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CONSTITUTION OF THE
BARDOLINO
LIFESTYLE RESORT
2 Constitution of the Bardolino Lifestyle Resort
1. DEFINITIONS AND INTERPRETATION
1.1 In this Constitution, the following words and expressions will have the following
meanings unless the context indicates otherwise:
Alienation to waive ownership of any Erven/Unit or part thereof,
through a sale, exchange, donation, deed, intestate
Succession, will, session, award to a beneficiary of a
trust, sale of shares in a company or member interest
in a close corporation, delegation, court order,
insolvency or liquidation, prescription or expropriation,
and irrespective of whether the alienation is subject to
a suspensive or resolution condition, and "alienation"
shall have a corresponding meaning, provided that the
Allowance of registration of a right of occupation (life
law), usus, usufruct, habitat or long term lease
agreement with respect to a Erven/Unit will be
regarded as an alienation.
Alienation Levies
the levy payable by a Member (Transferor) of the
Association in terms of clause 15 of this Constitution
during Alienation or Assumed Alienation of an
Erven/Unit.
Assumed alienation The change in membership of a Closed Corporation or
change in shareholding in a company or when a trust
nominates a third party as a occupier, will be regarded
as a alienation for purposes of this Constitution.
Auditor the Auditor of the Association as may be appointed by
the Association in terms of clause 24 of this
Constitution.
Budget a financial estimate per item of income and expenses
of the Association and/or Schemes for the following
financial year.
3 Constitution of the Bardolino Lifestyle Resort
Code of Conduct
the Code of Conduct as approved by the Association
referred to in Clause 21 of this Constitution.
Committee the Executive Committee of the Association.
Committee Member a Member of the Committee
Common Property
as defined by the Sectional Titles act, as well as the
entrances, roads, trail ways, open areas, security
boundaries and all buildings, features or features,
improvements, facilities and services within the
Development intended for the general use and benefit
of Members.
Constitution This Constitution
Developer Purple Winds Investment Pty Ltd, Registration Number
1998/012946/07, in conjunction with Exto
Developments Pty Ltd, Registration number
2015/376232/07.
Development the entire development scheme known as Bardolino
Lifestyle Development consisting of residential Erven
as well as Sectional Title erf/units.
Development Period
the period from the date of registration of transfer of the
first Erven/Unit to an Owner, until the Completion Date.
Erven any Erven in Development, excluding the Common
Property.
Fair Market Value
Is the estimated amount for which a property should
exchange on the date of valuation between a willing
buyer and a willing seller in an arm`s length transaction
after proper marketing wherein the parties had each
acted knowledgeably, prudently, and without
compulsion.
4 Constitution of the Bardolino Lifestyle Resort
Financial Year the period from 1 March of each year to the last day of
February of the following year., and
Guidelines
the Architectural Guidelines of the Association as
referred to in Clause 19 of this Constitution
Health Care Center
the Care Facility that will be erected within
Development.
Healthcare Operator
the Healthcare Centre Operator as may be designated
by the Developer or the registered owner of the Health
Care Centre.
Land Erven 3972 Hartenbos which is subdivided as a
Housing Development Scheme
Levies
the contributions (ordinary levies) by Members of the
Association payable in terms of clause 14 of this
Constitution.
Levy Fund
A fund for the performance of all the functions of the
Association to cover all expenses and other obligations
of the Association.
Local Authority
the Municipality of Mossel Bay and its successors in
title
Meal Levies the contribution payable by the Members of the
Association in terms of clause 14 of this Constitution
Member A member of the Association as defined in clause 5 of
this Constitution.
Month A Calendar month
Nominated resident(s)
the occupier(s) of a Erven/Unit nominated in writing by
the registered owner of that Erven/Unit, which must be
5 Constitution of the Bardolino Lifestyle Resort
50 years or older and the only person allowed to
occupy the Erven/Unit subject to the provisions of this
Constitution
Occupier any rightful resident of a dwelling
Owner the registered owner of a Erven/Unit, who has obtained
transfer from the Developer, and the successors in title
of such person
Purchase Agreement the agreement whereby a Erven/Unit is sold.
Resolution General Resolution
A resolution accepted by the general majority of not
less than 50% (fifty percent) plus one vote of members
present or proxy at a general meeting of the
Association
Special Resolution
a resolution accepted by the majority of not less than
75% (seventy five percent) of the votes of Members
present or of a proxy at a general meeting of the
Association with prior written notice of at least 14 days
specifying the proposed special resolution.
Section A section of the scheme, being a Sectional Title
Scheme as defined in the Sectional Titles Act 95 of
1986.
Special Levies the contributions payable by members of the
Association in terms of clause 14 of this Constitution.
Unit in respect of a Scheme, being a Sectional Title
Scheme, a unit as defined, and subject to the Sectional
Titles Act, 1986, and the Sectional Titles Management
Act, 2011, and regulations.
Unanimous resolution A resolution accepted, by all the members who are
6 Constitution of the Bardolino Lifestyle Resort
present at a general meeting, at which meeting at least
80% (eighty percent) of members are present, or are
represented with a proxy, with at least 14 days prior
notice, specifying the contents of the proposed
unanimous resolution, to be put before the members.
Year A calendar year.
1.2 Headings of clauses serve for convenience and will not be taken into account in the
interpretation of this Constitution.
1.3 Unless the context clearly indicates the opposite:
1.3.1 words indicating only the singular, also the plural and the reverse will also
apply;
1.3.2 the male gender will also include the female and the indifferent gender and the
indifferent gender will also include the male and female gender;
1.3.3 A reference to the natural person will include legal entities and the reverse will
also apply;
1.4 Where numbers are referred numerically or in words in the Constitution and there is a
contradiction, the words will be preferred.
1.5 If any provision in a definition in this Constitution is a substantive provision that
establishes rights or imposes obligations in respect of any of the Members of the
Association then, notwithstanding the fact that it appears only in the definition clause of
this Constitution, that provision shall apply as if it were a substantive provision of this
constitution.
1.6 Where any number of days is prescribed in this Constitution, it will be calculated
excluding the first and including the last day unless the last day falls on a Saturday,
Sunday or proclaimed public holiday in the Republic of South Africa, in which event it
will be the first following day which is not a Saturday, Sunday or proclaimed public
holiday.
2. ESTABLISHMENT OF THE ASSOCIATION
7 Constitution of the Bardolino Lifestyle Resort
The Management Committee of the Bardolino Lifestyle Village, (hereinafter referred to as "the
Association") is constituted as a body corporate for the Housing Development Scheme under
Section 29 of the Land Use Planning Ordinance, No. 15 of 1985, in accordance with the
conditions imposed upon approval by the Local Authority, under Section 25(1) and 42 of the
Ordinance for the subdivision of land.
2.1 The Association shall be deemed to be erected on registration of the first Erven/Unit.
2.2 The Association shall be responsible for the management, administration and
management of the Development, including the erf/units, the Erven, the Land, the
Common Property and the Facilities and Services for the benefit of all Members and for
the compliance of this Constitution, the Guidelines and the rules of conduct.
3. CREATION AND STATUS
3.1 This is the Constitution of the Bardolino Lifestyle Resort, hereinafter referred to as the
Association. The Constitution and all Annexes thereto bind all Owners and Residents.
3.2 The Association shall be deemed to have been established on the date of registration of
transfer of the first Erven/Unit from the Developer to an Owner.
