- Mr A Loedolff
- Mr N Crous
- Mr N Jetzer
- Mrs H Melton
- Mr N Schoop
- Mr D Smith
- Mr R Weber
- Chris Ackermann
- Vetus Schola
Estate Managing Company
- Micsam Management & Secretarial Services CC
Dennegeur Private Residential Estate Dennegeur Homeowners’ Association Constitution & Development Control Parameters
Amended & Approved: 29th September 2016
(Annual General Meeting)
The name of the Association is:
DENNEGEUR HOME OWNER’S ASSOCIATION
1.1 – The provisions hereof shall not be added to, amended or replaced without the registration of the amended Constitution, as per CSOS (Community Schemes Ombud Service Act).
1.2 – The Association shall consist of all registered owners of erven 13357 to 13413, 13415 to 13422, 13425 to 13433, 13435 to 13452 indicated on the plan marked Annexure A and General Plan 299/2000.
In this Constitution, unless the context indicates the contrary:
2.1 “the Association” shall mean Dennegeur Home Owner’s Association abbreviated as DHOA;
2.2 “the Private Area” shall mean Portion 1 of erf 7153, Somerset West as described by General Plan 299/2000, and any subdivision thereof;
2.3 “person” shall include a Company, Club, Partnership, current Trustees of a Trust or other Association of persons entitled in law to hold title to immovable property;
2.4 “member” shall mean a member as defined in Clause 5 hereof;
2.5 “resident member” shall mean a resident member as defined in Clause 7.2.2 hereof, excluding the owner of erf 13414;
2.6 “site” shall mean Portion 1 of erf 7153 Somerset West as described by General Plan 299/2000, and any subdivision thereof;
2.7 words importing the singular shall include the plural and the converse shall also apply; the masculine gender shall include feminine and neuter genders and the neuter gender shall include the masculine and feminine genders.
2.8 “EXCOM” shall mean the Executive Committee constituted in terms of Clause 7.2 hereof, and shall consist of resident members.
3.1 The head notes to the Clauses in this Constitution are inserted for reference purposes only and shall not effect the interpretation of any of the provisions to which they relate.
4.1 Through its Executive Committee (EXCOM), to promote and enforce standards for community-living in the Private Area in such a way those members may derive the maximum collective benefit there from,
4.2 To ensure that the Association meets its obligations to control, own and maintain private roads and services constructed for the benefit of members.
4.3 That the Association, through its said Committee, shall have the power to do such acts as are necessary and reasonably required to give effect to the provisions of the Constitution.
4.4 The Association shall be an association:
4.4.1 with separate legal personality, capable of suing and being sued in its own name, and
4.4.2 none of whose members in their personal capacities shall have any right, title or interest to or in the property, funds or assets of the Association, which shall vest in and be controlled by EXCOM in terms of, and subject to the provisions in this Constitution, and
4.4.3 not for profit, but for the benefit of the owners and occupants of immovable property situate in the Estate.
5.1 The Association shall be organised without capital and membership thereof shall be evidenced by registered ownership in the Deeds Registry in Cape Town of one or more erven in the Private Area. Upon registration of ownership, membership of the Association shall be automatic and members shall be obliged to comply with the provisions of this Constitution. No person shall be entitled to cease to be a member of the Association while remaining the registered owner of an erf in the Private Area.
5.2 Each member shall be entitled to ONE (1) vote for each erf owned in the Private Area. Ownership of an erf in undivided shares shall constitute only one membership, which membership shall be represented by one individual in terms of the provisions of Clause 8.10 hereof.
5.3 Membership shall be transferred by the registration of a Deed of Transfer in the Deed’s Registry at Cape Town, passing transfer of one or more erven in the Private Area to the new member.
5.4 Every member shall pay an annual levy/subscription to the Association, the amount of which shall be determined by EXCOM in terms of Clause 10 hereof. The subscription so determined shall apply equally to erven and shall be payable in respect of each erf owned by a member.
5.5 The owner of erf 13414 is not a member of the Association, but has access to said erf at all times.
6.1 The powers of the Association, other than those to be exercised by the members in General Meetings, shall be exercised by the Executive Committee (EXCOM).
