Constitution Emfuleni Ratepayers Association NPC Amended on: 03 September 2018 Amended by: G J van Rensburg Revision: 1.2 Contents 1. DEFINITIONS AND INTERPRETATION... 2 2. LEGAL ENTITY... 3 3. AIMS... 3 4. MEMBERSHIPS... 4 5. GENERAL MEETING... 5 6. MANAGEMENT COMMITTEE (MC)... 7 7. EXECUTIVE COMMITTEE (EC)... 9 8. ERPA CHAIRMAN AND CHAIRMAN OF MEETINGS... 10 9. WORKING GROUPS (WG)... 10 10. MINUTES... 11 11. MANAGEMENT OF AND REPORTING ON FINANCES... 11 12. AMENDMENTS TO THE Constitution... 12 13. TERMINATION OF THE ASSOCIATION... 12 14. NON-PROFIT ORGANISATION... 12 15. DISPUTE RESOLUTION... 14 16. GENERAL... 14 Last Updated By: - G J van Rensburg Page 1 Revision: - 1.2
1. DEFINITIONS AND INTERPRETATION 1.1. In this Constitution, unless the context indicates the contrary, the following definitions mean - 1.1.1. Aims, the aims of the Association as described in clause 3; 1.1.2. Annual General Meeting or AGM, the meeting referred to in clause 5.2; 1.1.3. Association or ERPA, the Emfuleni Ratepayers Association NPC, constituted as a non-profit company in terms of the Companies Act, 2008 (Act 71 of 2008) of South Africa; 1.1.4. Bank Account, an account held at a bank which is registered in terms of the Banking Act No. 90 of 1990; 1.1.5. Chairman, the chairperson, male or female, of the Management Committee (MC), who has been elected to the position of chairman as defined in clause 7.1; 1.1.6. Constitution, the constitution of the Association as contained in this document; 1.1.7. Corporate Member, any closed corporation, association, interest group, company, trust or non-profit organization that pays municipal rates in the Emfuleni district and which has been authorised by a resolution of such organization to apply for membership of the Association and has duly been admitted as a member in terms of clause 4.1; 1.1.8. Executive Committee or EC, the committee as described in clause 7.1; 1.1.9. Extraordinary General Meeting, the meeting referred to in clause 5.3; 1.1.10. General Meeting, any annual general meeting or any extraordinary general meeting; 1.1.11. IT Act, the Income Tax Act No. 58 of 1962; 1.1.12. Management Committee or MC, the committee described in clause 6; 1.1.13. Member, any person who, in terms of clause 4.1, was accepted as a member and whose membership has not been terminated; Members and Membership are interpreted accordingly; 1.1.14. Municipality or ELM, the Emfuleni Local Municipality as constituted in terms of the Municipal Structures Local Government Act No.117 of 1998, including all of its management structures, office bearers and officials; 1.1.15. Person, any natural person, legal entity or trust; 1.1.16. Secretary, the member of the Executive Committee who has been Last Updated By: - G J van Rensburg Page 2 Revision: - 1.2
elected to the position of secretary as defined in clause 7.1; 1.1.17. Emfuleni, the Emfuleni Local Municipality (GT421); 1.1.18. Treasurer, the member of the Executive Committee who has been elected to the position of treasurer as defined in clause 7.1; 1.1.19. Vice-chairman, the member of the Executive Committee who has been elected to the position of vice-chairperson, male or female, as defined in clause 7.1; and 1.1.20. Ward, a municipal ward as defined in the Municipal Systems Act; 1.2. In this Constitution 1.2.1. words that denote the singular include the plural and vice versa, and 1.2.2. the male gender includes both the female and neuter genders. 1.3. The headings are only included for reference purposes and should not be taken into account in the interpretation of this Constitution. 2. LEGAL ENTITY The Association - 2.1. exists independently of its Members; 2.2. exists notwithstanding changes to its Membership, MC and EC; 2.3. has the capacity to acquire, own and control property; 2.4. has the capacity to engage in legal proceedings; 2.5. has the capacity to decide on Membership; 2.6. is not affiliated to any political party; 2.7. has the capacity to borrow money to promote its aims; 2.8. has the capacity to donate money to a non-profit organization, as defined in Act No. 71 of 1997, in order to promote its aims; 2.9. may open and operate one or more bank accounts in the name of the Association and authorize persons to carry out financial transactions on behalf of the Association; 2.10. is a non-profit organization; and 2.11. is, for purposes of clarity, a voluntary association of persons with a legal identity. 3. AIMS 3.1. The Association strives to promote its aims primarily, but not exclusively, within the geographical area of Emfuleni. 3.2. The overall aims of the Association are Last Updated By: - G J van Rensburg Page 3 Revision: - 1.2