3.3 The Association will:
3.3.1 be an association with legal personality; and
3.3.2 not operate for profit but for the benefit of Members.
3.4 The Association will enjoy perpetual succession and be competent to sue or be sued.
3.5 The Association has the power to acquire, deal with, dispose of movable and
immovable property and acquire, assign or alienate real rights in its own name. It may
conclude contracts and acquire rights and obligations and sue or be sued in their own
name.
3.6 The domicilium citandi et executandi of the Association will be a physical address within
the magisterial district in which the Development is situated, as may be determined by
the Committee from time to time.
8 Constitution of the Bardolino Lifestyle Resort
3.7 The Association may not pay any portion of its funds to members except in the event of
correction of errors or in terms of a court order or settlement of a claim for damage or in
the event of the destruction of the Development.
3.8 When the Association dissolves, the remaining assets must be transferred or distributed
to a similar association or persons as approved by the Association.
3.9 Funds available for investments may only be made with a financial institution as defined
in section 1 of the Financial Services Act, 1990 (Act No. 97 of 1990), as amended, and
in securities as listed on the stock exchange as defined in section 1 of the Stock
Exchange Control Act, 1985 (Act No. 1 of 1985), as amended, is invested.
3.10 The Association may not be involved in any transaction, act or scheme with the main
purpose to reduce, suspend or waiving of liability for any tax, excise or levy in respect of
the Income Tax Act or any other law as administered by the Commissioner of the South
African Revenue Service is or was not.
3.11 The Association will submit its revenue return together with the financial statements at
the South African Revenue Service or at similar government departments as may be
required
4. GOALS AND OBJECTIVES OF THE ASSOCIATION
The objectives of the Association are to:
4.1 serve as a Masters Association for the Development;
4.2 perform such functions and exercise powers as set forth herein;
4.3 control, administer and manage the Land, erf/units, Common Property, Facilities and
Services, including but not limited to the provisions of the Housing Development
Schemes for Retired Persons Act. 65 of 1988;
4.4 to administer and manage the provision of Facilities and Services to the Development
for the benefit of all Members;
4.5 oversee the maintenance of the external areas of Erven/Units and the common
property;
4.6 keep all equipment, machinery, fixtures and fittings used on or for the benefit of the
common property in proper working and proper condition;
9 Constitution of the Bardolino Lifestyle Resort
4.7 maintain all pipes, wires, cables and drains that appear on the Ground and are utilized
for the benefit of any Erven/Unit or Common Property, including adhering to repairs and
replacement where necessary;
4.8 set out rules governing the behavior of everybody living in the Development, visiting or
using it to ensure that compliance to the Code of Conduct is adhered to;
4.9 to manage the administration, including the financial administration of the Association,
and to exercise and execute all the powers, functions and duties assigned to the
Association;
4.10 establish appropriate guidelines for the development;
4.11 manage all buildings, structures, developments or additions to the Development to
ensure harmonic development, thereby promoting a high standard;
4.12 ensure that all provisions, zoning and scheme regulations in respect of the
Development are complied with;
4.13 control the transfer, occupation, use and enjoyment of the Erven, erf/units and Common
Property in Development;
4.14 promotes and protect the common and group interests of Members in general relating
to development;
4.15 generally to do whatever is required or necessary to fulfill the objectives of the
Association including all additional, incidental and unforeseen tasks to promote the
objectives of the Association and the Association will have the powers which may be
necessary to carry out the objectives
5. MEMBERSHIP OF THE ASSOCIATION
5.1 The members of the Association shall consist of the Developer and each registered
owner of an Erven/Unit.
5.2 Membership to the Association will automatically take place and is compulsory for each
registered owner of an Erven/Unit. Such membership commences at the date of
registration of the transfer of the Erven/Unit in the name of the Transferee.
10 Constitution of the Bardolino Lifestyle Resort
5.3 If an Erven/Unit is registered in the name of more than one Owner, such Owners shall
jointly be liable for such obligations as members of the Association and shall exercise
their rights, including voting rights, jointly.
5.4 When a person is registered as the owner of more than one Erven/Unit, such person
shall be deemed to be a Member and shall have the rights and obligations of a Member
in respect of each Erven/Unit held in such person's name is registered.
5.5 When a Member ceases to be the registered owner of an Erven/Unit, such person will
automatically cease to be a member of the Association.
5.6 The registered owner of an Erven/Unit cannot resign as a Member, but remains a
Member while being the registered owner of the Erven/Unit.
5.7 A person other than the Developer will automatically become a member for registration
of transfer of a Erven/Unit in the Development in his or her name and will automatically
cease to be a member upon registration of his / her transfer Erven/Unit (or last
Erven/Unit, if applicable) to another.
5.8 No member may cede or resign from his membership as a member.
6. COMPETENCIES AND DUTIES OF THE ASSOCIATION
6.1 The Association shall exercise its obligations and powers and its duties and functions
as set out in this Constitution, the Conduct Rules and the Guidelines and such related
functions as may reasonably be necessary in pursuit of its objectives.
6.2 The Association shall have the power to:
6.2.1 purchase, rent or otherwise obtain movable property in order to operate the
Development;
6.2.2 appoint employees at its discretion;
6.2.3 enter into an agreement with any Member, Nominee Occupier or Tenant for
the provision of facilities or services to an Erven/Unit or to a Member or
Nominee Resident;
6.2.4 appoint a committee for the Association;
11 Constitution of the Bardolino Lifestyle Resort
6.2.5 prevent the transfer or alienation of any Erven/Unit unless any levy or other
contribution due to the Association has been paid in respect of a Erven/Unit or
provision for payment thereof has been made to the satisfaction of the
Association;
6.2.6 Establish a levy fund for the Association;
6.2.7 require the Members, where necessary, to pay the Levies to pay any claims
against the Association;
6.2.8 increase levies as determined from time to time, to be collected to strengthen
the Levy Fund;
6.2.9 collect the specified levies;
6.2.10 open and operate a current account and a savings account at a financial
institution; and
6.2.11 to deposit any fees of the Levy Fund in a savings account, fixed deposit,
money market or similar account with a financial institution as defined in
Section 1 of the Financial Services Board Act No. 97 of 1990
6.2.12 Pay over 90% (Ninety Percent) of all Alienation Levies received within seven
days to the Healthcare Operator.
6.3 It is the duty of the Association subject to the restrictions or guidelines given at a
general meeting of members to:
6.3.1 enforce the Rules of Conduct;
6.3.2 keep a register of members in the manner prescribed by the Association;
6.3.3 maintain the Common Property, as well as external areas of all Erven/Units;
6.3.4 insure the buildings on the common property to the extent of the replacement
value thereof in respect of fire; and against such other risks as the Committee
or the Members may determine;
6.3.5 ensure that all laws relating to the Common Property or any improvements to
the land are maintained; and
6.3.6 to manage and administer the Common Property for the benefit of all
Members.
12 Constitution of the Bardolino Lifestyle Resort
7. THE COMMITTEE
7.1 The Association's affairs will be governed and managed by the Committee consisting of
a minimum of 3 (three) and not more than 7 (seven) Committee members.
7.2 Until the first committee has been appointed at the first general meeting of the
Association, the Developer or his nominee will be entitled, in terms of the Constitution,
to perform all functions and duties of the Committee.
