CONSTITUTION OF THE CROYDON VINEYARD ESTATE HOME OWNERS ASSOCIATION

Transcription

1 CONSTITUTION OF THE CROYDON VINEYARD ESTATE HOME OWNERS ASSOCIATION A statutory body established in terms of Section 29(1) Section 24 of the Land Use Planning Ordinance 15 of 1985

2 1. ESTABLISHMENT OF THE ASSOCIATION It is recorded that the Croydon Vineyard Estate Home Owners Association is constituted as a statutory body in terms of Section 29 of LUPO, in accordance with the conditions imposed by the City of Cape Town, when approving the sub-division of the Land referred to in the clause below and will come into existence simultaneously with the registration in the Deeds Office of the first of the Erven. 2. INTERPRETATION In this document: 2.1 The following words shall, unless the context otherwise requires, have the meanings hereinafter assigned to them: The Association means the Croydon Vineyard Estate Home Owners Association, its nominee or assigns; the Auditors means the Auditors of the Association; Business Day means weekdays other than Saturdays, Sundays and public holidays: Chairperson means the Chairperson of the Trustee Committee; the Common Areas means the private roads, private open spaces, and the land upon which the vineyards, olive groves, winery and Lifestyle Centre are established; the Company means the Company operating Croydon Winery for its own account and whose sole shareholder will be the Association; the Council means the City of Cape Town, Helderberg Administration, or its successors; Croydon Winery means the Vineyards, Olive Groves and Winery established on Erven; the Design Manual means the architectural and landscape design manual, as amended with the approval of the Council dated July 2005, for the development of improvements on the Residential Erven; the EMPs means the environmental plans applicable to the Estate and as approved by the relevant authorities, including the Construction EMP and the Operational EMP; the Environmental Contract means the Environmental Contract entered into between the Association and the Council pursuant to the Council s conditions for subdivision of the Land as set out more fully in clause ; 2 P a g e

3 the Erven means all the Erven located on the Estate be they Residential, Non-Residential or Common Areas; the Estate means Croydon Vineyard Estate established on the Land, and comprising of the Common Areas, the Residential Erven and Non-Residential Erven; the Land means Remainder Portion 4 of the farm Croydon No. 654; a Portion of Portion 14 of the farm Croydon No. 654; Erven 55, 66 and Remainder of Erf 67 Croydon, all situated in the City of Cape Town, Division of Stellenbosch, Province of the Western Cape; levy means the levy referred to in Clause 8; Local Authority means the City of Cape Town, Helderberg Administration; LUPO means the Cape Land Use Planning Ordinance, No. 15 of 1985; Member(s) means a member/members of the Association; month means a calendar month; Non-Residential Erven means erven other than Residential Erven and which are not located for residential purposes; the Office means the registered office of the Association; Registered Owner means the registered owner of any of the Residential Erven; the Residential Erven means Erven other than Non-Residential Erven and Common Areas and which erven numbered, 1337, 1339, , , , , , , , , , , , , , , , , , services means such facilities, utilities, services and amenities as may be provided on the Estate in terms of clause 14, including (but not limited to) electricity, road services and reserves, stormwater, water, sewage and waste removal; a Trustee means one of the Trustee Committee; a Trustee Committee means the Board of Trustees of the Association; 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; year means a calendar year. 3 P a g e

4 2.2 Unless the context otherwise requires, any words importing the singular number only shall include the plural number, and visa versa and words importing any one gender only shall include the other two genders. 3. STATUS OF THE ASSOCIATION 3.1 The Association shall: have legal personality and be capable of suing and being sued in its own name; and not operate for profit, but for the benefit of the Members. 3.2 No member shall have any right, title of interest in or to the funds or assets of the funds or assets of the Association in his personal capacity, all of which shall vest in the Association. 4. MAIN OBJECTS The main object of the Association is the matter referred to in section 29(2)(b) and (c) of LUPO, and more specifically: 4.1 to control the design and construction of and any alterations to all buildings, and/or structures erected or to be erected on the Residential Erven in accordance with the Design Manual, EMP s, the conditions of approval of sub-division of the Land, site development plan, any applicable landscape management plan and any other plan, manual, guidelines, policy contract and the like of any authority and to which the development of the Land may be subject or which may hereafter be imposed, and the requirements of the Council or other authority; 4.2 to comply with, and to ensure compliance by Members with, the conditions imposed by the Council pursuant to the Council s approval for subdivision of the Land and in particular the environmental conditions, including but not limited to: the monitoring and enforcement of compliance by Registered Owners and by the Association itself with the EMP s for the ongoing management of the Development and in particular, ensuring that all private open spaces are cleared of alien vegetation form time to time; and ensuring that prior to commencement of the construction of any new dwelling on a Residential Erf, or any renovation, alterations, additions or demolitions to existing dwellings on a Residential Erf (hereinafter referred to as the works ): 4 P a g e