3.2.1. the promotion of human rights, democracy and good governance ; 3.2.2. the conservation, rehabilitation and protection of the natural environment; including flora, fauna and the biosphere; 3.2.3. the promotion and protection of areas and buildings of historical or cultural importance; 3.2.4. the promotion of the principles and practices of sustainability in all its facets, such as in policy, management, finance, planning and development; and 3.2.5. the advancement of education and awareness in relation to the matters and aims as outlined in this clause 3.2. 3.3. The complementary aims of the Association are 3.3.1. the active drawing together everyone who supports the overall aims in clause 3.2; 3.3.2. the support of the Municipality in its legitimate policy directives, affairs and activities that are in line with the Association s overall aims; 3.3.3. the monitoring of the actions of the Municipality s management structures, office bearers and officials in compliance with the Constitution of South Africa, legislation and legal principles, and the institution of corrective measures where such actions are contrary to the Constitution of Incorporation of South Africa, legislation or legal principles; 3.3.4. the encouragement of an active interest and participation in all facets of local government among the residents of Emfuleni; and 3.3.5. the protection and promotion of the legitimate interests of all the residents of Emfuleni. 4. MEMBERSHIPS 4.1. Members 4.1.1. Any person 4.1.1.1. who subscribes to all of the aims of the Association and 4.1.1.2. who can submit proof to the MC that he regularly pays municipal service charges and/or rates in Emfuleni, as well as the spouse or companion of such person, may apply to become a member of the Association. 4.1.2. Applications for membership shall be made on the prescribed form and submitted to the MC for consideration. 4.1.3. The MC may use its discretion to approve or refuse membership without providing reasons. Last Updated By: - G J van Rensburg Page 4 Revision: - 1.2
4.1.4. Membership for a new member extends for the first term from the date of admission to 31 December of the same year. Membership for an existing member extends from 1 January to 31 December each year. 4.1.5. Any person who complies with clause 4.1.1 may apply for life-long membership, except for the provision that a Corporate Member shall not qualify for life-long membership. 4.1.6. The MC may use its discretion to award honorary membership to deserving persons. 4.2. Termination of membership 4.2.1. If a Member allows his subscription to fall into arrears, the MC may decide to terminate his membership. 4.2.2. If a Member acts in contravention of the provisions of the Constitution, his membership may be terminated by the MC following an investigation. The MC shall use its discretion to dispose of the matter, which may include the termination of membership without providing reasons. 4.2.3. A Member, whose membership has been terminated, may reapply for membership. Such application shall be considered by the MC and the provisions of clause 4.1 apply mutatis mutandis. 4.2.4. A Member may terminate his membership by giving notice in writing to the MC. 4.3. Membership Fees 4.3.1. The annual subscription is payable in advance on 1 January. 4.3.2. The fee for life-long membership is a once-off payment. 4.3.3. The annual and life-long membership fee shall be determined, from time to time, by the MC. 4.3.4. An honorary member shall be exempt of membership fees. 4.3.5. In the event of membership being terminated for whatever reason, no membership fee or portion thereof is repayable. 5. GENERAL MEETING 5.1. Functions and powers 5.1.1. The members present and those who are properly represented at any General Meeting, collectively represent the highest authoritative body of the Association. 5.1.2. No meeting, elected official, body, work group, Member or other grouping of the Association shall make decisions on behalf of the Association or carry out activities that are contrary to its aims. Last Updated By: - G J van Rensburg Page 5 Revision: - 1.2
5.2. Annual General Meeting 5.2.1. An Annual General Meeting of Members of the Association shall be held not later than 28 April every year. 5.2.2. The EC, in consultation with the MC, determines the date of such meeting and draws up the agenda for the meeting. 5.2.3. A Member may submit a proposal or an agenda item to the Annual General Meeting, provided that he notifies the Secretary in writing about the proposal before 1 April of the year concerned. 5.2.4. The MC notifies Members at least 14 (fourteen) calendar days before the date of the Annual General Meeting as to the date thereof and requests, inter alia, nominations for the new MC. 5.2.5. At the Annual General Meeting 5.2.5.1. the Chairman of the MC reports on the activities of the previous year; 5.2.5.2. the Treasurer submits an audited annual financial report for approval; and 5.2.5.3. the new MC is elected. 