7.3 The Committee will be elected at the first general meeting of the Association and
annually at the general meeting and will continue to hold such office until the next
Annual General Meeting of the Association.
7.4 A committee member will be a natural person.
7.5 The Developer will appoint 2 (two) Committee members for as long as he is a member
of the Association. The remaining committee members will be appointed by the
Members. The developer can waive this right.
8. CHAIRMAN AND DEPUTY CHAIRMAN
8.1 The committee shall appoint a Chairperson and Deputy Chairperson from the elected
committee members.
8.2 The Committee shall meet within 14 (fourteen) days after each annual general meeting
and elect from amongst themselves a Chairperson and Deputy Chairperson who retain
their respective positions after their appointment, until the next annual general meeting,
provided that their appointments as chairperson or vice-chairperson will become ipso
facto vacant if such committee member ceases to be a committee member for any
reason whatsoever. No committee member will be appointed at any time in more than
one of the mentioned positions. In the event that a position becoming vacant, the
Committee must meet as soon as possible to appoint among themselves a replacement
to such a position on the committee.
8.3 Except as provided for in this Constitution, the Chairperson shall chair the Committee
meetings and all general meetings and shall perform all duties attached to the office of
Chairman and such other duties as may be prescribed by the Committee or its
13 Constitution of the Bardolino Lifestyle Resort
Members and may appoint guests at such meetings, refuse or allow an opportunity to
address the committee, provided that such guest may not vote at the meeting.
8.4 The Deputy Chairperson shall resume the powers and duties in the absence of the
Chairperson as Chairman and will also resume such other duties as may be assigned
to him by the Chairperson or the Committee from time to time
9. REMOVAL AND ROTATION OF COMMITTEE
9.1 Subject to the provisions of clause 9, each member of the Committee will, after his
appointment, retain his office until the next annual general meeting during which each
member of the Committee shall be deemed to be retired from office, although he will be
eligible, to be re-elected to the Committee at such meeting.
9.2 A committee member's office will be considered vacant when:
9.2.1 his estate is sequestrated, either provisionally or permanently or when he
disposes of his estate;
9.2.2 he makes arrangements or compromises with his creditors;
9.2.3 he is found guilty of any contravention or offence where dishonesty plays a
role;
9.2.4 his mental capacity is weakened or found to be insane;
9.2.5 resigns from office and handed his written resignation to the chairperson;
9.2.6 he dies;
9.2.7 he is removed from office by means of an Ordinary Resolution by the
Members;
9.2.8 he, in terms of the Constitution, is deprived of the right to exercise his right to
vote; or
9.2.9 being absent for 3 (three) consecutive committee meetings without being
granted leave for absence.
9.3 Notwithstanding the fact that a Committee member will be deemed to have vacated his
office, anything he has done in good faith in his capacity as Committee Member shall
remain valid until his resignation has been noted in the Minutes of the Association.
14 Constitution of the Bardolino Lifestyle Resort
9.4 Should the office of a Committee member become vacant before the next annual
general meeting of the Association, the particular vacant position may be filled by the
Committee and such appointed person will hold office until the next annual general
meeting.
9.5 The Committee may fill any vacant position from within or may co-opt an additional
member, provided that the committee may not consist of more than 7 (seven) members.
10. FUNCTIONS, DUTIES AND POWERS OF THE COMMITTEE
10.1 The functions, duties and powers of the Association are contained in this
Constitution, the Guidelines and the Rules of Conduct and any limitation or mandate
by Members at a general meeting will be carried out or exercised by the Committee
in terms of the Constitution. .
10.2 The powers of the Committee are subject to any restriction or mandate imposed by
the Members at a general meeting of the Association and include the following:
10.2.1 To appoint such agents and employees at its discretion in respect of the
management and administration of the Common Property and the
performance of any or all of the functions, duties and powers of the
Association.
10.2.2 To obtain the services of accountants, auditors, advocates, architects,
lawyers, engineers and any other professional person or company and/or
another employee for such reasons as required by the Committee and on
the conditions that the Committee will determine.
10.2.3 To delegate any of their powers and duties as may be necessary to
delegate to one or more Committee members or to revoke such
authorization at any time.
10.2.4 To establish a subcommittee for the performance of designated tasks.
10.2.5 To enter into agreements in order to achieve the objectives of the
Association.
10.2.6 To purchase or otherwise acquire or transfer any property, to lease, rent or
to mortgage any property if it is authorized by the Members of the
Association by means of a General Resolution.
15 Constitution of the Bardolino Lifestyle Resort
10.2.7 To purchase, rent or otherwise obtain movable property in order to mandate
the Development.
10.2.8 To borrow money required for the performance of its functions or the
exercise of its powers and to repay the loan and to secure the payment of
interest thereon by means of a negotiable instrument or pledge and/or
session of unpaid taxes, or the pledge of any property held.
10.2.9 To determine and collect levies (ordinary levies), Special levies, Alienation
levies in accordance with this Constitution.
10.3 The Committee may not apply for any loans on behalf of the Association.
10.4 The Committee will take all reasonable steps to adhere to the Constitution, the
Guidelines and the Code of Conduct as well as to the management and
administration of the Common Property.
10.5 The Committee may from time to time issue guidelines to strengthen the provisions
of this Constitution, the Guidelines and the Rules of Conduct, provided that such
guidelines may only relate to the practical implementation of a provision of the
Constitution or the Code of Conduct or the Guidelines and may not include a new
provisions.
10.6 The Committee has the right, from time to time, to change, cancel or change any of
the Committee’s decisions or resolutions.
10.7 The Committee may, if it so decides, reasonably investigate any suspicious or
alleged violation of the Constitution, Rules of Conduct, or Guidelines by any
Member, Nominee Resident, Tenant or Resident of the Health Care Center.
10.8 No agreement or other document signed on behalf of the Association shall be valid
or binding unless it has been signed by 2 (two) Committee members, of which one
must be a member appointed by the Developer.
10.9 The Committee may institute legal action on behalf of the Association in any court or
to any Ombudsman with competent jurisdiction in order to pay any fees due by a
Member to the Association arising from any action or for any other legal aid and may
defend legal actions on behalf of the Association and may also appoint a legal
representative to act on behalf of the Association.
16 Constitution of the Bardolino Lifestyle Resort
10.10 A committee member shall lose its voting rights in respect of any agreement or
proposed agreement or any litigation or proposed litigation against the Association or
any dispute with the Association as a result of any interest that such a member may
have in such a matter.
10.11 The members of the Committee shall be entitled to be repaid for all reasonable and
bona fide expenses incurred by them in or on the performance of their duties as
members of the Committee and/or as chairman and/or vice-chairman, whichever is
the case, but those named shall not be entitled to any other remuneration, fees or
salaries in respect of the performance of such duties unless authorized by means of
a Special Resolution by the Members.
11. PROCEEDINGS OF THE COMMITTEE
11.1 The Committee may meet to perform, adjourn and otherwise regulate their meetings
as they deem fit, subject to any provisions of the Constitution.
11.2 Committee meetings shall take place at least once a month.
11.3 The Chairman may convene meetings at any reasonable time.
11.4 A committee member may at any time convene a committee meeting, provided that
he has the written support of 2 (two) other committee members and gives written
notice of not less than 7 (seven) days of the proposed meeting, and specify the
reason for the meeting, provided that in case of an emergency shorter notice may be
given depending on the circumstances.