5 a suitably qualified company or person is appointed as Environmental Site Officer at the cost of the Registered Owner so as to ensure compliance by owners and the builders with the EMPs during the period of works; and an Environmental Contract is concluded between the Association and the Council, and also between the Association, each Registered Owner and his builder, to ensure compliance with the EMPs during the period of the works, provided that the costs incurred in complying with these obligations shall be for the account of the Registered Owner; ensuring that Registered Owners commence construction of the dwellings to the erected on the respective Residential Erven within 3 (three) years from date of registration of transfer of the relevant Residential Erven into the Registered Owner s name from the Developer(first transfer) and to complete construction of such dwelling within 1 (one) year of the date that the Member commences construction. For purposes of this clause 4.2.3: commence construction means the commencement of any work of whatsoever nature on the relevant Residential Erf, relating to the erection of a dwelling thereon as certified by the Association, whose certificate shall be final and binding on the Member; complete construction means completed dwelling for beneficial occupation, constructed and completed in accordance with the Design Manual and other Guidelines referred to in clause 4.1 and certified as complete by the Association, whose certificate shall be final and binding on the Member the promotion of environmental sensitivity and awareness amongst Members; and to ensure the protection and maintenance of the dam, stream and wetland areas on the Land; 4.3 to take transfer of the Common Areas and improvements thereon, as well as the shares in the Company, from the Developer at no consideration; 4.4 to control and maintain the structures, services, and amenities situated on the Common Areas; 4.5 to promote, advance and protect the communal and group interests of the Members generally; 4.6 to enter into service agreements with the Local Authority or any other authority or supplier of services; 4.7 to implement and maintain security measures and systems for controlled access to the Estate; 5 P a g e

6 4.8 to prescribe measures for the landscaping and development of Erven on the Estate, and for the architectural design and building improvements to Residential Erven on the Estate so as to ensure a harmonious and aesthetic development of the Estate, and to prescribe measures for the maintenance of such standards of development; 4.9 to register where necessary various service or other servitudes over common areas in the Estate in favour of the Local Authority and /or similar developments located in close proximity to the Estate and to register servitudes in favour of the Erven in the Estate over other land owned by the Association as are from time to time required; 4.10 to acquire by way of lease or ownership or otherwise, erven in the Estate constituting common areas for the purposes of road access to the Estate and to register transfer of ownership thereof in the name of the Association; to acquire and hold servitudes in the Association s favour for access to the Estate and also for the supply of services, including communication, surveillance and water to the Estate; 4.11 to formulate, enforce, modify, amend, add and delete the Estate and/or Conduct Rules and Regulations; 4.12 to appoint a Manager to manage the affairs of the Association and as such, delegate the management of the Association s affairs to an outside agency; 4.13 to include in the Title Deeds of the Common Areas to be transferred to the Association, that all such Common Areas shall not be sold, alienated, otherwise disposed of or transferred to any other party, nor Mortgaged; 4.14 to accredit architects and builders to be utilised by Registered Owners in respect of the resale of their Residential Erven, in accordance with such criteria as the Association may stipulate from time to time; 4.15 to accredit Estate Agents appointed by Registered Owners in respect of the resale of their Residential Erven, in accordance with such criteria as the Association may stipulate from time to time; 4.16 to contract with an Estate Agency or Agencies for the purposes of establishing an on site Estate Agent or Agents to attend to sales and resales of Residential Erven, it being recorded that the said on site Estate Agent/s shall be the only Agent entitled to place For Sale and/or To Let boards upon the Estate; 4.17 to enter into agreements with other developments located in close proximity to the Estate with regards to the sharing of facilities or services of any nature whatsoever, including but not being 6 P a g e

7 limited to security, landscaping, gardening, agricultural services, water, sewerage, electricity, roads, whether or not for the purposes of sharing the cost thereof; 4.18 to accredit service providers or contractors in respect of services to be rendered to members of the Association, including but not limited to pool cleaning and garden service contractors; 4.19 to grant or refuse a Registered Owner consent to transfer his Residential Erf, depending as to whether or not there has been compliance with the Constitution, the Architectural Guidelines, the Conduct Rules or such other Rules/determinations made by the Association or the Lifestyle Centre from time to time; or 4.20 to include in the Title Deeds of Residential Erven that transfer of such Erven shall be subject to the Association granting its written consent in respect of such transfer. 5. FINANCIAL YEAR END The financial year end of the Association is the end of May of each year. 6. MEMBERSHIP AND OBLIGATIONS 6.1 Membership of the Association shall be limited to and compulsory for all the Registered Owners provided that; a person who is entitled to obtain a certificate of registered title to any such Residential Erf shall be deemed to be the Registered Owner thereof; where any such Registered Owner is more than one person, all the Registered Owners of that erf shall be deemed jointly and severally to be one Member and as such their liability shall be joint and several. 6.2 Membership in terms of clause 6.1 shall commence simultaneously with the registration of transfer of the Residential Erf into the name of the Registered Owner. 6.3 When a Member ceases to be the Registered Owner he shall ipso facto cease to be a Member of the Association. 6.4 A Registered Owner may not resign as a Member of the Association. 6.5 The rights and obligations of a Member shall not be transferrable and every member shall: to the best of their ability further the objects and interests of the Association; observe all regulations made by the Association or the Trustee Committee. 7 P a g e

