall be deemed to be a member of the Company in the relevant capacity or of the same class as the member concerned.
7 NON-TRANSFERABILITY OF MEMBERSHIP
Membership shall not be assigned or transferred unless the Board determines otherwise, and in that event, subject to such conditions as the Board in its sole discretion may deem appropriate.
8 REGISTER OF MEMBERS
The Company shall maintain a register of members, as provided in Section 105 of the Act at the office. The register of members shall be open to inspection, as provided in Section 113 of the Act.
9 ALTERATION OF MEMORANDUM AND ARTICLES
The Company, by special resolution, may alter the provisions of its Memorandum & Articles including its objects and powers, subject to the constraints stipulated in Clause 7.1.3 of the Memorandum.
10 GENERAL MEETINGS
10.1 The Company shall hold its first annual general meeting within eighteen (18) months after the date of its incorporation, and shall thereafter in each year hold an annual general meeting; provided that not more than fifteen (15) months shall elapse between the date of
one annual general meeting and that of the next, and an annual general meeting shall be held within six (6) months after the expiration of the financial year of the Company.
10.2 Other general meetings of the Company may be held at any time.
10.3 Annual general meetings and other general meetings shall be held at such times and places as the Directors may appoint, or at such times and places as may be stipulated in respect of meetings convened under Sections 179(4), 181, 182 or 183 of the Act.
10.4 Notwithstanding anything to the contrary contained herein a general meeting shall be convened by the directors at any time upon the written request of not less than five (5) members.
11 NOTICE OF GENERAL MEETINGS
11.1 An annual general meeting, and a meeting called for the passing of a special resolution, shall be called upon not less than twenty-one (21) clear days= notice in writing and any other general meeting shall be called upon not less than fourteen (14) clear days= notice in writing.
11.2 The notice shall be exclusive of the day on which it is served or deemed to be served and of the day for which it is given and shall specify the place, the day and the hour of the meeting. The notice shall be given in the manner set out in Article 28 below or in such other manner, if any, as may be prescribed by the Company in general meeting, to such persons as are, under these Articles, entitled to receive such notices from the Company; provided that a meeting of the Company shall, notwithstanding the fact that it is called by shorter notice than that specified in this Article, be deemed to have been duly called, if it is so agreed by a majority in number of the members having a right to attend and vote at the meeting, being a majority holding not less than ninety-five percent (95%) of the total voting rights of all such members.
12 PROCEEDINGS AT GENERAL MEETINGS
12.1 The annual general meetings shall deal with and dispose of all matters prescribed by the Act, including the consideration of the annual financial statements, the appointment or removal of directors, the appointment of auditors, and may deal with any other business laid before it. All business laid before any other general meeting shall be considered special business.
12.2 No business shall be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business. A quorum shall be constituted if there shall be personally present or represented at such meeting, at least fifteen percent (15%) of all the members of the Company, provided that at any duly constituted general meeting there shall at no time be less than three (3) members present in person.
12.3 If within forty-five (45) minutes after the time appointed for the meeting, a quorum is not present, the meeting, if convened upon the requisition of members, shall be dissolved; in any other case it shall stand adjourned to such time and date as the Chairperson of the meeting may decide, provided it is held within twenty-one (21) days of the original meeting. If at such adjourned meeting a quorum is still not present within half an hour after the time appointed for such meeting, the members then present in person or by proxy shall be a quorum.
12.4 When a meeting has been adjourned as aforesaid, the Company shall, within three (3) days of the adjournment, in a newspaper circulating in the Province where the registered office of the Company is situated, publish a notice stating:
12.4.1 the date, time and place to which the meeting has been adjourned;
12.4.2 the matter before the meeting when it was adjourned; and
12.4.3 the ground for the adjournment.
12.5 The Chairperson of the Board or in his/her absence the Deputy-Chairperson, shall preside as Chairperson at every general meeting of the Company.
12.6 If there is no such Chairperson or Deputy-Chairperson, or if at any meeting s/he is not present within thirty (30) minutes after the time appointed for the holding of the meeting, or is unwilling to act as Chairperson, the members present shall elect one of their number to act as Chairperson.