11.5 At a committee meeting, 50% (fifty percent) of the Committee members will form a
quorum.
12. GENERAL MEETINGS OF THE ASSOCIATION
12.1 General, Notice
12.1.1 A general meeting or special general meeting of the Association will be
convened with at least 14 (fourteen) days written notice to the Members.
The notice will specify the venue, hour and agenda of the meeting.
17 Constitution of the Bardolino Lifestyle Resort
12.1.2 A general meeting, will, although convened on a shorter notice as
contemplated in clause 12.1.1, shall be regarded as properly convened, if
not less than 50% (fifty percent) of the members who are entitled to attend
such a meeting and who are entitled to vote at such a meeting, agree to
such a meeting, except in the event of a general meeting that was
specifically convened for purposes to attend to a special resolution.
12.1.3 The notice of the annual general meeting will be accompanied by or
following the Chairman's report, the Budget, the audited financial
statements and such other additional documents deemed necessary by the
Committee, which documents will be supplied to and made available to
members at least 14 (fourteen) days prior to the date of the annual general
meeting.
12.1.4 A general meeting for the purpose of taking a special resolution may be
held with 30 (thirty) days written notice to all members of the Association.
Nevertheless, shorter notice may be given if, in the opinion of the
Committee such shorter notice is necessary due to the urgency of a matter
or due to the specific nature of the matter
12.1.5 The notice of the special general meeting will be delivered to the Members
in accordance with clause 29 of the Constitution.
12.2 Agenda
The following matters must be dealt with at an annual general meeting-
12.2.1 Consideration of the financial statements and annual report.
12.2.2 Acceptance of the Budget, with or without amendments.
12.2.3 Acceptance of the Insurance Schedules of Replacement Values, with or
without amendments.
12.2.4 Appointment of the Association's Auditor for the following year.
12.2.5 Appointment of the Attorney for the following year.
12.2.6 Determination of the number of Committee members for the following year.
12.2.7 Election of Committee members for the following year.
18 Constitution of the Bardolino Lifestyle Resort
12.2.8 Attending to any special matters of which notice has been given.
12.2.9 Confirmation by the Auditor of any amendment, substitution, addition or
revocation to the Constitution and/or Rules.
12.3 Quorum
(a) No business may be performed at any general meeting unless a quorum of
Members is present at the time of commencement of proceedings.
(b) For the purpose of a Special or Ordinary Resolution, a quorum at a general
meeting shall be at least 30% (thirty percent) in number of the Members,
present in person or represented by proxy.
(c) For the purposes of a Special Resolution, a quorum at a general meeting shall
be at least 80% (eight percent) in number of the Members, present in person
or represented by proxy.
(d) If no quorum is present after 30 (thirty) minutes from the scheduled time for a
general meeting, the meeting shall be postponed to the same day in the
following week at the same time and, if, after 30 (thirty) minutes of that
scheduled time, no quorum should be present, the Members will be regarded
as a
quorum for the purposes of deciding on any Ordinary or Special Resolution.
12.4 Chairman
12.4.1 The chairman of the Committee shall act as chairman at each general
meeting unless the members decide otherwise at such meeting.
12.4.2 If there is no chairman, or if the chairman is not present after 15 (fifteen)
minutes of the scheduled time, or if he or she is unwilling or unable to act,
the Members present, must elect a Chairman from the Members present at
the meeting.
12.5 Voting Procedures
12.5.1 Any Ordinary Resolution that will be put to a vote at a general meeting shall
be decided by a simple majority of Members present or represented by
raised hands.
19 Constitution of the Bardolino Lifestyle Resort
12.5.2 Each Member has one vote in respect of any Ordinary Resolution, including
election of Committee, provided that-
12.5.2.1 in the case of Co-Owners of a Erven/Unit, such Owners shall
jointly hold one vote exercised by one person under a joint
power of attorney;
12.5.2.2 where one person is the owner of multiple erf/units, he or she
will hold one vote for each Erven/Unit in possession.
12.5.3 A special resolution shall be decided by voting by ballot.
12.5.4 To make a unanimous decision upon compliance with quorum
requirements, the motion must be accepted by all members present or
represented by proxy.
12.5.5 To decide on a special resolution after complying with quorum
requirements, the motion must be accepted by at least 75% (seventy five
percent) of the members present or represented by proxy.
12.5.6 a member shall not be entitled to vote at any general meeting if-
12.5.6.1 any levy due by him or her has not been paid; or
12.5.6.2 he or she persists to be in breach of any provision of the Code
of Conduct or provision of this Constitution or of the Act despite
given written notice by the Committee to comply with the
relevant provisions;
provided that a mortgagee will be entitled to vote in place of the Member, as
his or her proxy; and
provided further that in the event of such disqualification, the vote of the
member concerned will not be taken into account for purposes of a Special
or Unanimous Resolution
12.6 Proxies
12.6.1 At a general meeting, voting may be carried out personally, or by proxy or
by ballot or by hand.
20 Constitution of the Bardolino Lifestyle Resort
12.6.2 A proxy shall be written in writing by the Member, or his duly authorized
representative, and the proxy shall be handed to the chairman at least two
days before the commencement of the meeting.
12.6.3 A proxy does not have to be an Member, but may not be the Manager or
any of his or her employees, or an employee of the Association.
12.6.4 In respect of an Member who, absent from the Committee, absent from the
Committee and outside the Republic without the power of attorney, the
chairman shall automatically hold a power of attorney.
12.6.5 In respect of a deceased member, only a power of attorney issued by a duly
appointed executor will be acceptable, failing in which event the chairman
automatically holds a power of attorney.
12.7 Minutes
12.7.1 The Committee must ensure that minutes are taken at each general
meeting of the Association, although not necessarily verbatim, which
minutes are then transcribed in writing without unnecessary delay after the
meeting has adjourned. At the next general meeting of the Association,
Members will decide if the minutes of the previous general meeting are a
true reflection of matters dealt with on that meeting, after which the
chairman of the meeting will certify the minutes as correct.
12.7.2 The Committee will ensure that all minutes of committee meetings are kept
and maintained. The minutes of committee meetings will be made available
for inspection during office hours at the request of a committee member, a
member, the auditor, the management agent and the local authority
13. LEVY AND APPROVAL OF THE BUDGET
13.1 The committee will establish a Levy Fund for administrative expenses which, in their
opinion, will be sufficient for the repair, maintenance, control, management and
administration of the Development, the Erven/Unit , the Common Property and the
Facilities and Services as well as the relevant buildings (including a reasonable
provision for future maintenance and repair) and for the payment of tariffs and taxes
in respect of the Common Property, for the provision of electricity, water, sanitation
21 Constitution of the Bardolino Lifestyle Resort
and other services to the buildings and the Land and any insurance premiums, as
well as for the fulfillment of all the obligations of the Association.
13.2 The Committee will draw up a budget as soon as possible after the end of a financial
year, being an estimate of the expected income and expenses of the Association in
respect of the following year as well as an estimated deficit (if any) as a result of the
previous Financial Year and any amount held in reserve to cover future expected
expenses. The Committee will determine the amounts required for the Levy Fund
and collect those amounts to be paid by members in accordance with clause 14 to
the Association.