8 6.6 No member shall let or otherwise part with the occupation of his Residential Erf without obtaining the prior written agreement of the proposed occupier that he will be bound by the provisions of the Constitution. 6.7 The Member shall be liable for the acts or omissions of all persons occupying his Residential Erf, whether lawfully or unlawfully, including but not limited to lessees, guests, employees, invitees, contractors and agents. 6.8 Save in those instances where the Developer passes first transfer to a Registered Owner, in all other instances where a Registered Owner wishes to alienate or transfer his Residential Erf or in the event that the said Erf is owned by a company or close corporation or Trust, should the shareholder/s or member/s or Trustees Beneficiaries wish to alienate all of their shares or membership interest in such entity (hereinafter referred to as a resale ) he shall not be entitled to do so unless: the transferee becomes a Member of the Association and upon the registration of the transfer of the Residential Erf into the name of the transferee, he shall ipso facto become a Member of the Association; he obtains a clearance certificate from the Association which shall be given provided: the transferee of such Residential Erf agrees in writing to accept and abide by the Constitution of the Association; all amounts owing by the Registered Owner to the Association and Lifestyle Centre have been paid or satisfactorily secured; all obligations of the Registered Owner in terms of this Constitution and Conduct Rules have been complied with in full; and he pays to the Association the fees pertaining to such certificate as determined by the Association from time to time the Estate Agent appointed by the Registered Owner for the purposes of securing a Purchaser in respect of his Residential Erf has been accredited by the Association the Registered Owner utilizes the standard Deed of Resale documents as may be prescribed by the Association from time to time. 6.9 In the event that the Registered Owner should fail to commence/complete construction in accordance with the provisions of Clause hereof, the following shall apply: 8 P a g e

9 6.9.1 the Association shall be entitled to have the Residential Erf landscaped at the cost of the Registered Owner in the event that the Registered Owner should fail commence construction within the stipulated 3 (three) year period, for the period beyond the prescribed commencement date until such time as the Registered Owner commences construction, or in the event of non-completion of the construction within the prescribed period, for the period commencing from the prescribed completion date until the completion of the construction; the Registered Owner shall pay double the amount of levies payable by the Registered Owner in respect of each month or part thereof beyond the prescribed commencement date that the Owner has not commenced construction on the Residential Erf; the Registered Owner shall pay double the amount of levies payable by the Registered Owner in respect of each month of part thereof beyond the prescribed completion date that the Owner has failed to complete construction on his Residential Erf; and In the event that the Registered Owner fails to complete the construction within the prescribed 12 (twelve) month construction period ( the Construction Completion date), then and in such event the Registered Owner shall be liable to pay penalty levies as follows: Triple the amount of normal levies for the period calculated between the 1 st and 6 th month as from the Construction Completion date; and Thereafter and as from the 7 th month after the Construction Completion date, an additional penalty levy will be charged for every 6 (six) months that the construction is not completed up to where a maximum of 6 (six) levies. The charging of the penalty levies as aforesaid shall not in any way restrict or curtail the rights of the Association to take such other legal steps as may be available No Member shall be entitled to take occupation or allow any other person to take occupation of any dwelling or part thereof erected upon his Residential Erf until such time as the construction of such dwelling and the landscaping of the Erf has been fully completed and the Association has issued a Certificate of Completion in respect of such dwelling. In the event that a member should take occupation or allow occupation to be taken of his dwelling or part thereof, without first obtaining a Certificate of Completion form the Association, then and in such event the Association shall be entitled, without prejudice to any other rights that it may have, to have the Member and/or all persons occupying the dwelling or part thereof denied access to the Estate, or to charge such penalty levies as may be determined by the Association form time to time, calculated from the date 9 P a g e