5.3. Extraordinary General Meeting 5.3.1. An Extraordinary General Meeting shall be convened if 5.3.1.1. the MC or the EC so decides or 5.3.1.2. at least 20 (twenty) Members request the MC to hold such meeting. 5.3.2. If the MC or EC fails to convene an Extraordinary General Meeting within 14 (fourteen) days of the request referred to in clause 5.3.1.2 being submitted, the Members who requested the meeting may themselves convene such meeting, subject to 14 (fourteen) calendar days notice being given to Members. 5.3.3. Only matters for which an Extraordinary General Meeting has been convened may be dealt with at such meeting. 5.4. Provisions for General Meetings. The following provisions apply in respect of all General Meetings: 5.4.1. Notice of a General Meeting shall be sent to all Members in writing or electronically at least 14 (fourteen) calendar days before the meeting (the date and time of the postmark or e-mail shall be determinative). 5.4.2. A General Meeting or a portion thereof may be open to the public, or in terms of a decision of the Chairman or the MC, be restricted to Members only. 5.4.3. At all General Meetings 20 (twenty) Members (whether in person or represented by proxy) form a quorum. 5.4.4. If a quorum is not present at any General Meeting, a follow-up Last Updated By: - G J van Rensburg Page 6 Revision: - 1.2
meeting shall be held within 21 (twenty-one) calendar days; at which meeting those Members present shall form a quorum and the decisions of the Members present shall be valid. 5.4.5. All decisions at a General Meeting shall be by a simple majority of the votes cast, except where changes to the Constitution are contemplated, as provided for in clause 12. 5.4.6. If a matter is put to the vote, every Member that is present or is properly represented has 1 (one) vote. Voting may take place by a show of hands or, at the request of the Chairman or at least 20 (twenty) Members present or those properly represented, by ballot. 5.4.7. In the case of an equality of votes, the Chairman shall be entitled to a casting vote in addition to his deliberative vote. 5.4.8. Every Member has the right to nominate another Member to act as his proxy and to attend and to vote on his behalf at a General Meeting. An instrument appointing a proxy shall be in writing on a form prescribed by the MC. A Member representing other Members by proxy may only act on behalf of a maximum of 4 (four) other Members. Proxy forms shall be submitted to the Secretary at least 24 (twenty-four) hours before the General Meeting concerned. 6. MANAGEMENT COMMITTEE (MC) 6.1. Election 6.1.1. The MC is elected at the Annual General Meeting. 6.1.2. Any election of a Member to the MC takes place in accordance with the following provisions: 6.1.2.1. Any natural person that has been a Member of the Association for an uninterrupted period of at least 365 (three hundred and sixtyfive) calendar days before the date of the Annual General Meeting and whose membership fees are fully paid-up, qualifies to be nominated and elected to the MC. A Corporate Member may not be nominated or elected to the MC. 6.1.2.2. For any Ward from which Members are present at the Annual General Meeting, a maximum of 5 (five) Members may be elected to the MC. A MC Member for a Ward is elected by the ERPA Members of the Ward concerned. 6.1.2.3. A Member who at the same time is an office bearer or an official of the Municipality may not serve on the MC. A member of the MC that becomes an office bearer or an official of the Municipality is therefore deemed to have resigned from the MC on the date on which he became an office bearer or an official. 6.1.2.4. Any Member can nominate any other Member for election to the MC. A nomination may be made verbally at the time of the election Last Updated By: - G J van Rensburg Page 7 Revision: - 1.2
or in writing before such election. A written nomination shall be made on the prescribed form (as determined by the MC) and submitted to the Secretary at least 2 (two) calendar days before the date of the Annual General Meeting. The nomination form shall be signed by the nominating as well as the nominated Member. 6.1.2.5. A minimum of 5 (five) Members shall be elected to the MC; except for the provision that, if the number of members of the MC should for any reason fall below 5 (five), unless the vacancy is filled in terms of the provisions of clause 6.1.2.6, the remaining members will be able to exercise all the powers and competences until the next Annual General Meeting. 6.1.2.6. If a vacancy in the MC occurs; the remaining MC Members may in consultation with Members of the ward concerned designate another member from that ward to fill the vacancy, subject to the provisions of clause 6.1.2.1. In such a case the term of office of the designated member shall extend until the next Annual General Meeting. 