13.3 At each annual general meeting, Members will decide on accepting the Budget, with
or without amendments, by means of a General Resolution
14. LEVIES, SPECIAL LEVIES AND MEASUREMENT RATE
14.1 Within 14 (fourteen) days after the Budget has been approved, the Committee shall,
by resolution to this effect, allocate the Budget to Members as Levies (ordinary
levies). It is specifically determined that no levies owed to the Association are
payable in respect of the Health Care Center. The Developer will not be liable to pay
any levies in respect of any Erven/Unit registered in his name.
14.2 The levies as stipulated in clause 14.1 shall be in force (due and payable) from the
date the resolution has been accepted by the Committee and shall be paid in equal
monthly installments over a period of 12 (twelve) months, monthly in advance, or
paid on the first (1st) day of the following month of the financial year. The Committee
shall, within 14 (fourteen) days after such determination, notify each Member in
writing of the levies and installments payable by them to the Association and each
member shall make arrangements for payment to the Association.
14.3 The Committee may from time to time request Special Fees from Members in
respect of all expenses not included in the Budget. Special levies will be effective
(due and payable) from the day the Committee accepts a resolution and will be
payable in one sum or such installments and at such time or times as the Committee
may determine.
14.4 After the expiration of the Financial Year and until members can be held liable in
respect of levies for the following year, Members will continue to pay Levies at the
22 Constitution of the Bardolino Lifestyle Resort
same amounts and instalments as due and payable by them during the previous
Financial Year, provided that the Committee, by written notice to Members, at any
given time, if it deems it necessary, may increase the Levies due by the Members by
a maximum of 10% (ten percent) to cover the expected increased expenses to the
Association.
14.5 Every member shall be liable for payment of a meal levy in respect of every
nominated occupier of his Erven/Unit. This meal levy will consist of 15 (fifteen)
meals per month per Erven/Unit, and will be included in the amount determined for
the normal monthly levy. The meal levy will be paid on a monthly basis by the
Committee to the Health Care Operator.
14.6 The Committee may appoint a private person, a company or institution to provide
special services to the Association and the Committee may establish a compulsory
service charge for Members in respect of such services.
14.7 Where any Erven/Unit is owned by more than one person, all registered owners of
that Erven/Unit will be jointly and severally liable for the proper performance of any
obligation to the Association.
14.8 Any amount due by a Member in respect of a Levy or any other amount determined
in accordance with the provisions of this Constitution shall be due by him to the
Association.
14.9 During transfer of the Erven/Unit, the new Member (registered owner) shall be liable
to the Association for the Payment of Levies in respect of the Erven/Unit. A pro rata
breakdown must be made in respect of the month in which the transfer takes place.
No Member shall transfer its Erven/Unit until the Committee has certified that, on the
date of transfer, the Member has confirmed that all moneys due by him have been
paid to the Association or that, to the satisfaction of the Committee, he has made
such payment
14.10 Members will be held liable for interest on arrears and other outstanding amounts at
the rate determined by the Committee from time to time and calculated from the date
on which the amount is due and payable up to the actual due date and includes both
dates.
14.11 No Member whose fees or any portion thereof or any other moneys are outstanding
and due for more than 2 (two) months shall have voting rights, either personally or
by proxy, at any general meeting of the Association and may not propose a person,
23 Constitution of the Bardolino Lifestyle Resort
for the election to the committee or be a member of the committee of the
association.
15. ALIENATION LEVY
15.1 In the event of alienation or deceased alienation of a Erven/Unit, the Transferor or
the owner of the Erven/Unit shall pay an Alienation Levy of 8% (eight percent) of the
fair market value of the Erven/Unit at the time of alienation or deceased alienation or
Assumed Alienation , subject to the exemptions specified in Clause 15.2 and 15.3
below. The Developer and/or the Committee may request a re-evaluation of the fair
market value of the Erven/Unit if they are not satisfied with the value provided by the
owner, whereafter such a re-evaluation will take effect.
15.2 In the event that an Erven/Unit is transferred from the estate of the Transferor or
from a joint estate of the Transferor and his or her surviving Spouse to his or her
surviving Spouse, such alienation shall be exempted from payment of the Alienation
Levy. This clause applies mutatis mutandis in the case of a Assumed Alienation.
15.3 No Alienation Levy will be payable in respect of the Alienation of a Developer's
Erven/Unit to the first buyer or its Transferee.
16. OBLIGATIONS OF MEMBERS, NOMINATED BUILDERS AND RENTERS
16.1 The provisions of this Constitution, the Guidelines and the Code of Conduct and the
duties of a Member in relation to the use, occupation and enjoyment of his
Erven/Unit, as well as the use and enjoyment of the Common Property shall be
binding on all members who will see to the compliance to the provisions of the
Constitution, the Guidelines and the Conduct Rules by all nominated Residents and
Tenants of its erf/unit, including family members, guests, visitors, workers and
contractors of the Member, or Tenant of the erf/unit. In case of violation of the
Constitution, the Guidelines or the Rules of Conduct by a Nominee Resident or
Tenant or Family Members, Guests, Visitors, Workers and Contractors of the
Member, or Nominated Occupier or Tenant, such violation shall be deemed to be
committed by the Member himself. The Committee shall have the right, without
prejudice to the foregoing and at its own discretion, to take action against or against
the actual person who committed the violation as well as action against the Member.
24 Constitution of the Bardolino Lifestyle Resort
16.2 No Member, Nominee Member or Tenant shall conduct any business, including that
of a guesthouse or any other accommodation, on its Erven/Unit unless approved by
the Committee and authorized the Local Authority if authorized by such Local
Authority, if applicable.
16.3 A member will:
16.3.1 be responsible for the payment of municipal tariffs and taxes and all
services and other charges due to the Local Authority in respect of his
Erven/Unit;
16.3.2 not construct or place a structure on the Erven/Unit or make improvements
to the building on its Erven/Unit without the written consent of the
Committee, which will not be unreasonably withheld.
16.4 A Member, Nominee Member or Tenant shall:
16.4.1 utilise and enjoy the Common Property in such a way that it does not
unreasonably interfere with the use and enjoyment thereof by other
Members, Nominated Members or Tenants;
16.4.2 does not use or use its Erven/Unit in such a manner and for such purpose
as to be a nuisance to any Owner or Nominee Resident;
16.5 A member will, in respect of his Erven/Unit, take care of the garden and keep it in a
standard acceptable to the Committee. Should a Member fail to maintain the garden
and if the failure persists for a period of 30 (thirty) days after receiving a written
notice from the Committee, the Committee shall be entitled to do the necessary to
maintain the garden and to recover the cost of doing so from such Member. The
expenses incurred by the Committee shall be regarded as part of the Levies owed
by the Member and the Committee may charge it as a levy payable by the Member.
16.6 A member shall be liable for the payment of all legal costs, including the costs
between an attorney and client, the collection commission and other expenses
incurred by the Association during the recovery of the levies or any arrears and fees
due by such member to the Association and Compensation as incurred costs to
enforce compliance with any of the provisions of the Constitution, the Guidelines or
the Rules of Conduct.
25 Constitution of the Bardolino Lifestyle Resort 17. SALE, ALIENATION AND TRANSFER OF PROPERTY IN THE DEVELOPMENT
17.1 No Erven/Unit may be alienated or transferred unless the Committee has given their
consent for such alienation and transfer.