10 upon which the said Member took occupation of the dwelling and the date upon which the Certificate of Completion is finally issued Members shall be responsible to landscape and maintain, at their own cost, the road verge/s separating their erf from the road/s, it being recorded that when the erf is located on a corner, there will be at least two road verges In as much as Members are entitled to the use and enjoyment of certain facilities within the Development, including the Lifestyle Centre, Winery and Private Open Spaces, Membership for this purpose only shall extend to the following persons: where the Member is a natural person, membership shall extend to the Member s spouse/common-law partner and any dependent children born of their marriage or union and who reside with them (hereinafter referred to as the family ); where the Member is a company, membership shall extend to the family of one director/shareholder only, alternatively to the various directors/shareholders of such company, subject to a maximum of five directors/shareholders; where the Member is a close corporation, membership shall extend to the family of one Member only, alternatively to the various Members of such close corporation, subject to a maximum of five Members; where the member is a trust, membership shall extend to the family of one of the trustees/beneficiaries of the Trust, alternatively to the trustees and beneficiaries of such trust, subject to a maximum of five trustees / beneficiaries. 7. APPROVAL FOR PROPOSED WORK 7.1 A Registered Owner shall not without the prior written approval of the Association: erect any building and / or structures of any nature whatsoever on his Erf; make any changes, additions or alterations to existing buildings and/or structures on his Erf, including changes to the external colour scheme; install or fix burglar bars to any external windows or doors of the buildings on his Erf; erect or construct any pergolas, patio awnings, shade ports, carports, washing lines, satellite dish, television, radio or any other type of antennae, wendy houses, walls or any other structures which may affect the external appearance of the improvements on his Erf. 7.2 The approval of the Association as contemplated in Clause 7.1 may only be given: 10 P a g e

11 7.2.1 after detailed plans of the proposed work as prepared by an architect who has been accredited by the Association, have been submitted to the Association; if the proposed work complies with the documents and requirements set out in clause 4.1 above; if the member has made payments of all costs which may be incurred in the obtaining this approval, including any scrutiny fees a determined by the Trustees from time to time; if the Association has entered into the Environmental Contract with the Council; if the Member and the Builder have undertaken to comply with the EMPs and have entered into a contract with the Association in this regard; if the Builder appointed by the Member has been accredited by the Association; it being recorded however that, notwithstanding the aforesaid, the Association may refuse to grant consent in respect of any of the structures referred to in Clause The Trustee Committee shall be entitled to determine a scrutiny fee from time to time, which shall be payable by the Member in respect of the scrutiny and approval of plans by the Association of the proposed work, payable in full to the Association upon first lodgement of any plans relating to the proposed work to the Association. 7.4 The Trustee Committee shall be entitled to determine a Sidewalk Deposit and a Builders Management Fee, payable by a Registered Owner so as to provide for the repairs of damage caused by the Registered Owner s builder as well as for the management and control of the building process on his erf, which deposit and fee shall be payable by the Registered Owner concerned in such amount and on such terms and conditions as may be determined by the Trustee Committee from time to time. 7.5 After obtaining the written approval of the Trustees for the proposed work, the Member shall submit the building and landscaping plans (if applicable) to the Council for approval, with the approval of the Trustees evidenced by an endorsement of the relevant plans as well as the payment of any fees payable to the Council for the scrutiny and approval of the plans by the Council. 7.6 After obtaining the approval of the Council for the proposed work, the member shall comply with all conditions, standards and requirements imposed by the Council and the Association. 11 P a g e

12 8. LEVIES 8.1 Only the owners of Residential Erven shall be jointly liable for expenditure incurred by the Association and as such, no other members shall be liable to pay any levies to the Association. 8.2 The Trustee Committee shall form time to time, determine the total amount of levies payable by owners of Residential Erven, as well as the amount of levies payable by each such individual member for the purpose of meeting all the expenses which the Association has incurred, or which the Trustee Committee reasonably anticipates the Association will require in respect of: facilities and services in connection with the Estate including, the Lifestyle Centre and the Croydon Winery (it being recorded that, to the extent that the Company is not in a position to finance the costs of Croydon Winery, such costs shall be borne by the Association who will, in turn, recover such costs from its members, provided however that the portion of the levies to be allocated to the costs of the Croydon Winery shall not exceed 30% of the levy); the payment of all expenses necessarily or reasonably incurred or to be incurred in connection with the management of the Association and its affairs; and the management and operation of the Lifestyle Centre and the Company; and any reserves which the Trustees may deem necessary. 8.3 In calculating levies the Trustee Committee shall take into account income, if any, earned by the Association, the Lifestyle Centre and the Company. 8.4 A Member shall be liable to pay levies with effect from the first month following the month in which the Member takes transfer of the Residential Erf in his name. The Registered Owner who is the Transferor of the Residential Erf shall accordingly be liable for the payment of levies calculated up to the last day of the month during which the transfer takes place to the Transferee and accordingly shall not be entitled to a refund from the Association of any levies calculated from the date of transfer to the end of the month in which the transfer took place. 8.5 The Trustee Committee shall estimate the amount which shall be required by the Association to meet the expenses during each year, together with such estimated deficiency, if any, as shall result from the preceding year, and shall determine a levy payable by the Members equal to or as near as is reasonably practical to such estimated amount. The Trustee Committee may include in such levies an amount to be held in reserve to meet anticipated future expenditure not of an annual nature. Every such levy shall be payable by equal monthly instalments due in advance on the first day of each month and every succeeding month of such year and shall be paid by way of a debit order in favour of the Association or by any other method as determined by the Trustee Committee from time to time. 12 P a g e