12.7 The Chairperson may, with the consent of any meeting at which a quorum is present (and shall, if so directed by the meeting), adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting at which the adjournment took place.
12.8 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 demanded by the Chairperson, or:
12.8.1 not less than five (5) members entitled to vote and personally present or represented by proxy at the meeting; or
12.8.2 by a member or members, entitled to vote, personally present or represented by proxy at the meeting, and holding not less than one-tenth of the total voting rights of all the members present or represented at such meeting.
The demand for a poll may be withdrawn.
12.9 Unless a poll is so demanded, a declaration by the Chairperson that a resolution has, on a show of hands, been carried unanimously or by a particular majority or negatived, and an entry to that effect in the book containing the minutes of the proceedings of the Company, 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.
12.10 If a poll is duly demanded, it shall be taken in such manner as the Chairperson directs.
12.11 A poll demanded on the election of a Chairperson 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 Chairperson 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.
12.12 Unless a meeting is required to be held in compliance with the Act, a resolution signed by or on behalf of all members of the Company shall be as valid and effectual as if passed at a duly convened meeting of the Company.
12.13 At any general meeting, except in the case of a special resolution, a resolution put to the vote shall be decided by a majority of votes.
13 VOTES OF MEMBERS
13.1 On a poll or on a show of hands, each member shall have one (1) vote.
13.2 In the case of an equality of votes:
13.2.1 the Chairperson of the meeting shall NOT be entitled to a second and casting vote; and
13.2.2 the Resolution shall be deemed not to have been passed.
14.1 The instrument appointing a proxy shall be in writing under the hand of the appointer or of her/his agent duly authorised in writing, or if the appointer is a juristic person or body corporate, under the hand of a duly authorised officer or agent. A proxy need not be a member of the Company. The holder of a general or special power of attorney incorporating the necessary powers contemplated herein, shall be entitled to attend and vote at any meetings on behalf of the member granting such power.
14.2 Although the Chairperson of the meeting shall be entitled to condone any non-compliance with these formalities, the Company shall be obliged to give effect to the appointment of a proxy, provided the instrument appointing such proxy including the power of attorney or other authority, if any, under which it is signed or a duly certified copy thereof, has been deposited at the Office not less than forty-eight (48) hours before the time for holding such meeting or any adjournment thereof.
14.3 The instrument appointing a proxy shall be in the following form or in such other form as may be acceptable to the Board:
I, __________________________ of_________________________________________
being a member of_________________________________________, hereby appoint:
__________________________ of ___________________________________________
as my proxy to attend, vote and speak for me and on my behalf at the annual general meeting (as the case may be) of the Company to be held on the day of 20…, and at any adjournment thereof as follows:
| || |
In favour of
Abstain from voting
| || || |
| || || |
| || || |
(Indicate instruction to proxy by way of a cross in space provided above)
Unless otherwise instructed, my proxy may vote as s/he thinks fit.
Signed this day of 20…..
(Note: A member entitled to attend and vote is entitled to appoint a proxy to attend, speak and on a poll vote in her/his stead. Such proxy need not also be a member of the Company.)
15 APPOINTMENT OF DIRECTORS
15.1 Unless otherwise determined by the Company in general meeting, there shall be not less than three (3) directors of the Company.
15.2 The directors shall be entitled, at their discretion, by majority decision, to co-opt, remove and substitute one (1) additional director.
15.3 A director shall not be required to be a member in order to be appointed a director of the Company.
15.4 The continuing directors may act, notwithstanding any vacancy in their number, but if and for so long as their number is reduced below the minimum number of directors required to act as such for the time being, the continuing director/s may act only for the purpose of increasing the number of directors to the required minimum or of convening a general meeting but for no other purpose.
15.5 The nomination of the initial directors shall be effected in writing under the signature of the subscribers to this Memorandum and Articles of Association.