7.1.1 The number of EXCOM members shall be determined from time to time by the members of the Association in a General Meeting, provided that there shall not be less than FIVE (5) or more than EIGHT (8) EXCOM members.
7.2 Election at Annual General Meeting
7.2.1 EXCOM members shall be elected annually at the Annual General Meeting and shall, subject to the provisions herein contained, remain in office until the following Annual General Meeting. Any EXCOM member who would like to serve another term in office may become re-electable without provision of term 7.2.3
7.2.2 Any member who resides for not less than EIGHT (8) months in any calendar year in the Private Area shall be deemed to be a resident member.
7.2.3 Nominations of candidates for election to EXCOM at any meeting shall be in writing, signed by TWO (2) members and accompanied by the written consent of the candidate nominated, so as to be received at the domicilium of the Association not later than FORTY EIGHT (48) hours before the meeting.
7.2.4 EXCOM members may fill any vacancy in their number or co-opt any additional member, provided that the number of EXCOM members shall not exceed EIGHT (8). Any EXCOM members so appointed or co-opted shall hold office until the next Annual General Meeting when he shall retire and be eligible for re-election as though he had been elected at the previous Annual General Meeting.
7.3 Vacation of office
7.3.1 by notice in writing to EXCOM, he resigns his office;
7.3.2 he is or becomes of unsound mind;
7.3.3 he surrenders his estate as insolvent or his estate is sequestrated;
7.3.4 he is convicted of an offence which involves dishonesty;
7.3.5 he absents himself from THREE (3) consecutive meetings of EXCOM without special leave of absence from EXCOM;
7.3.6 by resolution of a General Meeting of the Association, he is removed from his office;
7.3.7 he ceases to be a resident member.
7.4 Meetings and Procedures there at
7.4.1 EXCOM members may give notice convening meetings, meet together for the dispatch of business, adjourn or otherwise regulate their meetings as they think fit. It shall not be necessary to give notice of a meeting of any EXCOM member currently absent from the Republic of South Africa.
7.4.2 An EXCOM member may at any time convene a meeting of EXCOM by giving to the other EXCOM members no less than TEN (10) days written notice of a meeting proposed by him, which notice shall specify the reason for calling such a meeting, provided that in case of urgency shorter notice may be given within reason and according to circumstances.
7.4.3 THREE (3) EXCOM members shall form a quorum where EXCOM consists of either FIVE (5) or EIGHT (8) members. If at any meeting a quorum is not present within THIRTY (30) minutes of the appointed time of the meeting, such meetings shall stand adjourned to the next business day at the same time.
7.4.4 If the number of EXCOM members falls below the number necessary to form a quorum, the remaining members may constitute a quorum, but only for the purpose of convening a General Meeting of members.
7.4.5 At the commencement of the first meeting of EXCOM members after each Annual Meeting, EXCOM members shall elect a Chairman from their number who shall hold office as such until the end of the next ensuing Annual General Meeting and such Chairman shall have a casting as well as a deliberative vote. If any Chairman vacates his office or is removed there from by the members of a General Meeting the EXCOM members shall elect another Chairman who shall hold office for the remaining period in respect of which the first mentioned Chairman was elected and he shall have the same rights of voting.
7.4.6 All matters at any meeting of EXCOM shall be determined by a majority or those present and voting.
7.4.7 EXCOM members may from time to time appoint a person to be Secretary of the Association, to fulfil the normal functions of a Secretary and, inter alia, to attend all meetings and keep Minutes thereof.