6.2. Functions and Powers of the MC 6.2.1. The management and control of the Association vests in the MC which has all the powers and competences to carry out any act that the Association could or would be able to carry out in terms of this Constitution or otherwise (save for such acts as the Association shall transact at a General Meeting). In addition to the general powers and competences of the MC, and without detracting from such powers and competences, the MC is empowered, barring the provisions of this Constitution, to use its discretion to 6.2.1.1. appoint agents, officials and employees, whether temporary or permanent, determine their duties and remuneration; and terminate the services of such persons; 6.2.1.2. enter into agreements in the name of the Association; 6.2.1.3. lay down rules, policy guidelines and procedures for the affairs of the Association; 6.2.1.4. appoint an auditor or an accounting officer as contemplated in clause 11, on condition that he is not a member of the Association; use its discretion to determine his remuneration, and terminate the services of such auditor or officer; 6.2.1.5. acquire moveable goods that are reasonably required by the Association; 6.2.1.6. receive and make donations; 6.2.1.7. enter into loan agreements in order to further any of its aims; 6.2.1.8. exercise the powers and competences that are assigned to the MC elsewhere in the Constitution; Last Updated By: - G J van Rensburg Page 8 Revision: - 1.2
6.2.1.9. institute, pursue, terminate and settle legal proceedings (including any arbitration); and 6.2.1.10. delegate powers and competences to the EC. 6.2.2. The MC may use its discretion and from its own ranks elect, in terms of clause 9, committees as well as working groups, comprising one or more Members that shall report to the MC. 6.2.3. The MC is authorised to delegate specifically formulated tasks or activities to committees. 6.2.4. The MC may co-opt Members. The number of co-opted Members may not exceed one third of the number of elected MC Members. The coopted Members enjoy the same duties, rights and privileges as the ordinary MC Members. 6.3. General Provisions for the MC 6.3.1. The MC meets on a regular basis, following notification by the Secretary or 2 (two) members of the EC. 6.3.2. At meetings of the MC, half of the number of members of the MC forms a quorum. 6.3.3. A member of the MC that is absent from 3 (three) consecutive meetings of the MC without an acceptable reason, may following a decision by the MC (from which he shall recuse himself) lose his membership of the MC. 6.3.4. A representative of an interest group from the community, who endorses the aims of the Association, may be co-opted as an observer by the MC. 6.3.5. A member of the MC, who has a financial interest in an issue, shall recuse himself from the meeting during the discussion and voting on the issue, in order to prevent any conflict of interest from arising. 6.3.6. All decisions by the MC are made by a simple majority of votes. 6.3.7. At all meetings of the MC, voting takes place by a show of hands, unless the Chairman determines that voting should take place by ballot. 6.3.8. In the case of an equality of votes, the Chairman shall be entitled to a casting vote in addition to his deliberative vote. 7. EXECUTIVE COMMITTEE (EC) 7.1. The MC elects from its own ranks a Chairman, Vice-Chairman, Secretary, Treasurer and one additional member, who together form the EC. 7.2. The EC is responsible for the general administration and financial management of the Association and the execution of any powers and Last Updated By: - G J van Rensburg Page 9 Revision: - 1.2
competences delegated to the EC in terms of clause 6.2.1.10. 7.3. Powers and functions of the Vice-chairman, Secretary or Treasurer may be delegated by the EC or the MC to another member of the MC, during the absence of the particular office bearer. 7.4. The EC meets when necessary following notification. 7.5. At meetings of the EC, 3 (three) members form a quorum. 7.6. A member of the EC who has a financial or material interest in a matter shall recuse himself from the meeting during the discussion and voting on the matter, in order to prevent any conflict of interest from arising. 7.7. All decisions by the EC are made by a simple majority of votes. 7.8. In the case of an equality of votes, the Chairman shall be entitled to a casting vote in addition to his deliberative vote. 7.9. Decisions of the EC are reported to the MC. 7.10. The EC may in the case of an urgent matter make a decision, provided that 7.10.1. the decision is communicated to the MC as soon as possible, and 7.10.2. the Management Committee reserves the right to reverse such urgent decision. 