17.2 The Committee may withhold its written consent for alienation and transfer if:
17.2.1 any Levies or Fees due in respect of such Erven/Unit remain unpaid, and/or
17.2.2 any buildings, structures, cultivation or additions exists in respect of the
Erven/Unit and not duly authorized in terms of this Constitution, the
Guidelines or the Rules of Conduct and/or
17.2.3 the owner, nominee resident or tenant of the Erven/Unit substantially
violates the provisions of this Constitution, Guidelines or the Code of
Conduct and, to such an extent, justifies the retention of such certificate,
and/or
17.2.4 The format and content of the Sale Agreement do not materially comply with
the format and content as prescribed by the Committee, and/or
17.2.5 the Transferee has not specified the Nominee Resident in terms of clause
17.3 below, and/or
17.2.6 the Committee has not approved the nominee resident (s) of the Erven/Unit,
as determined by the Transporter, which approval may not be unreasonably
withheld.
17.3 Before approval is granted in terms of the abovementioned clause 17.1, the
Committee shall be entitled to:
17.3.1 be satisfied with the suitability of the proposed Transferee or Nominee
Resident with regard to needs and adaptability; and
17.3.2 requesting a medical certificate from a qualified medical doctor indicating
that the proposed Transferee or Nominee Resident (s) is declared medically
fit and self-sufficient to live independently.
17.4 All sales agreements will be executed in terms of a Standard Sale Agreement as
prepared and prescribed by the Committee from time to time and the Committee will
not grant permission in terms of Clause 17.1 unless laid out in such format. The
Transferor will ensure that the prospective buyer disclose all information and details
26 Constitution of the Bardolino Lifestyle Resort
as required by the Committee, including the details of the Nominee Resident (s) of
the Erven/Unit in the Purchase Agreement.
18. NOMINATED OCCUPANTS AND OCCUPATION OF erf/unitS
18.1 The number of persons who may occupy an Erven/Unit shall be limited to 2 (two)
persons per erf/unit, unless otherwise authorized by the Committee in writing.
18.2 The Erven/Unit may only be occupied by the Nominated Occupier(s) who have been
nominated by the Member or Transferee of the Erven/Unit in writing and approved
by the Committee in writing and shall not let the Erven/Unit without the permission of
the Committee or otherwise allow to be occupied by any other person, provided that:
18.2.1 if the Nominee Resident(s), either by subletting or on another basis, wishes
to terminate his occupation during such Nominated Occupier(s)'s absence
or vacation or otherwise, it shall not constitute a breach of this clause ,
provided that the Committee has given written permission, which consent
may not be unreasonably withheld;
18.2.2 A nominee resident may temporarily accommodate his family, guests or
visitors in his Ervenf/Unit for a period not exceeding 60 (sixty) days in any
calendar year, and to hold such persons longer, the Nominated Occupier(s)
must obtain written consent of the Committee and comply with the terms
and conditions imposed upon it by the Committee
18.3 To obtain the approval of the Committee, in terms of clause 18.2, the Member or
Transferee must provide the Committee with the following:
18.3.1 a written nomination of the Nominated Occupier (s) in respect of his
Erven/Unit;
18.3.2 the payment of the Alienation Levy in respect of the Assumed Alienation.
18.4 No member or nominee resident shall lease his Erven/Unit or grant a right to occupy
it to any person without the written permission of the committee and such committee
may add reasonable conditions to the consent
19. GUIDELINES
27 Constitution of the Bardolino Lifestyle Resort
19.1 The Developer has established guidelines for managing all aspects of the design
and appearance of the buildings and structures set up in development.
19.2 The Committee shall be entitled to:
19.2.1 compile, implement and enforce conditions to ensure that the architectural
style and design criteria of the materials and colours compliment all
buildings, structures and alterations;
19.2.2 to do all that is necessary to achieve the objects implied or expressed in this
regard, which include actions, inter alia, the study and approval of the
relevant building plans necessary for construction and/or developments
within the Development;
19.2.3 to designate an architect and/or such advisers as necessary to carefully
study the relevant plans referred to herein;
19.2.4 charge an investigation fee and other costs, as may be deemed necessary
by the Members, for services rendered and costs incurred;
19.2.5 to ask a deposit of members.
19.3 All buildings and structures set up in the Development or any changes or additions to
existing buildings or structures must comply with the provisions of the Guidelines
20. CHANGE TO EXISTING STRUCTURES
20.1 The approval of the Committee, as contemplated in clause 20.1, will only be given
after:
20.1.1 An application has been submitted to the Committee;
20.1.2 detailed plans for the proposed work by the Architect appointed by the
Committee, must be submitted;
20.1.3 the Committee and, if applicable, the Architect is satisfied that the proposed
work is in accordance with the Guidelines and for which the Committee or
its nominee will be the only arbitrator and their decision will be final and
binding on the Member;
28 Constitution of the Bardolino Lifestyle Resort
20.1.4 the Member has paid the investigation fee and such other costs as may be
incurred by the Committee;
20.1.5 the Member has paid a construction deposit in the amount determined by
the Committee from time to time;
20.1.6 The Local Authority has approved the building plans, where applicable.
20.2 Each Member shall submit to the Committee, when submitting the application for
approval, in terms of clause 20.1.1, a deposit, which amount is determined by the
Committee from time to time, and such amount shall be retained by the Committee
until the completion of such work by the Member. Upon completion of the work, the
Committee will reimburse the deposit to the Member exclusively of any interest
thereon that will accrue in favour of the Association provided that it is satisfied that
no damage has been done by the Member or any of its Contractors to the Common
Property and that the work is in accordance with the properly approved building
plans. In the event that the Common Property is damaged by such work, the
Member shall, after receiving a written request from the Committee, restore the
damage to the satisfaction of the Committee within 15 (fifteen) days and, in the
absence thereof, the Committee shall be entitled to appoint an independent
contractor to repair the damage and the deposit amount paid to the Committee will
be utilized to cover the expenses of the independent contractor. However, if the
deposit is not sufficient to cover such repair costs, the Committee will be entitled to
recover the deficit of the Member
21. CODE OF CONDUCT
The Developer has drafted the Code of Conduct that governs the use, occupation and
enjoyment of the Erven/Unit and the Common Property, the appearance of the Erven/Unit
and Erven, the conduct of Members, Nominated Residents and Tenants, and their relatives,
guests, visitors, workers and contractors and generally promote the purposes of the
Association, to which all Members, nominees, tenants and their family members, members,
guests, visitors, workers contractors and residents of the Health Care Center must comply.
22. COMMON PROPERTY
22.1 The Committee may make or remove improvements to the Common Property if the
29 Constitution of the Bardolino Lifestyle Resort
Members so decide by a General Resolution.
22.2 The Committee will properly maintain the Common Property.
22.3 Members, Nominees and Tenants shall enjoy access and reasonable use of the
Common Property, subject to reasonable terms and conditions determined by the
Committee from time to time.
22.4 Any person present on the Common Property or who uses any of the Facilities and
Services, do so entirely at their own risk. No person shall have any claim whatsoever
arising from such use or for anything that may happen during the course of time,
whether caused by human or animal, natural phenomenon or otherwise against the
Association. The Association shall not be liable for any injury, loss, physical damage
or damage to its property, directly or indirectly, in or around the Common Property or
Facilities or Services or for any action or negligence on the part of the Association or
any of the Association's employees, agents or contractors.