7.5 Powers of EXCOM
The Management and administration of the Association shall vest in EXCOM which may exercise all such powers of the Association and also on behalf of the Association, all such acts as may be exercised by the Association itself and which are not, by its’ Constitution, required to be exercised or executed by the Association in a General Meeting. Without in any way limiting the generality of the afore-going, such powers shall include but not be limited to the following:
7.5.1 The determination of what constitutes an appropriate standard for community living and the maintenance of properties in the Private Area and ensuring house rules if need be;
7.5.2 The performance of such acts as are necessary to accomplish the objects expressed or implied herein;
7.5.3 The investment and re-investment of monies of the association which are not immediately required, in such a manner as may be determined from time to time;
7.5.4 The operation of a banking account with all relevant powers;
7.5.5 The making of, entering into and carrying out of contracts of agreement for any of the purposes of the Association;
7.5.6 The employment and payment of agents, servants and any other parties;
7.5.7 To institute proceedings in the name of the Association, to defend actions in the name of the Association and to appoint legal representatives for this purpose; in particular and without derogating from the generality of the afore-going, the power to sue shall include the right to sue members for the payment of subscriptions in arrears and/or for the carrying out of their obligations in terms of the Constitution;
7.5.8 The levying of a subscription payable by the members are provided in Clause 5.4 and 10 hereof and subject to the said Clauses, the determination from time to time and as frequently as they may, at their sole and absolute discretion, consider necessary or expedient, of the amount of the subscription to be paid to the Association by its members.
7.5.9 To prepare a budget for the forthcoming financial year with estimates of the re-current expenses such as maintenance and repair, security, upkeep of common areas and roads, administration and estate management amongst other matters. The budget should also include new major projects with detailed establishment cost and future running expenses. The impact on the financial reserves and continued funding should be detailed. Project approval by the members of the Association should be obtained at the Annual General Meeting.
7.6 Building, Architectural, Design and Landscaping Requirements
7.6.1 Prescribe and enforce the architectural style, the material to be used in respect of any buildings to be erected or in respect of any alterations or additions to be carried out to existing buildings and in particular to control the exterior design of such buildings and the materials and landscaping used so as to ensure an attractive, aesthetic and pleasing character to the buildings in the Private Area according to Annexure C and to ensure that construction works and the site is maintained in an orderly and neat manner which is reasonable. Building works to be completed within twelve (12) months of commencement.
7.6.2 Do such acts as are necessary to accomplish the purposes expressed or implied herein which acts shall include amongst others, the examination and endorsement or refusal of building and sewage plans, whether such be for new constructions, renovations, alterations or additions.
7.6.3 Compel members to comply with its’ requirements, and failing compliance therewith, to take steps to remedy such non-compliance at the cost of the member and, without in any way limiting the generality of the afore-going, to call upon a member in writing to remove or alter within a specified period, anything erected contrary to the requirements laid down pursuant thereto and failing which, to apply to Court, for an appropriate order;
7.6.4 Appoint professional advisers, e.g. an architect, to scrutinise all plans to ensure that the architectural controls have been met.
7.6.5 Construction of all dwellings must be completed by 31st December 2008. All buildings to be completed and members must be in possession of a Municipal occupational certificate, or penalty levies will be levied on incomplete houses, open erven or uncompleted buildings.
7.6.6 EXCOM shall be obliged to impose penalty levies against members or their successors in title who fail to “commence” and/or “complete” building construction within the time limitations imposed on the members as per Clause 7.6.5 above. Then those owners will be liable for a penalty levy of 3 times over and above the monthly levy which is currently applicable.
7.7 Validity of Acts of EXCOM members
Any act performed by EXCOM members shall, notwithstanding that it is after the performance of the act discovered that there was some defect in the appointment or continuance of any EXCOM member, be as valid as if such EXCOM member had been duly appointed in office.
EXCOM members shall be entitled to be repaid all reasonable and bona fide expenses incurred by them in connection with an incident to the performance of their duties as EXCOM members but save as aforesaid, shall not be entitled to any other remuneration, fees or salary in respect of the performance of such duties.
No EXCOM member shall be liable to the Association or any member thereof, or to any other person whomsoever for any act or omission by himself, by the Association or by its servants or agents. An EXCOM member shall be indemnified by the Association against any loss or damage suffered by him in consequence of any purported liability, provided that such member has, upon the basis of information known to him, or which should reasonably have been known to him, acted in good faith and without gross negligence.
8.1 Annual General Meetings shall be held once every year at such time and place as may be determined by EXCOM, but so that no more than FIFTEEN (15) months shall be allowed to elapse between any TWO (2) such successive meetings. The business to be done at the Annual General Meeting shall include:
8.1.1 the receipt of a report on the affairs of the Association;
8.1.2 the election of members to EXCOM;
8.1.3 the adoption of the Balance Sheet account;
8.1.4 confirmation of maximum overspend on approved budget;
8.1.5 the consideration of any Resolutions concerning the affairs of the Association of which due notice has been given;
8.1.6 any other business.
