Wednesday, March 5, 2008

a model memorandum of association

REPUBLIC OF SOUTH AFRICA

COMPANIES ACT 1973

MEMORANDUM OF ASSOCIATION

OF A COMPANY NOT HAVING A SHARE CAPITAL

[Section 54(1); Regulation 17 (3)]

[NAME]

_______________________________________________________

[Association Incorporated under Section 21]

Registration Number:

1 NAME

1.1 The name of the Company is ______________________(Association Incorporated under Section 21)

1.2 The name of the Company in other official languages of the Republic is:

_________________

1.3 The shortened form of the Company is:

_______________________

2 FINANCIAL YEAR

The financial year of the Company ends on the ______________.

3. PURPOSE DESCRIBING MAIN BUSINESS

The main business of the Company shall be __________________________

4. MAIN OBJECT

4.1 The Company shall be a public benefit, nonprofit, organization with the main business of ___________________

4.2 Without derogating from the generality of the foregoing, the Company’s main object will include ______________________________________

5. ANCILLARY OBJECTS EXCLUDED

The specific ancillary objects, if any, referred to in Section 33(1) of the Act, which are excluded from the unlimited ancillary objects of the Company, are:

___________________

6. POWERS

6.1 The specific power, or part of any specific power of the Company, which is excluded from the plenary powers or the common powers, as set out in Schedule 2 to the Act is: Power (S).

6.2 The specific powers or part of any specific powers of the Company set out in Schedule 2 to the Act, which are qualified under Section 34 of the Act are as follows:

6.2.1 Power (h), which is to be modified to read as follows:

To open and operate banking accounts and to overdraw such accounts provided that directors shall be signatories to such accounts.

6.2.2 Power (k), which is to be modified to read as follows:

To form and to have an interest in any company or companies having the same or similar objects to this company, for the purpose of acquiring the undertaking, or all or any of the assets or liabilities of such other company or companies, or for any other purpose which may seem directly or indirectly calculated to benefit the company; and to transfer to any such other company or companies the undertaking of this company, comprising all or any of its assets or liabilities.

6.2.3 Power (1) to be modified to read as follows:

To amalgamate (and even affiliate to) with any other companies having the same or similar objects to this company.

6.2.4 Power (m) to be modified to read as follows:

To take part in the management, supervision and control of the business or operations of any other company or business having the same or similar objects to this company, and to enter into joint ventures or partnerships having the same or similar objects to this company.

6.2.5 Power (n) to be modified to read as follows:

To remunerate any person or persons in cash for services rendered in its formation or in the development or conduct of its activities.

6.2.6 Power (o) to read as follows:

To make grants and donations in pursuance of its Main Object, provided that no such grants or donations may be made to members or directors, save insofar as they may benefit from the activities of the historically disadvantaged communities.


6.2.7 Power (r) to read as follows:

To pay staff gratuities and pensions and to establish pension schemes and incentive schemes in respect of its employees.

6.3 Save for the exclusions and/ or modifications set out in 6.1 and 6.2 above, the plenary powers of the Company as provided for in Schedule 2 shall be applicable in respect of this Company.

6.4 In order to facilitate the Company’s eligibility for tax exemptions and other fiscal benefits, and in compliance with the requirements of the Commissioner for the South African Revenue Service (SARS), the Company’s powers shall be subject to the following further special conditions:

6.4.1 Carry on its public benefit activities (or substantially the whole thereof) in the Republic unless the Minister of Finance, having regard to the circumstances of the case, directs otherwise.

6.4.2 Carry on its public benefit activities in a non-profit manner.

6.4.3 Comply with such conditions, if any, as the Minister may prescribe by way of regulation to ensure that the activities and resources of the Company are directed in the furtherance of its objects.

6.4.4 Submit to the Commissioner a copy of any amendment to this Memorandum and Articles of Association under which it has been established.

6.4.5 Be required to have at least three persons, who are not connected persons in relation to each other, to accept the fiduciary responsibility of the Company and no other single person directly or indirectly controls the decision making powers relating to the Company.

6.4 6 In the event of the Company investing funds, invest such funds:

6.4.6.1 with a financial institution as defined in section 1 of the Financial Services Board Act, 1990 (Act No. 97 of 1990); and/or

6.4.6.2 in securities listed on a stock exchange as defined in section 1 of the Stock Exchanges Control Act, 1985 (Act No. 1 of 1985); and/or

6.4.6.3 in such other prudent investments in financial instruments and assets as the Commissioner may determine after consultation with the Executive Officer of the Financial Services Board and the Director of Non-Profit Organisations;

provided that the provisions of this sub-paragraph do not prohibit the Company from retaining any investment (other than any investment in the form of a business undertaking or trading activity or asset which is used in such business undertaking or trading activity) in the form that it was acquired by way of donation, bequest or inheritance.