22.5 The Association will take ownership of the parts of the Common Property that can be
registered.
23. THE FACILITIES AND SERVICES
23.1 Members and Nominees will enjoy access to and use of the Facilities and Services
subject to reasonable conditions determined by the Committee from time to time.
23.2 A Health Care Centre will be provided to the Development as a separate facility and
at additional costs. The Health Care Centre will be privately owned and will be
managed by the Health Care Operator. The Healthcare Operator will have the right
to lay down commercially competitive rates for the services provided and facilities
offered by the Health Care Centre, subject to the condition that Nominated
Resident(s), will be granted a fifteen (15) percent reduction, on the tariffs as laid
down by the Healthcare Operator.
23.3 The Health Care Center may be used by members of the public, but Members and
Nominees will, subject to availability, enjoy preferential access rights
23.4 The Health Care Centre will provide meal facilities, other than those referred to in
clause 14.5, and which can be utilized by members , Nominated Residents or the
general public.
30 Constitution of the Bardolino Lifestyle Resort
23.5 Occupiers of the Health Care Centre will have access to the common property of the
Development, subject to conditions imposed by the Committee, and the content of
the agreement between the Committee and the Operator/owner of the Health Care
Centre.
24. APPOINTMENT AND DUTIES OF THE AUDITOR
24.1 The Association will, at each annual general meeting, appoint an auditor, qualified in
terms of the Auditors Act, No. 26 of 2005, to act as auditor from the closing of the
meeting until the closing of the next annual general meeting.
24.2 The financial statements of the Association shall be audited by the Auditor and the
correctness thereof shall be determined and signed by the Auditor at least once
during a financial year. The duties of the auditor will otherwise be regulated in
accordance with general practice and applicable standards
25. FINANCIAL STATEMENTS, ACCOUNTS AND RECORDS
25.1 The Committee will ensure that proper accounting is done and records are kept in
order to clarify transactions and the financial position of the Association, including:
25.1.1 to record all the assets and liabilities of the Association;
25.1.2 to keep proper records of all moneys received by the Association and the
matters in respect of which such receipts and expenses have taken place;
25.1.3 Keep a register of Members indicating each member’s full address and
contact details;
25.1.4 Keep an individual ledger account in respect of each member.
26. INDEMNITY
26.1 All members of the Committee, agents or other employees of the Association shall
be indemnified by the Association against any costs, losses, expenses and claims
that may be incurred or held liable for any action in the performance of their duties
31 Constitution of the Bardolino Lifestyle Resort
unless such costs, losses or expenses or claims were caused by a mala fide or
serious negligent act or omission on te part of such a person.
26.2 The Committee will pay such indemnity from the Association's funds.
27. PRIVILEGE IN RESPECT OF DEFAMATION
Every member of the Association and every member of the Committee who shall be deemed
to be a member of the Committee or, if so, in his position as Committee Member, waive any
claim and right from any other Member, the Committee, the Chairman, the deputy
chairperson, any other committee member and any other person involved in performing a
function or duty on behalf of or for the benefit of the Association, the Committee or any
subcommittee which such member or committee may otherwise have had regarding to any
statement, report, complaint or notice regarding the member or committee member made at
any committee meeting or general meeting or otherwise in the performance of any right,
function, duty, competence or trust within the scope of the Constitution, being a statement
report, complaint, notice or reference liable to such member or committee member or
otherwise harmful to his dignity, reputation, business or financial interests of such member or
committee member, whether true or false.
28. DOMICILIUM OF THE ASSOCIATION AND MEMBERS
28.1 The Committee will from time to time determine the address of the Association for
purposes of the Association’s domicilium citandi et executandi subject to the
following:
28.1.1 such address shall be the address of the Chairperson or a Committee
Member nominated by the Committee or the address of a duly appointed
Management Agent or the address of the Association of the Association, if
any;
28.1.2 The Committee will provide any change of address by notice to all
members.
28.2 The domicilium citandi et executandi of each Member, Nominee Member or Tenant,
in which all documents and notices are delivered in terms of the Constitution, the
Guidelines and the Code of Conduct, will be the street address of the Erven/Unit.
32 Constitution of the Bardolino Lifestyle Resort
28.3 A member may, by written notice to the Committee, change its domicile, provided
that the new address is not a PO Box or posts, and provided that the address is in
the Republic of South Africa and shall not be valid until 14 (fourteen) days after the
Committee receives such a notice.
29. NOTICES
29.1 A notice in terms of the Constitution, Guidelines and Behavior Rules will be in writing
and must be delivered by hand or by post in a prepaid, properly addressed letter by
the Association to a Member or Nominee Member at its domicilium citandi et
executandi.
29.2 It shall be permissible to send any notice to a Member, Nominee Member or Tenant
by sending a fax number or e-mail address of the Member, Nominated Member or
Tenant if the fax number or e-mail address of the Member, Nominated Member or
Tenant has been registered with the Committee.
29.3 Any notice to a member or nominee resident:
29.3.1 sent to him to his domicilium citandi et executandi by means of a prepaid
item which has been correctly addressed, shall be deemed to have been
received by the 5th (fifth) day after it has been shipped; or
29.3.2 delivered by hand to a Member, Nominated Member or Tenant shall be
deemed to have been received on the day of delivery; or
29.3.3 successfully shipped to a Member, Nominee Member or Tenant to his fax
number, will be deemed to be received on the 1st (first) day of dispatch; or
29.3.4 sent by electronic mail to a Member, Nominee Member or Tenant to his e-
mail address will be deemed to be received on the 1st (first) day of dispatch
thereof.
29.4 Notwithstanding anything contradictory herein contained, a written notice or
communication actually received by a Member, Nominee Member or Tenant shall be
a sufficient written notice or communication to such a Member, Nominee Member or
Tenant, notwithstanding the fact that it has not been shipped or delivered in the
above manner.
33 Constitution of the Bardolino Lifestyle Resort
29.5 In all cases where a notice or document has been delivered to the Nominated
Occupier, the notice, in terms of the Constitution, Guidelines and Behavior Rules,
will also be delivered to the Owner of the relevant Erven/Unit
30. BREACH
30.1 In accordance with the provisions of this clause, the Committee may take legal
action on behalf of and in the name of the Association.
30.2 If any Member violates this Constitution by failing to pay in due time (by the due
date) Fees or any other payments due in terms of the Constitution, Guidelines and
Behavior Rules, the Committee may take legal action on behalf of the Association
against such Member to collect the arrears of to collect other outstanding fees due to
the Association.
30.3 If any Member breaches any stipulation of the Constitution, Guidelines and Conduct
Rules and fails to rectify such a breach within a period of 7 (seven) days after receipt
of a written notice to such effect and to fail to rectify such a violation within a
reasonable time, the Committee shall be entitled to take action on behalf of the
Association without prejudice to any rights or remedies which the Committee or
Association or any Member has in law, including the right to claim damages:
30.3.1 to enter the Erven/Unit and to take such actions as are reasonably
necessary to rectify the violation, in which event the Member concerned
shall be held liable to the Association in respect of all costs incurred, which
amounts are due on demand and be payable; and/or
30.3.2 to refer the matter to a general meeting to enable Members to give
directions to the Committee and to give the Member the opportunity to
submit his case; and/or
30.3.3 to institute legal proceedings against such member on behalf of the
Association to fulfill its obligations in terms of the Constitution, Guidelines
and Behavior Rules; and/or
30.3.4 to institute an arbitration case in terms of clause 32 of this Constitution.