13 8.6 The Trustee Committee, may from time to time, make special levies upon the Members in respect of all such expenses as are mentioned in Clause 8.2, and such levies may be made in the sum of by such instalments and at such time or times as the Trustee Committee shall think fit. 8.7 Any amount due by a Member by way of a levy shall be a debt due by him to the Association. The obligation of a Member to pay a levy shall, subject to the provisions of Clause 8.4 above, cease upon his ceasing to be a Member of the Association, without prejudice to the Association s right to recover arrear levies. No levies paid by a Member shall under any circumstances be repayable by the Association upon his ceasing to be a member. A Member s successor in title to a Residential Erf shall subject to the provisions of Clause 8.4 be liable as from the date upon which he becomes a Member pursuant to the transfer of that erf, to pay the levy attributable to that erf. 8.8 Save in respect of a Special Levy, the total levy payable shall be borne jointly by the Members in equal shares. 8.9 No Member shall be entitled to any of the privileges of membership unless and until he shall have paid all levies and any other sum (if any) which shall be due and payable to the Association in respect of his membership thereof The levies payable by Registered Owners shall be the same in respect of each Residential Erf and as such no distinction will be made with regard to the size of the Residential Erf, the price paid in respect thereof, whether or not it is improved or the extent of any improvements. Where two or more Residential Erven have been consolidated, levies shall be payable in respect of each such Residential Erf as they existed prior to consolidation and as if such consolidation had not occurred Arrear levies shall bear interest calculated at 2% above the publicly quoted prime rate of interest as charged by the Association s Bankers from time to time, from due date of payment until the actual payment, calculated monthly in arrears. 9. BREACH 9.1 Should any Member: fail to pay on due date any amount due by that Member in terms of this Constitution or any regulation made thereunder and remain in default for more than 7 (seven) days after being notified in writing of such default by the Trustee Committee; or commit any other breach of the provisions of this Constitution or any regulation made thereunder and fail to commence remedying that breach within the period of 7 (seven) days after the receipt of written notice to that effect by the Trustee Committee and complete the remedying of such breach within a reasonable time; then and in either such event, the 13 P a g e

14 Trustee Committee shall be entitled on behalf of the Association, without prejudice to any other rights or remedies which the Trustee Committee of the Association or any other Member may have in law, including the right to claim damages: to institute legal proceedings on behalf of the Association against such Members for payment of such overdue amount or for performance of his obligations in terms of this Constitution or any regulation made thereunder, as the case may be; or in the case of Clause 9.1.2, to remedy such breach and immediately recover the total costs incurred by the Trustee or the Association in so doing from the Member. 9.2 Should the Trustee Committee institute any legal proceedings against any Member pursuant to a breach by the Member of this Constitution or any regulation made thereunder, then without prejudice to any other rights which the Trustee Committee or the Association or any other Member may have in law, the Trustee Committee / Association / Member (as the case may be) shall be entitled to recover from such Defaulting Member all legal costs incurred by it, including attorney and own client charges calculated on the non-litigious tariff recommended by the Law Society of the Cape of Good Hope (or its successors), tracing fees and collection commission. 9.3 Without prejudice to all or any of the rights granted to the Trustee Committee of the Association under this Constitution, should any Member fail to pay any amount due by that Member on due date, then such Member shall pay interest thereon calculated at 2% (two percent) above the publicly quoted prime rate of interest charged by the Association s bankers from time to time calculated from the due date of payment until the actual date of payment of such amount. A certificate issued by the Association s bankers as to the prime rate applicable shall constitute prima facie proof thereof. 10. CESSATION OF MEMBERSHIP No Member ceasing to be a Member of the Association for any reason shall, (nor shall any such Member s executor, curator, trustees or liquidators) have any claim upon or interest in the funds, reserves or other property of the Association or the Company. Without limiting the generality of this Clause, the said Member shall have no claim in respect of any dividends paid by the company of the Association. This clause shall be without prejudice to the rights of the Association to the claim from such Member or his estate any arrears of levies or other sums due from him to the Association at the time of his so ceasing to be a Member. 14 P a g e