6.4.7 Be prohibited from carrying on any business undertaking or trading activity, otherwise than to the extent that:

6.4.7.1 the gross income derived from such business undertaking or trading activity does not exceed the greater of:

6.4.7.1.1 five percent (5%) of the gross receipts of the Company; or

6.4.7.1.2 fifty thousand rand (R50 000,00);

6.4.7.2 the undertaking or activity is:

6.4.7.2.1 integral and directly related to the sole object of the Company; and

6.4.7.2.2 carried out or conducted on a basis substantially the whole of which is directed towards the recovery of cost, and which would not result in unfair competition in relation to taxable entities;

6.4.7.3 the undertaking or activity, if not integral and directly related to the sole object of the Company as contemplated in clause 6.4.7.2.1, is of an occasional nature and undertaken substantially with assistance on a voluntary basis without compensation; or

6.4.7.4 the undertaking or activity is approved by the Minister by notice in the Gazette, having regard to:

6.4.7.4.1 the scope and benevolent nature of the undertaking or activity;

6.4.7.4.2 the direct connection and interrelationship of the undertaking or activity with the sole purpose of the Company;

6.4.7.4.3 the profitability of the undertaking or activity; and

6.4.7.4.4 the level of economic distortion that may be caused by the tax-exempt status of the Company carrying out the undertaking or activity.

6.4.8 Be prohibited from accepting any donation which is revocable at the instance of the donor for reasons other than a material failure to conform to the designated purposes and conditions of such donation, including any misrepresentation with regard to the tax deductibility thereof in terms of section 18A; provided that a donor (other than a donor which is an approved public benefit organisation or an institution, board or body which is exempt from tax in terms of section 10(1)(cA)(i), which has as its sole or principal object the carrying on or any public benefit activity) may not impose conditions which could enable such donor or any connected person in relation to such donor to derive some direct or indirect benefit from the application of such donation.

6.4.9 Ensure that it is not knowingly a party to, and does not knowingly permit itself to be used as part of any transaction, operation or scheme of which the sole or main purpose is or was the reduction, postponement or avoidance of liability for any tax, duty or levy, which, but for such transaction, operation or scheme, would have been or would have become payable by any person under the Income Tax Act 58 of 1962, as amended, or any other Act administered by the Commissioner.

6.4.10 Has not and will not pay any remuneration as defined in the Fourth Schedule, to any employee, office bearer, member or other person, which is excessive, having regard to what is generally considered reasonable in the sector and in relation to the service rendered and has not and will not economically benefit any person in a manner which is not consistent with its objects.

6.4.11 Comply with such reporting requirements as may be determined by the Commissioner.

6.4.12 Take reasonable steps to ensure that the funds which it may provide to any association of persons as contemplated in section 30(b)(iii) of the Income Tax Act 58 of 1962, as amended, are utilised for the purpose for which they are provided.

6.4.13 Become registered in terms of section 13(5) of the Non-Profit Organisations Act 71 of 1997, as amended, within such period as the Commissioner may determine, and comply with any other requirements imposed in terms of that Act, unless the Commissioner in consultation with the Director or Nonprofit Organisations designated in terms of section 8 of the Nonprofit Organisations Act, 1997, on good cause shown, otherwise directs.

6.4.14 Has not and will not use its resources directly or indirectly to support, advance or oppose any political party.

6.4.15 Ensure that any books of account, records or other documents relating to its affairs are:

6.4.15.1 where kept in book form, retained and carefully preserved by any person in control of the organisation, for a period of at least four years after the date of the last entry in any such book; or

6.4.15.2 where not kept in book form, are retained and carefully preserved by any person in control of the organisation, for a period of four years after the completion of the transaction, act or operation to which they relate.

7. CONDITIONS

7.1 The special conditions which apply to the Company, and the requirements additional to those prescribed in the Act for their alteration, are as follows:

7.1.1 Members and office bearers of the Company shall have no right to the property of the Company by virtue of being members or officers of the Company. The income and property of the Company whencesoever derived shall be applied solely towards the promotion of its Main Object and no portion thereof shall be paid or transferred directly or indirectly to the members or directors of the Company or to its controlling or controlled Company, provided that nothing contained herein shall prevent:

7.1.2 benefits accruing to persons who are identified as eligible beneficiaries in terms of the Company's Main Object; nor

7.1.3 the payment in good faith of reasonable remuneration commensurate with the services actually rendered by officers and employees, including a member or director, of the Company in return for services actually rendered to the Company.