34 Constitution of the Bardolino Lifestyle Resort
30.4 Should the Committee, in terms of clause 30.2, take legal action against a Member,
the Committee shall be entitled to claim of such member all costs, including legal
costs between client and attorney, collection commission, advocate's fee and all
other costs and expenses, administrative or otherwise.
30.5 If any Member fails to pay levies or any amount due by the Member in terms of the
Constitution, Guidelines and Conduct Rules on the due date, such member shall be
liable for the interest thereon as determined by the Committee from time to time and
calculate from the day the amount owed is due to the actual payment date (both
days inclusive).
30.6 If any Member violates the Constitution, Guidelines and Conduct Rules, the
Committee shall, without prejudice to any rights of the Committee or the Association
under this Constitution, be entitled to impose fines on such member.
31. PENALTY CLAUSE
31.1 If, in the opinion of the Committee, the conduct of a Member, Nominee Occupier or
Tenant or family members, visitors, guests, employees or contractors of such
Member, Nominee Occupier or Tenant is regarded as a nuisance or as a breach of
the Constitution, Guidelines and Behavior Rules, the Committee may:
31.1.1 Informally, in person, by telephone, e-mail, fax or by ordinary mail, notify the
Member, Nominee Resident or Tenant of the nuisance or offense and his /
her request for a clear solution to the matter to offer, or
31.1.2 by written notice, inform the Member, Nominee Resident or Tenant (if
applicable) of the nuisance or offense and the Member, Nominee Occupier
or Tenant (if applicable) warn that if he fails to rectify the offense and if he
continues with such conduct or violation, he will be fined.
31.2 If the Member, Nominee Occupier or Tenant (if applicable) continues to comply with
the specific conduct or offense, the Committee may by a written notice to the
Member, Nominee Occupier or Tenant schedule a hearing before the Committee.
31.3 The member, nominee resident or tenant (if applicable) will have the right at the trial
to:
31.3.1 be present and assisted or represented by another person;
35 Constitution of the Bardolino Lifestyle Resort
31.3.2 Provide evidence;
31.3.3 to be heard;
31.3.4 call witnesses;
31.3.5 cross examine any person called as witnesses in support of the complaint
and also having access to documents stemming from the evidence
31.4 At the end of the hearing, the Committee shall consult with regard to the evidence
and if the matter is appealed, the Committee may impose a fine for the first offense
and impose fines or penalties for each subsequent similar violation by the Member.
The failure of a Member, Nominee Resident or Tenant, (if applicable) to attend the
hearing will not invalidate the proceedings at all.
31.5 The fine (due and payable) imposed by the Committee shall be in effect on the date
of the hearing and must be paid within 14 (fourteen) days after the hearing and in
case of failure the fine imposed may be added to the Member`s Levy statement. The
fine will be owed by the Member to the Association and may also be recovered
through civil proceedings.
31.6 A member, nominee resident or tenant (if applicable) may lodge an appeal by means
of a written notice to the committee setting out the reasons for such an appeal. If an
appeal is requested after the imposition of the fine, the Member, Nominee Occupier
or Tenant (if applicable) will pay the Association the full amount of the fine, costs and
interest before lodging an appeal with the Committee. Upon receipt of the appeal,
the Committee may approve the fine, or a full or partial repayment of the fine, costs
incurred and interest rate.
31.7 The Committee may from time to time determine amounts for fines in respect of a
first or subsequent offense, subject to the guidelines provided or the restrictions
imposed by the Members at the Association’s general meeting.
32. ARBITRATION
32.1 If any dispute, question or difference arises between the Members or Members and
the Association or the Committee arising out of or relating to:
32.1.1 the interpretation of;
36 Constitution of the Bardolino Lifestyle Resort
32.1.2 the result of;
32.1.3 the respective rights or obligations in respect of;
32.1.4 a violation (except for non-payment of levies or any other amount due by a
Member) in terms of these Constitution, Guidelines and Conduct Rules) and
such dispute will be filed and resolved by arbitration with the written notice
of any party to the other interested party.
32.2 In respect of any claim arising from the default of payment levies or any amount due
in terms of the Constitution, Guidelines and Conduct Rules, by the Member to the
Association, the Association and the Committee will apply the common law and will
not proceed with arbitration and will not prevent them from continuing in any court
with competent jurisdiction to institute proceedings.
32.3 The arbitration referred to in clause 32.1 shall:
32.3.1 be kept in an informal, collective manner, provided that no formal formalities
and procedures relating to the exchange of pleadings or disclosure or the
strict rules of proof will be required.
32.3.2 commence as soon as reasonably possible after it has been requested for
settlement within 30 (thirty) days after it has been requested; and
32.3.3 be held in accordance with the provisions of the Arbitration Act. 42 of 1965
(as amended from time to time) except where the provisions of this
arbitration clause apply.
32.4 The arbitrator shall be an advocate or attorney practicing not less than 10 (ten) years
and appointed by an agreement between the parties to the dispute within 7 (seven)
days after the arbitration has been requested and in the absence of the appointment
within a 7 (seven) day period, the President of the Cape Attorney's Association will
appoint an arbitrator.
32.5 When making the award, the arbitrator will observe the principles contained in these
Constitution, Guidelines and Conduct Rules, and he will judge the matter as
submitted to him according to what he considers reasonable and fair under the
circumstances and therefore there is no need to adhere to the strict rules of the law
when he makes his decision
37 Constitution of the Bardolino Lifestyle Resort
32.6 The arbitrator shall give his decision in a written document within 10 (ten) days after
the completion of the arbitration hearing and he shall give reasons for his decision.
The arbitrator may determine that the costs of arbitration are paid by either party or
the other or both parties in the dispute in accordance with the amounts that he may
determine.
32.7 Each party in the arbitration agrees irrevocably that the decision of the arbitrator
during the proceedings:
32.7.1 final and binding on them;
32.7.2 will immediately be effective; and
32.7.3 A High Court Order may be made when any party or the Association makes
such application.
32.8 Despite any contradictions contained in clause 32.1 to 32.7 (inclusive), the
Committee shall have the right to take legal action on behalf of the Association by
way of an application, action or otherwise, in any court that has jurisdiction for a
prohibiting or commanding interdict or to issue any other urgent order which has an
interdict or correction of any violation or provision of this Constitution, the Guidelines
or the Code of Conduct or for any urgent order.
33. AMENDMENTS TO THIS CONSTITUTION, GUIDELINES AND/OR CODE OF CONDUCT
33.1 No additions, amendments or substitutes for revocation shall be made to the
provisions of this Constitution, except by means of a Unanimous Resolution adopted
at a general meeting of the Association. The notice of the meeting will outline the
proposed addition, amendment or replacement for repeal or provision of this
Constitution. The Constitution may not be supplemented, amended, replaced or
revoked without the Developer's written consent.
33.2 The provisions of the Guidelines and/or the Rules of Conduct may from time to time
be supplemented, amended, replaced or revoked by the Committee, subject to the
provisions or restrictions that may be determined by the Members by means of an
Ordinary Resolution. The Guidelines and/or Behavior Rules may not be
supplemented, amended, replaced or revoked without the Developer's written
permission.
38 Constitution of the Bardolino Lifestyle Resort
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