15 11. DEALING WITH THE COMMON AREAS 11.1 Neither the whole nor any portion of the Common Areas, or any improvements thereon shall be: sold, alienated, otherwise disposed of, subdivided or transferred; or mortgaged; or subjected to any rights other than those contained in the present existing title deed of the Land, or to be imposed in the title deed(s) of the Common Area as required by any relevant authority or as contained in this Constitution, whether registered in a Deeds Registry or not, of use, occupation or servitude; Nor shall the vineyards be replaced with any other product, or the operation of the Winery be changed to any other business The Association is hereby empowered to take transfer and shall take title to the Common Areas at no consideration and as soon as is legally possible The Association acknowledges that the Council shall not be responsible for, and the Association shall be solely responsible for the construction, care, repair, maintenance, cleaning, upkeep, improvements and proper control of the Common Areas, all services therein (other than services provided and/or maintained by the Council, if any) and all amenities and improvements located or to be located on or within the Common Areas The Council shall at no time in the future assume ownership of the Common Areas. 12. THE LIFESTYLE CENTRE 12.1 The Association shall have the power to appoint an operator to operate and manage the Lifestyle Centre Members will be entitled to use the Lifestyle Centre on such terms and conditions as the Trustee Committee may prescribe from time to time The Lifestyle Centre will be for the private use of its members. However, the Association is entitled to grant additional membership to persons who are not members so as to ensure the financial sustainability of the Lifestyle centre In the event that a Member should lease his property for a period of not less than 12 (twelve) months, then and in such event the Member s right to use the Lifestyle Centre shall be transferred to the Tenant of the Member s property for the duration of such lease. 15 P a g e

16 13. CROYDON WINERY 13.1 The operation of Croydon Winery will be undertaken by the Company for its own account which will have as one of its main objects the production, marketing and sale of the wine to be produced under the exclusive banner of the Estate, as well as the production, marketing and sale of olives The direct benefit that each Member will acquire from Croydon Winery, provided that the wine production so allows, is their entitlement to receive 12 six-bottle cases of wine per annum from the Company at no charge, the opportunity of purchasing excess wine so produced by the Company, and also to have access to the Winery and Vineyards upon such terms and conditions as the Company and / or the trustees may decide from time to time The indirect benefit that the Members will ultimately acquire from the Company with the Association as its shareholder, is that any dividends declared by the Company to its Shareholder, the Association, which in turn may have the effect of reducing the levies payable by the Members to the Association It is recorded however that the Members shall not have any claim of any nature whatsoever in respect of the capital, assets, reserves or profits of the Company. Any dividends declared shall remain vested with the Association for the purpose of covering the current and future costs of the Association The Developer shall be entitled to hold a maximum of 4 (four) marketing functions per annum in perpetuity at the Winery upon such terms and conditions as may be agreed between the Developer and the Company and/ or the Association The Members acknowledge that they are aware of the fact that the Company will be conducting its business operations upon the Estate and that such operations will include inter alia, ploughing, planting, weeding, picking of grapes and olives, spraying, the manufacture and sale of wine, on week days, weekends and public holidays, which will result in labour activity and industrial noise, and the Members so hereby agree to allow Croydon Winery to so conduct its business without protest or intervention The Association shall be entitled to conclude Agreements on behalf of the Company with other Estates, regarding but not limited to the purchase of their grapes, the production and sale of wine, olives or any other matter as the Company may decide The Association shall enter into an Agreement of Lease with the Company in terms of which the Association will rent to the Company, who in turn will hire from the Association, the land, buildings and other fixtures and equipment making up and/or comprising of the Winery, inclusive of any outbuildings, vineyards, olive groves, irrigation systems, farming implements and equipment, at a 16 P a g e

17 monthly rental of R10 000,00 (Ten Thousand Rand), plus VAT per month, calculated with effect from the date on which the Winery becomes operational, which rental will escalate annually by 8% (Eight per cent) per annum. 14. SERVICES 14.1 With effect from the date upon which the Association is created in terms of clause 3, the obligation to maintain and repair Services (save to the extent that Council has agreed to assume the obligation to maintain and repair any of such services), and for the maintenance, upkeep and operation of the Lifestyle Centre and Croydon Winery, shall pass from the Developer to the Association, subject to the provisions of Clauses hereof, and subject to the terms of the Lease Agreement referred to in Clause The Council may, at its discretion, elect to assume the obligation to repair and maintain water, sewage and electricity services ( the Council Services ) on the Estate, provided that a written agreement is concluded between the Council and the Association which agreement shall include the following provisions: the Council Services will be provided to each Member on an individually metered basis; the Association shall allow the Council s staff 24 (twenty-four) hour access to all elements of the systems on the Estate in respect of the Council Services; the elements of the systems in respect of Council Services must comply fully with the Council s specifications and requirements; Council shall, after repairs to systems in respect of Council Services, only be obliged to reinstate roads, verges, footways and the like to such reasonable standards as may be applicable in non-private townships. Any further reinstatements over and above such standard shall be undertaken by the Association at its costs; the Association indemnifies the Council (or its duly appointed agent) against any responsibility for payment for repairs of any damage to roads, walls, fences, verges and the like which may be caused by the Council s vehicles or staff on the Estate; full servitude rights of way will be granted by the Association to the staff of the Council, and their vehicles, along all roads and pipeline cables routes for the purpose of inspection, maintenance and repair of the Council Services; the Common Areas shall be metered and the Association shall be liable for the payment of all costs relating to Council Services. 17 P a g e