8.2 Ordinary General Meetings
EXCOM may call on Ordinary General Meetings whenever it thinks fit. An ordinary General Meeting shall also be called upon the written request of not less than FIVE (5) members, directed to the Chairman of EXCOM.
8.3 Notice of Meetings
An Annual Meeting shall be convened by a minimum of TWENTY ONE (21) days notice in writing and the Minutes of the previous Annual General Meeting shall be sent to members together with the notice convening the meeting. An Ordinary General Meeting shall be called by a minimum of FOURTEEN (14) days notice in writing. The notice shall specify the place, the day and the hour of the meeting and the general nature of the matter to be discussed, provided that any meeting shall, notwithstanding that it is called by shorter notice than that specified, be deemed to have been correctly called if it is agreed by the NINETY PERCENT (90%) of the members present.
The accidental omission of giving notice of a meeting to, or the non-receipt of a notice of a meeting by any person entitled to receive such notice, shall not invalidate the proceedings of that meeting. The provisions of this Clause shall not apply to EXCOM meetings.
No matters shall be discussed at any meeting unless a quorum is present when the meeting commences. For all purposes, the quorum shall be not less than ONE-THIRD (1/3) of the total number of members, and consisting of members present in person or represented by proxy.
If within half an hour from the time appointed for the holding of the meeting, a quorum is not present, the meeting, if convened on the request of members, shall be dissolved. It shall stand adjourned to the same day in the next week at the same time and place. If a quorum is not present at the adjourned meeting within half an hour from the time appointed for holding the meeting, the members present shall constitute a quorum. All members of the Association shall be given notice of such an adjourned meeting.
The Chairman of EXCOM shall preside at every General Meeting, but if there be no such Chairman, the members present shall choose a Chairman from the members of EXCOM, or if no such EXCOM members are present, they shall choose some other member present to be Chairman of the meeting.
At all General Meetings a Resolution put to the vote of the meeting shall be decided on a poll which shall be taken immediately in accordance with the following provisions:
8.8.1 Each member present in person shall have ONE (1) vote for every unit registered in his name;
8.8.2 Each person present as proxy for a member shall have ONE (1) vote for every unit registered in his name;
8.8.3 Each member and person present as proxy for a member shall verbally
8.8.4 All Resolutions shall be with the majority vote representing 70% of the votes of those members present in person or proxy at the meeting and voting;
8.8.5 The Chairman of the meeting shall count the votes cast for and against the Resolution and shall declare it carried or lost as the case may be;
8.8.6 A declaration by the Chairman of the result of the poll and entry thereof in the Minute book of the Association shall be conclusive evidence of that fact.
Should any member be declared incapable of managing his own affairs, or a prodigal or insolvent, or in the case of a Company, placed under Judicial Management, or into liquidation such member shall be represented by his Curator Bonis, Trustee, Judicial Manager or Liquidator as the case may be, who shall be entitled to vote on his behalf, either personally or by proxy.
If two or more persons are jointly registered owners of a unit, then in voting upon any question, the vote of the senior, who tenders a vote, whether in person or by proxy, shall be accepted to the exclusions of the votes of the other registered owners of the unit, and for this purpose, seniority shall be determined by the dates of birth of the joint owners as recorded in the Deed’s Registry, Cape Town. In the event of a unit being jointly owned by a natural person and a Company, then in such event the natural person shall cast a vote on behalf of such membership.
8.11.1 Votes may be given either personally or by proxy, or by postal vote or by email/fax.
8.11.2 The instrument appointing a proxy shall be in writing in the common form, or any form approved by EXCOM under the hand of the appointed, or his Attorney or agent, duly authorised in writing, or if such appointee is a Company, under the hand of an Officer duly authorised in that behalf;
8.11.3 The instrument of appointing a proxy, together with the Power of Attorney (if any) under which it is signed or a notarially certified copy thereof shall be deposed at the domicilium citandi of the Association prior to the meeting, or adjourned meeting, at which the person named in such instrument proposed to vote, otherwise the person so named shall not be entitled to vote in respect thereof.