16 TERM OF APPOINTMENT
16.1 Unless removed in terms of the Act or the provisions of these Articles, and save for the executive director, at every second annual general meeting not less than one third of all the directors shall retire by rotation. The directors to retire shall be those who have been in office the longest since their last appointment. As between directors of equal seniority the directors to retire shall, in the absence of agreement between them, be selected by lot.
16.2 All retiring directors shall remain eligible for re-election, or co-option, as the case may be.
17 DIRECTORS’ REMUNERATION AND REIMBURSEMENT
The directors shall:
17.1 save in the case of an executive director, be entitled to reasonable remuneration as determined by the Company in general meeting from time to time, for their services as directors and for any extra services actually rendered to the Company.
17.2 be entitled to reimbursement of travelling, subsistence, and other expenses reasonably incurred in the execution of their duties in or about the business of the Company, provided such disbursements are authorised and approved by the Board.
18 ALTERNATE DIRECTORS
18.1 Each director shall have the power to nominate any other member of the Company, to act as alternate director in her/his place during her/his absence or inability to act as such, provided that the appointment of any person who is not a member or director shall require the approval of the Board, whose consent may not be unreasonably withheld. Upon such appointment being made, the alternate director shall, in all respects, be subject to the terms, qualifications and conditions existing with reference to the other directors of the Company.
18.2 Any alternate director, whilst acting in the stead of the director who appointed her/him, shall exercise and discharge all the powers, duties and functions of the director s/he represents. The appointment of an alternate director shall be revoked, and the alternate director shall cease to hold office, whenever the director who appointed her/him ceases to be a director; or should such director or the alternate director himself, give notice to the secretary of the Company that such alternate director has ceased to represent the director concerned.
18.3 A person may be nominated as alternate director to more than one director, and in such event shall have the voting rights set out in Article 22.4 below.
19 DISCLOSURE OF INTERESTS
19.1Every director shall comply with the provisions of Sections 234 to 240, inclusive, of the Act. Without derogating from the generality of the foregoing, every director shall declare any interest, direct or indirect, material or otherwise, which such director has in
any contract or arrangement which at the time of such declaration has been proposed or has been entered into by the Company with any person whomsoever. For the purpose of this Article a director shall be deemed to have an interest in any contract between the Company and any Company or partnership in which such director is a member, director or partner. Every interest to be declared in terms of this Article shall be declared and minuted in the manner and at the time prescribed by Sections 235 and 239 of the Act.
19.2 In no case shall a director having an interest which requires to be declared in terms of the above Article, vote as a director upon any question relating to such transaction, and if he/she does so his/her votes shall not be counted. This prohibition shall not apply to:
19.2.1 any indemnity in favour of the directors or any of them; or
19.2.2 any contract whereby security is given in respect of advances made by the directors or any of them to the Company; or
19.2.3 any contract or arrangement with a Company or partnership of which the directors or any of them are members, directors or partners.
19.3 The Company in general meeting may suspend or relax to any extent the provisions contained in this Article.
19.4 Nothing contained in this Article shall be construed so as to debar any director as a member from taking part in and voting upon all questions submitted to a meeting of members.
20 POWERS AND DUTIES OF DIRECTORS
The business of the Company shall be managed by the directors, who may pay on behalf of the Company, all expenses incurred in promoting and incorporating the Company, and may exercise all such powers of the Company as are not required by the Act, or by these Articles, to be exercised by the Company in general meetings. Without in any way derogating from the generality of the aforegoing, the directors shall be entitled to exercise on behalf of the Company all and any of the common powers of Companies itemised in Schedule 2 of the Act, subject only to any contrary stipulation contained from time to time in the Memorandum of Articles of the Company.
21 BORROWING POWERS
The directors' borrowing powers shall be unlimited, and they shall be entitled to borrow money and to mortgage or bind the undertaking and property of the Company or any part
thereof, and to issue debentures, debenture stock and other securities whether outright or as security for any debt, liability or obligation of the Company or of any third party.