18 14.3 The Association shall be responsible for internal collection of refuse on the Estate which shall be removed from the Estate by the Council from a centralised collection point. The cost of the internal refuse collection will be borne by the Association and paid for through the levies. 15. MANAGER 15.1 The Association shall be responsible for the appointment of any managers, it being contemplated that the affairs of the Association shall at all times be entrusted to a professional manager with appropriate executive powers so as to conform to the requirements of good corporate governance Subject to this Constitution and the terms of his employment, the Manager shall have the full power to manage and control the business and affairs of the Association, and may exercise all such powers of the Association and do all acts on behalf of the Association as may be exercised by the Association itself All instructions issued to the Manager by the Association shall be in writing and shall only be issued by the Chairman of the Trustees of the Association. The Manager shall not be required to act upon any instruction received from a member of the Association, other than that of the Trustees and the Chairman. 16. CONTRACTS AND REGULATIONS 16.1 Without limiting the powers referred to in Clause 19 hereof, the Trustee Committee may from time to time: make regulations governing, inter alia: the Members rights of use, occupation and enjoyment of the Common Areas; the external appearance of and the maintenance of the Common Areas and the buildings or other improvements erected thereon; the erection of any buildings and/or structures of any nature whatsoever, and the alteration, modification and renovation to such buildings and/or structures on Residential Erven, subject always to the Design Manual and the requirements of the Council; the conduct of Members generally; enter into agreement(s) with the local authorities governing the matters set out in sub- Clause 16.1 and any other incidental matters; 18 P a g e

19 enter into agreement(s) with the Council and other parties for the provision of Services on the Estate, or enter into agreements with other estates as envisaged in Sub-Clause 4.17; impose penalties which it considers appropriate in its sole discretion against Members who are in default of any of their obligations in the terms of this Constitution, including the terms of payment of such penalties. Without detracting from the generality of the aforegoing, the Trustees shall be entitled to impose penalties in the event of a Member not commencing or completing construction of his dwelling as provided in clause The Association shall enter into an Environmental Contract with the Council, which shall, inter alia, include the following conditions: the Association shall undertake responsibility for the monitoring and enforcement of the EMPs during the construction of the dwellings on the Residential Erven; the Association shall ensure that each Registered Owner together with his Builder complies with the provisions of the EMPs; the Association shall ensure that, prior to the construction of dwellings on the Residential Erven, a suitable qualified person is appointed as an Environmental Site Officer to ensure compliance by the Registered Owners and the Builders with the EMPs, the costs whereof shall be borne by the Registered Owner concerned Each Member undertakes to the Association that he shall comply with: the provisions of this Constitution; any regulations made in terms of sub-clause ; any agreements referred to in sub-clause insofar as those agreements either directly or indirectly impose obligations on him. 17. MANAGEMENT AND TRUSTEES 17.1 The affairs of the Association shall be managed and controlled by a Board of Trustees (the Trustee Committee ) consisting of 7 (seven) Trustees elected at a general meeting All the Trustees, shall after proposal and seconding, be elected by ballot or show of hands (if the meeting so determines) of those members who attend the general meeting of the Association, and successive Trustees shall be elected likewise at each successive annual general meeting of the Association, provided that no member shall be eligible for election unless he shall have been duly nominated and seconded in writing by other members and such written nominations, duly endorsed 19 P a g e