Any Company which is a member of the Association may, through Resolutions of its’ Directors or other governing body, authorise such person as it thinks fit to act as its’ representative at any meeting of the Association and the person so authorised shall be entitled to exercise the same power on behalf of the Company which such person, as a representative of that Company, could exercise as if it were an individual member of the Association. The afore-going provisions shall apply mutates mutandis in the case of a Trust.
The Association shall be an Association:
9.1 with legal personality, capable of suing and being sued in its own name;
9.2 none of whose members in their personal capacities shall have any right, title or interest to or in the property, funds or assets of the Association, which shall vest in and be controlled by EXCOM in terms hereof;
9.3 not for profit, but for the benefit of the owners and occupants of immovable property situated in the Private Area.
10.1 The Association, through EXCOM, shall be entitled to levy an annual subscription to defray and provide for all the costs for which the Association may become responsible in order to give effect to its objects in terms of this constitution. Such subscriptions may be fixed and collected annually in advance.
10.2 The amount of the annual subscription shall be determined by EXCOM and may be increased or decreased by vote of the members of the Association in General Meeting. Approval of such increases or decreases in the amount of the annual subscription shall be given by SEVENTY FIVE PERCENT (75%) of the members of the Association present in General Meeting.
10.3 The subscription for the current year shall be unchanged and the approved new subscription shall be payable on the 1st of March of the next year.
10.4 If the annual subscription is not paid within THIRTY ONE (31) days of the due date, same shall bear interest from the date of delinquency at an interest rate of FIFTEEN PERCENT (15%) and the ASSOCIATION may institute legal proceedings against the member for the recovery thereof and the costs of such proceedings shall be added to the subscription and interest. A member whose subscription together with any interest and costs in unpaid shall not be entitled to vote at any General Meeting.
10.5 The annual subscription may be paid monthly by TWELVE (12) equal amounts on the first day of the month in question.
11.1 EXCOM shall cause proper books of account of administration and finance of the Association to be kept at the domicilium of the Association, or such other place of places as it may think fit, and shall produce an annual audited Balance Sheet.
11.2 EXCOM shall cause to be laid before the Association in Annual General Meeting, the annual audited Balance Sheet.
12.1 For all purposes arising out of this Constitution, including the giving of notices and the serving of legal process, each member chooses domicilium citandi et executandi as follows:
12.1.1 at the unit/erf registered in his name whether or not such erf is vacant land; each erf has been allocated a locked and numbered post box at the entrance to the Estate and shall be considered as acceptable reception point of any notices unless otherwise advised by the member in writing to the Association;
12.1.2 provided that any member may at any time by notice change his domicilium citandi et executandi to some other address, which new address shall be in the Republic of South Africa and shall not be a Post Office box or post restante; and provided further that such change shall become affective only FOURTEEN (14) days after receipt of the notice in question.
12.2 Any written notice which may be required to be given in terms of this Constitution may be delivered by hand or may be given by dispatch of such notice in writing by pre-paid registered post, in which event, such notice shall be deemed to have been received FIVE (5) days after the posting thereof from any Post Office within the Republic of South Africa, the exhibition of the certificate of registered item shall be full and complete proof of the date of dispatch of the said notice.
13.1 The Association may be wound up by a Resolution of the members in General Meeting provided that: NINETY PERCENT (90%) of members present or represented at the meeting, duly convened, vote in favour thereof.
13.2 In the event of such winding up, it shall be the duty of EXCOM, or a Receiver to be appointed by it, to convert the Association’s assets into cash, pay all the liabilities of the Association and thereafter distribute the rest to all the members in accordance with the number of units registered in the name of each member. If, within a period of TWELVE (12) months from such distribution, EXCOM or the Receiver is unable to find, locate or trace any member, such member’s share shall then be paid to the Guardians’ Fund.
Any amendment or addition to the Constitution, with the exception of “Annexure C”, may be effected by a Resolution passed by a FIFTY PERCENT (50%) majority at a General Meeting, after written notice thereof setting out such amendment or addition in full, has been given in the notice calling the meeting.