22 DISQUALIFICATION AND REMOVAL OF DIRECTORS
The office of director shall be vacated if the person concerned:
22.1 ceases to be a director by effluxion of the period of his/her appointment, or becomes prohibited from serving as a director by virtue of any provision of the Act; or
22.2 resigns office by notice in writing to the Company; or
22.3 is directly or indirectly interested in any contract or proposed contract with the Company and fails to declare her/his interest and the nature thereof in the manner required by the Act; or
22.4 is removed from office by ordinary resolution passed by a general meeting of which special notice shall has been duly given in terms of the Act; or
23 PROCEEDINGS OF DIRECTORS
23.1The directors shall meet together quarterly for the despatch of business but otherwise may regulate their meetings as they deem fit.
23.2At all meetings of directors, the quorum necessary for the transaction of business shall be a majority of the directors appointed at the relevant time.
23.3Any two (2) directors may at any time, and the secretary upon the request of any two (2) directors shall be obliged to, convene a meeting of the directors. A director while absent from the Republic shall not, during such absence, be entitled to notice of any meeting.
This provision shall not derogate from the duty of the Company to give notice to any alternate director, whom such absent director may have duly appointed.
23.4Each director present or represented at a meeting shall be entitled to exercise one (1) vote. Where a person is an alternate director to more than one director, or where an alternate director is also a director in her/his personal capacity, s/he shall have a separate vote on behalf of each director whom s/he is representing, in addition to her/his own vote as a director, if applicable.
23.5Questions arising at any meeting of directors shall be decided by a majority of votes, provided that in the case of an equality of votes:
23.5.1 the Chairperson shall not be entitled to a second and casting vote; and
23.5.2 the resolution shall be deemed not to have been passed.
23.6The directors may elect a Chairperson and a Deputy Chairperson, who shall hold office until the next annual general meeting. The Chairperson, or in her/his absence, the Deputy Chairperson, shall be entitled to preside over all meetings of directors. If no Chairperson or Deputy Chairperson is so elected, or if at any meeting neither is present or willing to act within fifteen (15) minutes of the time appointed for the commencement of such meeting, the directors present shall choose any other of their number to be Chairperson of such meeting.
23.7Subject to the Act, a resolution in writing signed by all the directors for the time being present in the Republic shall be as valid and effectual as if it had been passed at a meeting of the directors duly convened and held.
23.8The Board may delegate any of their powers to an executive or special purpose committee consisting of such of the directors, and others, as they may deem fit. An executive or special purpose committee so formed shall, in the exercise of the powers delegated to it, conform to any rules, restrictions or procedures that may be imposed on it by the Board.
23.9The Board, from time to time, may:
23.9.1 appoint a person to the office of an executive director to manage the day to day affairs of the Company for such term and upon such conditions as they deem fit and may revoke such appointment subject to the terms of any agreement entered into in any particular case;
23.9.2 entrust to or confer upon any executive director all or any of the powers and authorities vested in them for such purposes and objects and upon such terms and conditions as they may deem fit;
23.9.3 while holding office, the executive director shall be a member of the Board ex officio and shall not be subject to the provisions relating to retirement or retirement by rotation of directors set out in Article 16 above.
23.10 All acts done by any meeting of the directors, or a committee of directors, or by any person acting as a director shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such directors or person acting as aforesaid or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a director.
24 MINUTES AND MINUTE BOOK
24.1The directors shall, in accordance with the provisions of Section 204 of the Act, cause minutes to be kept:
24.1.1 of all appointments of officers;
24.1.2 of names of members present at every general meeting of the Company and of directors present at every meeting of the Board; and
24.1.3 of all proceedings at all general meetings of the Company and of the directors.
24.2Such minutes shall be signed by the Chairperson of the meeting at which the proceedings took place or by the Chairperson of the next succeeding meeting.
25 INSPECTION OF MINUTES
The minutes of every general meeting and annual general meeting of the Company under Section 204 of the Act, may be inspected and copied as provided in Section 113 of the Act.
26 ACCOUNTING RECORDS
26.1The directors shall cause to be kept such accounting records as are prescribed by Section 284 of the Act, in order to fairly present the state of affairs and business of the Company and to explain the transactions and financial position of its business.