20 by the nominee, shall have been handed to the secretary not later than the day preceding the meeting and provided further that such nominee s levies for the current year shall have been paid. Should sufficient nominations not have been received prior to the meeting to ensure a Board of 7 (seven) Trustees, nominations will be accepted from the floor provided that such nomination is seconded at the meeting and accepted by the nominee The Trustee Committee shall consist of a chairman, vice chairman, secretary/treasurer and 4 (four) trustees. The Trustees shall from their ranks select a Chairman and Vice-Chairman. A quorum for any meeting of the Trustee Committee shall consist of 4 (four) trustees. Should a quorum not be formed as aforesaid, the meeting shall stand adjourned until a time to be decided upon by the chairman. All matters at any meeting shall be determined by a majority of those present and voting. In the event of an equality of votes, the chairman of the meeting shall have a casting vote The trustees shall cease to hold office: at every annual general meeting, but shall be eligible for re-election; by notice to the Trustee Committee if he resigns his office; if he is removed from office by the majority vote of the trustees; if he absents himself from 3 (three) consecutive meetings of the trustees without leave of absence; upon his Estate being sequestrated, whether provisionally of finally; upon the commission by him of any act of insolvency; or upon his conviction of any offence involving dishonesty Vacancies on the Trustee Committee may be filled by co-option at the instance of the majority vote of the Members Trustees shall receive no remuneration, but will be entitled to a refund of reasonably incurred expenses in the execution of their duties No Trustee shall be liable to the Association or any Member thereof or to any other person whomsoever, for any act or omission by himself, the Association or its servants or agents. Every Trustee is indemnified by the Association against loss suffered by him in consequence of any purported liability provided that such Trustee has, upon the basis of information known to him, acted in good faith, without intent and without gross negligence and/or without dishonesty. 20 P a g e

21 17.8 Meetings of the Trustees shall be held as frequently as may be decided by the Trustee Committee, and minutes shall be kept of all meetings and decisions Proper books of account of the administration and finances of the Association shall be kept and financial accounts shall be audited annually by the Auditors. 18. OFFICE OF TRUSTEES 18.1 Subject to clause 17.3, the Trustees shall appoint amongst themselves, a Chairperson and a Vice- Chairperson Subject to clause 17.4 the Chairperson and Vice-Chairperson shall hold their respective offices until the First Annual General Meeting following the date of their appointment, provided that any such office shall ipso facto be vacated by the Trustee holding such office upon his ceasing to be a Trustee for any reason Within 7 (seven) days of the holding of such Annual General Meeting, the Trustee Committee shall meet and shall elect from its own number the Chairperson and Vice-Chairperson, who shall hold their respective offices until the Annual General Meeting held next after their said appointment, provided that the office of the Chairperson or Vice-Chairperson shall ipso facto be vacated by the Trustee holding such office upon 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 any of the aforesaid offices at any time, the Trustee Committee shall immediately meet to appoint one of their members as a representative in such office Save as otherwise provided herein, the Chairperson shall preside at all meetings of the Trustee Committee, and all general meetings of Members, and shall perform all duties incidental to the office of the Chairperson and such other duties as may be prescribed by the Trustee Committee or of Members, and to allow or refuse to permit invites to speak at any such meetings, provided however, that any such invitees shall not be entitled to vote at any such meetings The Vice-Chairperson shall assume the powers and duties of the Chairpersons in the absence of the Chairperson, or his inability or refusal to act as Chairperson, and shall perform such other duties as may from time to time be assigned to him by the Chairperson or the Trustee Committee Trustees shall be entitled to be repaid all reasonable and bona fide expenses incurred by them respective in connection with the performance of their duties as Trustees and/or Chairperson, Vice- Chairperson, as the case may be, but save as aforesaid, shall not be entitled to any other remuneration fees or salary in respect of the performance of such duties. 21 P a g e

22 19. FUNCTIONS AND POWERS OF THE TRUSTEE COMMITTEE 19.1 Subject to the express provisions of this Constitution, the Trustee Committee 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 and, save as may be expressly provided herein, may exercise all such powers of the Association, as are required to be exercised or done by the Association in general meeting, subject nevertheless to such regulation as may be prescribed by the Association in general meeting from time to time, provided that no regulation made by the Association in general meeting shall invalidate any prior act of the Trustee Committee which would have been valid if such regulation had not been made The Trustee Committee shall have the right to vary, cancel or modify any of its decisions and resolutions from time to time The Trustee Committee may, should it so decide, investigate any suspected or alleged breach by any Members or Trustee in such reasonable manner as it shall decide from time to time The Trustee Committee may make regulations not inconsistent with this Constitution, or any regulations prescribed in the Association in general meeting: as to disputes generally; for the furtherance and promotion of any of the objects of the Association; for the better management of the affairs of the Association; for the advancement of the interests of Members; for the conduct of Trustee Committee meetings and general meetings; to assist it in the administering and governing the Association s activities generally; and shall be entitled to cancel, vary or modify any of the same from time to time Save as otherwise provided in the constitution, 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, town planners, managing agents, environmental consultants, and any other person or firm and/or any other employee/s whatsoever, for any reason thought necessary by the trustees and on such terms as the trustee shall decide. 22 P a g e