15.1 Any other dispute whatsoever between members shall, subject to the provisions of Clause 15, be referred for decision to a practising Senior Advocate of the Cape Bar of not less than FIVE (5) years standing or, in the event of a dispute in the case of Clauses 7.6.1 and 7.6.2 to an Architect of not less than FIVE (5) years standing, agreed upon by the parties to the dispute, who shall then, acting as an expert and not as an Arbitrator, determine the outcome of the dispute and his decision shall be final and binding upon the parties and capable of being enforced in a Court of Law.
15.2 In the event of the parties being unable to agree upon the Senior Advocate who should be appointed to determine the dispute, then he shall be nominated by the President of the Cape Bar Council.
15.3 In the event of the parties being unable to agree upon the Architect who should be appointed, he shall be nominated by the President of the Cape Provincial Institute of Architects.
15.4 Notwithstanding anything to the contrary herein contained, EXCOM shall at its sole option be entitled to institute proceedings in the Court having jurisdiction for any relief to which it is entitled under the provision of this Constitution, including subscriptions which are in arrears.
16.1 Members shall be obliged to submit all building and sewage plans for new construction, renovations, alterations or additions to the committee (who is bound by Annexure C) for examination and approval prior to the submission of such plan to the Local Authority for approval and the committee shall make known its decision to the applicant within TWO (2) weeks of the plans being submitted to it.
16.2 If any member is dissatisfied with the decision of the committee, he shall have the right to call for a meeting of all members and put his case to the vote. In this instance each member shall have a number of votes equal to the number of erven registered in his name.
17.1 The premises shall be used by the members in accordance with the Somerset West zoning scheme regulations and for no other purposes whatsoever.
17.2 All members shall ensure that their respective activities on and uses of the estate shall be carried out with reasonable and diligent care and with due and proper consideration for the other members. This shall likewise apply to the Home Owner’s Association.
18.1 Should any dispute or doubt arise as to the interpretation or meaning of this Constitution or any Rules and Regulations of the Association, EXCOM shall be the final arbiter and its decision shall be binding upon the members.
18.2 Apart from questions of interpretation, any other dispute whatsoever which may arise shall in the first instance be referred to EXCOM to decide whether the dispute in fact relates to any legal question or constitutes a dispute relating to physical design or landscaping. Thereafter the dispute, if legal, shall be referred for decision to a practising senior advocate of the Cape Bar of not less than five years standing or if relating to physical design or landscaping to a qualified Architect or Landscape Architect of not less than 10 years standing, agreed upon by the parties to the dispute, who shall then determine the dispute. In the event of the parties being unable to agree upon a senior advocate or architect or landscape architect who should be appointed to determine the dispute, then the Arbitrator shall be nominated by either the President of the Cape Bar Council or the President-in-Chief of the Institute of South African Architects or the Institute of Landscape Architects of South Africa, as the case may be.
18.3 The Arbitrator shall not be bound to follow strict principles of Law, but may decide the matter submitted to him according to what he considers just and equitable in the circumstances and, therefore, the strict rules of Law need not be observed or taken into account by him in arriving at his decision.The parties desire that such decision be arrived at as expeditiously and as informally as possible without any pleadings or discovery of documents, and without it being necessary to observe the strict rules of evidence, or the usual strict formalities or procedures. In the absence of agreement between the parties, the procedure to be followed shall be laid down by the Arbitrator.
18.4 Without in any way limiting, or derogating from the generality of his powers, the Arbitrator shall, in addition, be entitled to make such order as to the payment of legal costs and other expenses incurred by the parties to the arbitration as he deems just and equitable in all the circumstances.
18.5 The parties irrevocably agree that the decision of the Arbitrator on any matter in dispute shall be final and binding upon all of them, whether they were parties to the dispute or not, and may be made an order of any competent Court. Notwithstanding the reference in this Clause to “an Arbitrator”, any such Arbitrator shall act as an expert and shall not therefore be bound by the provisions of any arbitration laws for the time being in force.
AMENDED & APPROVED: 29th September 2016