8. ERPA CHAIRMAN AND CHAIRMAN OF MEETINGS 8.1. The Chairman may not serve consecutively for more than 3 (three) periods of 1 (one) year each. 8.2. The Chairman acts as chairman at all meetings of the Association. If the Chairman cannot be present, the Vice-chairman acts as chairman. If neither the Chairman nor the Vice-chairman is present at a meeting, the meeting shall elect another chairman. 8.3. During periods when the Chairman is absent, his powers and functions are exercised by the Vice-chairman. If the Vice-chairman is also not available, an acting chairman is appointed by the MC or the EC. 9. WORKING GROUPS (WG) 9.1. The MC may use its discretion to establish WG for specific purposes or functions, and it may disband a WG by notice in writing. 9.2. A WG consists of not more than 20 (twenty) members, of which number at least 2 (two) shall be members of the MC, in order to maintain and ensure contact with the MC. 9.3. The other members of the WG may be other Members or Nonmembers, who are knowledgeable about and are interested in the Last Updated By: - G J van Rensburg Page 10 Revision: - 1.2
matter or matters that the WG is dealing with. 9.4. Although the Management Committee may propose guidelines to a WG, the WG may follow its own method and program and the MC shall have no right to veto its activities. 9.5. Each WG shall report on its activities to the MC at least twice a year. Regular and comprehensive reporting to the MC shall be aimed at. 9.6. A WG may not make a decision on behalf of the Association or issue an official statement. 10. MINUTES 10.1. The Secretary is responsible for the minutes of all the meetings of the Association. 10.2. The minutes of General Meetings and MC meetings shall be recorded in a book of minutes. If the minutes are recorded on loose pages, such pages shall be pasted in the book of minutes. 11. MANAGEMENT OF AND REPORTING ON FINANCES 11.1. The financial year of the Association extends from 1 January to 31 December. 11.2. All financial transactions on behalf of the Association, shall on the one hand be authorised by the Treasurer, and either the Chairman, the Vice-chairman or the Secretary on the other. In the absence of the Treasurer, his functions shall be carried out by any two of the other members of the EC. 11.3. The Treasurer shall, in accordance with generally accepted accounting practices 11.3.1. keep accounting records of income, expenditure, assets and liabilities; and 11.3.2. within 2 (two) months of the end of the financial year, compile financial statements that include at least the following 11.3.2.1. a statement of income and expenditure for the financial year; and 11.3.2.2. a balance sheet indicating the assets, liabilities and financial position as at the end of the financial year. 11.4. Within 1 (one) month of compiling the financial statements, a written report by an auditor or an accounting officer (as defined in the Act on Closed Corporations, No. 69 of 1984) shall be submitted to the Association, declaring that 11.4.1. the financial statements of the Association are in accordance with its financial records; Last Updated By: - G J van Rensburg Page 11 Revision: - 1.2
11.4.2. the accounting policy of the Association is appropriate and has been properly applied in compiling the financial statements; and 11.4.3. the Association complies with the provisions relating to financial matters as contained in the Non-profit Organizations Act No. 71 of 1997 and with the Constitution of the Association. 11.5. The Treasurer shall, for the prescribed period, hold in safekeeping the original or copies thereof of each of the Association s account books, supporting documents, records of contributions or levies paid by Members, income and expenditure statements, balance sheets and the reports of the auditor or the accounting officer. 11.6. The annual financial report of the auditor or accounting officer is submitted to Members at the Annual General Meeting. 12. AMENDMENTS TO THE Constitution 12.1. Proposals to amend or make additions to the Constitution may only be made by Members. Such proposals shall be clearly formulated and submitted in writing to the MC, in order to make a recommendation to a General Meeting. 12.2. Amendments or additions to the Constitution may only be adopted at a general meeting by a three-quarters majority of the Members present who are eligible to vote, or their duly authorised representatives. 12.3. The provisions of clause 12.2 shall not be amended. 13. TERMINATION OF THE ASSOCIATION 13.1. The existence of the Association may be terminated by a decision at a General Meeting, on a recommendation by the MC, provided that a two-thirds majority of Members present at the General Meeting who are eligible to vote, or their duly authorised representatives, are in favor of such termination. 13.2. In the case of such termination, the MC shall have a duty to transfer the assets of the Association, after all the liabilities of the Association have been paid, to an association of a similar nature, that is a Nonprofit Organization in term of clause 30 of the IT Act and will promote the interests of the residents of Emfuleni at the local authority level. 14. NON-PROFIT ORGANISATION Notwithstanding any other provision to the contrary in this Constitution, the Association and the management thereof is always subject to the following provisions: 14.1. All the activities of the Association are exercised on a non-profit basis and with an altruistic and philanthropic purpose. Last Updated By: - G J van Rensburg Page 12 Revision: - 1.2