7.2 Members or office bearers of the Company have no rights to the property of the Company by virtue of being members or office bearers. Upon its winding-up, deregistration or dissolution, the assets of the Company remaining after the satisfaction of all its liabilities shall be given or transferred to one or more other companies, trusts, associations or other institutions, having objects similar to the Main Object of the Company, as may be determined by its members in general meeting, at or before the time of its dissolution or, failing such determination, then by the Court: and should the Company become an approved public benefit organisation:

7.2.1 is a similar public benefit organisation which has been approved in terms of section 30 of the Income Tax Act, or

7.2.2 any institution, board or body which is exempt from tax under the provisions of section 10(1)(cA), which has as its sole or principal object the carrying on of any public benefit activity, or

7.2.3 any department of state or administration in the national or provincial or local sphere of government of the Republic contemplated in section 10(1) (a) or (b).

8. PRE-INCORPORATION CONTRACTS (IF ANY)

__________________________

9. GUARANTEE

9.1 The liability of members is limited to the amount referred to in clause 9.2;

9.2 Each member undertakes to contribute an amount not exceeding ONE RAND (R1, 00), to the assets of the Company in the event of it being wound up, either while such person is a member or within one year thereafter, for the purpose of payment of the debts and liabilities of the Company contracted before such person ceased to be a member, and payment of the costs, charges and expenses of the winding-up, and for adjustment of the rights of the contributories amongst themselves.

10. ASSOCIATION CLAUSE

We, the several persons whose full names, occupations, residential, business and postal addresses are subscribed, are desirous of being formed into a Company in pursuance of this Memorandum of Association, and we respectively agree to become members of the Company.

___________________________________________________________________________

PARTICULARS OF SUBSCRIBER

___________________________________________________________________________

Full Names:

Occupation:

Residential Address:

Business Address:

Postal Address:

SIGNATURE (OF SUBSCRIBER OR AUTHORISED AGENT) AND DATE:

___________________________________________________________________________

PARTICULARS OF WITNESS

___________________________________________________________________________

Full Names: TOPSY MCKENZIE

Occupation: Assistant Libriarian

Residential Address: Stand No. 215, 19 Hurricane Street, Ormonde View, JHB

Business Address: 7th Floor Bram Fischer House, 25 Rissik Street, Johannesburg, 2001

Postal Address: P.O. Box 9495, Johannesburg, 2000

SIGNATURE (OF WITNESS) AND DATE:

___________________________________________________________________________

PARTICULARS OF SUBSCRIBER

___________________________________________________________________________

Full Names:

Occupation:

Residential Address:

Business Address:

Postal Address:

SIGNATURE (OF SUBSCRIBER O AUTHORISED AGENT) AND DATE:

___________________________________________________________________________

PARTICULARS OF WITNESS

___________________________________________________________________________

Full Names: TOPSY MCKENZIE

Occupation: Assistant Libriarian

Residential Address: Stand No. 215, 19 Hurricane Street, Ormonde View, JHB

Business Address: 7th Floor Bram Fischer House, 25 Rissik Street, Johannesburg, 2001

Postal Address: P.O. Box 9495, Johannesburg, 2000

SIGNATURE (OF WITNESS) AND DATE:

___________________________________________________________________________

PARTICULARS OF SUBSCRIBER

___________________________________________________________________________

Full Names:

Occupation:

Residential Address:

Business Address:

Postal Address:

SIGNATURE (OF SUBSCRIBER OR AUTHORISED AGENT) AND DATE:

___________________________________________________________________________

PARTICULARS OF WITNESS

___________________________________________________________________________

Full Names: TOPSY MCKENZIE

Occupation: Assistant Libriarian

Residential Address: Stand No. 215, 19 Hurricane Street, Ormonde View, JHB

Business Address: 7th Floor Bram Fischer House, 25 Rissik Street, Johannesburg, 2001

Postal Address: P.O. Box 9495, Johannesburg, 2000

SIGNATURE (OF WITNESS) AND DATE:

___________________________________________________________________________

PARTICULARS OF SUBSCRIBER

___________________________________________________________________________

Full Names:

Occupation:

Residential Address:

Business Address:

Postal Address:

SIGNATURE (OF SUBSCRIBER OR AUTHORISED AGENT) AND DATE:

___________________________________________________________________________

PARTICULARS OF WITNESS

___________________________________________________________________________

Full Names: TOPSY MCKENZIE

Occupation: Assistant Libriarian

Residential Address: Stand No. 215, 19 Hurricane Street, Ormonde View, JHB

Business Address: 7th Floor Bram Fischer House, 25 Rissik Street, Johannesburg, 2001

Postal Address: P.O. Box 9495, Johannesburg, 2000

SIGNATURE (OF WITNESS) AND DATE:

___________________________________________________________________________

PARTICULARS OF SUBSCRIBER

___________________________________________________________________________

Full Names:

Occupation:

Residential Address:

Business Address:

Postal Address:

SIGNATURE (OF SUBSCRIBER OR AUTHORISED AGENT) AND DATE:

___________________________________________________________________________

PARTICULARS OF WITNESS

___________________________________________________________________________

Full Names: TOPSY MCKENZIE

Occupation: Assistant Libriarian

Residential Address: Stand No. 215, 19 Hurricane Street, Ormonde View, JHB

Business Address: 7th Floor Bram Fischer House, 25 Rissik Street, Johannesburg, 2001

Postal Address: P.O. Box 9495, Johannesburg, 2000

SIGNATURE (OF WITNESS) AND DATE:

___________________________________________________________________________

PARTICULARS OF SUBSCRIBER

___________________________________________________________________________

Full Names:

Occupation:

Residential Address:

Business Address:

Postal Address:

SIGNATURE (OF SUBSCRIBER OR AUTHORISED AGENT) AND DATE:

___________________________________________________________________________

PARTICULARS OF WITNESS

___________________________________________________________________________

Full Names: TOPSY MCKENZIE

Occupation: Assistant Libriarian

Residential Address: Stand No. 215, 19 Hurricane Street, Ormonde View, JHB

Business Address: 7th Floor Bram Fischer House, 25 Rissik Street, Johannesburg, 2001

Postal Address: P.O. Box 9495, Johannesburg, 2000

SIGNATURE (OF WITNESS) AND DATE:

___________________________________________________________________________

PARTICULARS OF SUBSCRIBER

___________________________________________________________________________

Full Names:

Occupation:

Residential Address:

Business Address:

Postal Address:

SIGNATURE (OF SUBSCRIBER OR AUTHORISED AGENT) AND DATE:

___________________________________________________________________________

PARTICULARS OF WITNESS

___________________________________________________________________________

Full Names: TOPSY MCKENZIE

Occupation: Assistant Libriarian

Residential Address: Stand No. 215, 19 Hurricane Street, Ormonde View, JHB

Business Address: 7th Floor Bram Fischer House, 25 Rissik Street, Johannesburg, 2001

Postal Address: P.O. Box 9495, Johannesburg, 2000

SIGNATURE (OF WITNESS) AND DATE:

___________________________________________________________________________

PARTICULARS OF SUBSCRIBER

___________________________________________________________________________

Full Names:

Occupation:

Residential Address:

Business Address:

Postal Address:

SIGNATURE (OF SUBSCRIBER OR AUTHORISED AGENT) AND DATE:

___________________________________________________________________________

PARTICULARS OF WITNESS

___________________________________________________________________________

Full Names: Topsy McKenzie

Occupation: Assistant Libriarian

Residential Address: Stand No. 215, 19 Hurricane Street, Ormonde View, JHB

Business Address: 7th Floor Bram Fischer House, 25 Rissik Street, Johannesburg, 2001

Postal Address: P.O. Box 9495, Johannesburg, 2000

SIGNATURE (OF WITNESS) AND DATE:

___________________________________________________________________________

PARTICULARS OF SUBSCRIBER

___________________________________________________________________________

Full Names:

Occupation:

Residential Address:

Business Address:

Postal Address:

SIGNATURE (OF SUBSCRIBER OR AUTHORISED AGENT) AND DATE:

___________________________________________________________________________

PARTICULARS OF WITNESS

___________________________________________________________________________

Full Names: TOPSY MCKENZIE

Occupation: Assistant Libriarian

Residential Address: Stand No. 215, 19 Hurricane Street, Ormonde View, JHB

Business Address: 7th Floor Bram Fischer House, 25 Rissik Street, Johannesburg, 2001

Postal Address: P.O. Box 9495, Johannesburg, 2000

SIGNATURE (OF WITNESS) AND DATE:

___________________________________________________________________________

PARTICULARS OF SUBSCRIBER

___________________________________________________________________________

Full Names:

Occupation:

Residential Address:

Business Address:

Postal Address:

SIGNATURE (OF SUBSCRIBER OR AUTHORISED AGENT) AND DATE:

___________________________________________________________________________

PARTICULARS OF WITNESS

___________________________________________________________________________

Full Names: TOPSY MCKENZIE

Occupation: Assistant Libriarian

Residential Address: Stand No. 215, 19 Hurricane Street, Ormonde View, JHB

Business Address: 7th Floor Bram Fischer House, 25 Rissik Street, Johannesburg, 2001

Postal Address: P.O. Box 9495, Johannesburg, 2000

SIGNATURE (OF WITNESS) AND DATE:

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