26.2The accounting records shall be kept at the Office of the Company or at such other place or places as the directors think fit, and shall always be open to inspection by the directors.
26.3The directors shall from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounting records of the Company shall be open to inspection by members not being directors, and no member (not being a director) shall have any right to inspect any books of account, records, or documents of the Company, except as conferred by the Act or authorised by the directors, or by the Company in general meeting.
27 ANNUAL FINANCIAL STATEMENTS
27.1The directors shall from time to time in accordance with Sections 286 and 288 of the Act, cause to be prepared and laid before the Company in general meeting such annual financial statements as are referred to in such Sections.
27.2Not less than twenty-one (21) days before the date of the annual general meeting, copies of any financial statements which are to be laid before such meeting, shall be sent to every member of the Company to every holder of debentures and to the Registrar: Provided that this Article shall not require such copies to be sent:
27.2.1 to any member who has requested in writing that copies of such financial statements be NOT sent to her/him;
27.2.2 to any person of whose address the Company is unaware.
27.2.3 to more than one of the joint holders of any debentures.
An Auditor shall be appointed, and may if necessary be removed, and replaced, in accordance with the relevant provisions of the Act.
29.1 A notice may be given by the Company to any member either personally, or by sending it by post in a prepaid letter addressed to such member's registered address or (if such member has no registered address in the Republic), then at the address (if any) within the Republic for the giving of notice supplied by the member, or by facsimile (fax) or
electronic mail (e-mail), at such address as the member concerned may have stipulated for this purpose.
29.2 If receipt of a notice is disputed by a member, such notice shall be deemed not to have been duly given, unless the Company is able to produce a registered slip, or electronic confirmation verifying that the notice was duly despatched. Any notice sent by registered post shall be deemed to have been received five (5) days after the letter containing the same was duly posted.
29.3 Notice of every general meeting shall be given in any manner required by law or authorised by these Articles:
29.3.1 to every member of the Company save and except that such notices need not be sent:
22.214.171.124 to any member who has requested in writing that copies of such notices not be sent to her/him;
126.96.36.199 to any person of whose address the Company is unaware.
188.8.131.52 to more than one of the joint holders of any debentures;
29.3.2 to every person deemed to be a representative member for the purpose of Article 6 above and who shall represent a member entitled to such notices in terms of Article 28.3.1 above;
29.3.3 to the Auditor for the time being of the Company.
No other person shall be entitled as of right to receive notices of general meetings.
29.4The accidental omission to give any notice of a general meeting or of a meeting of directors to, or the non-receipt of any such notice by, any member or director, as the case may be, shall not invalidate any resolution passed at any such meeting.
The directors may set aside and carry to a reserve fund all the surplus funds of the Company, which at their discretion may be applied for any purpose for which such funds may properly be applied in terms of the main object.
31.1Subject to any contrary provision in the Act, every director and other officer of the Company shall be indemnified out of the funds of the Company for any reasonable and necessary costs and expenses properly incurred at the request, and with the authority, and in the course of the business of the Company.
31.2No director, officer or employee of the Company shall be liable for the acts, receipts, neglects or defaults of any other director, officer or employee or for joining in any receipt or other act for conformity, or for any loss or expense to the Company through the insufficiency or deficiency of any security in or upon which any of the moneys of the Company shall be invested, or for any loss or damage arising from the bankruptcy, insolvency or delictual acts of any persons with whom any moneys, securities or effect shall be deposited, or for any loss or damage occasioned by any error of judgment or oversight on the part of such person, or for any other loss, damage or misfortune whatever which occurs in the execution of the duties of office, unless the same happens through such person's own wrongful act, negligence, default, breach of duty or breach of trust.
PARTICULARS OF SUBCRIBER DATE AND SIGNATURE
PARTICULARS OF WITNESS DATE AND SIGNATURE OF WITNESS
184.108.40.206 (THE ABOVE INFORMATION MUST BE FILLED IN FOR ALL SEVEN (OR MORE) MEMBERS OF THE COMPANY)