14.2. None of the activities of the Association are intended to directly or indirectly promote the economic self-interest of any office bearer or employee of the Association, other than by way of reasonable remuneration that is payable to such office bearer or employee. 14.3. Every activity of the Association that is practiced by the Association is for the benefit of, or generally accessible to, the general public, including any sector thereof (except small and exclusive groups). 14.4. The MC shall be comprised of at least 3 (three) persons who are not connected to each other as described in the definition of connected person contained in section 1 of the IT Act. No person may by himself either directly or indirectly control the decision-making authority as a whole of any body of the Association. 14.5. The Association is prohibited from directly or indirectly disbursing any of its funds (except in the course of carrying out any of its public benefit activities) and shall utilize its funds solely for the aims of the Association. 14.6. The Association is prohibited from accepting a donation that may be recalled at the insistence of the donor for reasons other than the material failure by the Association to comply with the obvious intentions and conditions implied by the donation, including any misrepresentation concerning the tax deductibility thereof in terms of section 18A of the IT Act: Except in the case where a donor is an approved public benefit organization or an institution, council or body that is exempt of tax in terms of section 10(1)(cA) of the IT Act and that has as its sole or principal aim, the practice of any public benefit activity, a donor may not impose any condition that will enable such donor or any person connected to the donor to derive any benefit either directly or indirectly from the application of the donation. 14.7. The Association shall provide a copy of any amendment to the Constitution to the Commissioner of the South African Revenue Service. 14.8. The Association shall not knowingly be a party to, and shall not knowingly permit that it be used as part of a transaction, operation or scheme, the sole or main purpose of which is the reduction, postponement or evasion of a liability in respect of any tax, right or levy which, failing such transaction, operation or scheme, would have been payable or would have become payable by a person in terms of the IT Act or any other Act administered by the Commissioner of the South African Revenue Service. 14.9. The Association may not pay any excessive remuneration, as defined in the Fourth Annexure of the IT Act, to any employee, office bearer, member or other person, taking into account what is considered reasonable in the sector and relative to the service rendered, and may not in any way favor any person economically that is not consistent Last Updated By: - G J van Rensburg Page 13 Revision: - 1.2
with the aims of the Association. 14.10. The Association shall comply with the reporting requirements as determined by the Commissioner of the South African Revenue Service. 14.11. The Association may not use any of its resources to directly or indirectly support, promote or oppose any political party. 15. DISPUTE RESOLUTION Any dispute that may arise concerning 15.1. this Constitution; or 15.2. any matter arising from this Constitution; shall be referred to the Arbitration Foundation of Southern Africa in accordance with the rules of that organization. 16. GENERAL 16.1. Each of the provisions of this Constitution is deemed to be separate and divisible from the other provisions of this Constitution. If any arbitrator or court having jurisdiction finds that any of the provisions of this Constitution are invalid and/or unenforceable, the remaining provisions of this Constitution remain in force notwithstanding the invalidity or unenforceability of certain provisions of this Constitution. 16.2. The Association indemnifies every Member, official and employee against all costs, claims, losses, and expenses that he may incur or for which he may be held liable in the execution of his duties, unless the particular cost, claim, loss or expense was caused by his own dishonesty or fraud. ---ooo000ooo--- Last Updated By: - G J van Rensburg Page 14 Revision: - 1.2