Constitution

In this Memorandum of Incorporation –

 

(a)          A reference to a section by number refers to the corresponding section of the Companies Act, 2008;

 

(b)          Words that are defined in the Companies Act, 2008 bear the same meaning in this Memorandum as in that Act; and

 

(c)          Any schedules, if any, attached to this Memorandum are part of the Memorandum of Incorporation.

 

 

1.      ARTICLE 1 – INCORPORATION AND NATURE OF COMPANY

 

 

1.1.   INCORPORATION

 

(1)       The Company is incorporated as a Non-Profit Company with members, as defined in the Companies Act, 2008.

 

(2)  The company is incorporated in accordance with, and governed by-

 

(a)  the alterable provisions of the Companies Act, 2008 that are applicable to Non Profit companies, subject to any limitation, extension, variation or substitution set out in this Memorandum; and

 

(b)  the provisions of this Memorandum of Incorporation.

 

 

1.2.   OBJECTS AND POWERS OF THE COMPANY

 

(1)       The Objects of the Company are as set out in the cover sheet, and except to the extent necessarily implied by the stated objects, the purposes and powers of the Company are not subject to any restriction, limitation or qualification, as contemplated in Section 19(1) (b) (ii).

 

(2)       The Company is not subject to any provision contemplated in section 15(2) (b) or (c).

 

(3)       Upon dissolution of the Company, its net assets must be distributed in the manner determined in accordance with-

(a)  Item 1(4)(b) of Schedule 1 of the Companies Act, 2008; and

(b)        The provisions, if any, set out in Part C of Schedule 1 of this Memorandum

 

 

 

1.3.   MEMORANDUM OF INCORPORATION AND COMPANY RULES

           

(1)       This Memorandum of Incorporation of the Company may be altered or amended only in the manner set out in Section 16, 17 or 152 (6) (b), subject to the provisions contemplated in Section 16 (2), and set out in Part D of Schedule 1.

 

(2)       The authority of the Company’s Board of Directors to make rules for the Company, as contemplated in Section 15(3) to (5) is not limited or restricted in any manner by this Memorandum of Incorporation.

 

(3)       The Board must publish any rules made in terms of Section 15(3) to (5) in accordance with the requirements set out in Part D of Schedule 1.

 

(4)       The Company must publish a notice of any alteration of the Memorandum of Incorporation or the Rules, made in terms of section 17 (1) in accordance with the requirements set out in Part D of Schedule 1.

 

 

1.4.   OPTIONAL PROVISIONS OF COMPANIES ACT, 2008 DO NOT APPLY

 

(1)       The Company does not elect, in terms of section 34 (2), to comply voluntarily with the provisions of Chapter 3 of the Companies Act, 2008.

 

 

1.5.   MEMBERS OF THE COMPANY

 

(1)       As contemplated in Item 4 (1) of Schedule 1 of the Act, the Company has members, who are in either of two classes, being voting and non-voting members, respectively.

 

(2)       The terms and conditions of membership in the company are as set out in Part E of Schedule 1 of this Memorandum.

 

 

 

2.      ARTICLE 2 – RIGHTS OF MEMBERS

 

2.1    MEMBERS’ AUTHORITY TO ACT

 

(1)       If, at any time, every member of the Company is also a Director of the Company, as contemplated in section 57 (4), the authority of the members to act without notice or compliance with any other internal formalities, as set out in that section, is limited or restricted to the extent set out in Part A of Schedule 2.

 

2.2    MEMBER’S RIGHT TO INFORMATION

 

(1)       In addition to the rights to access information set out in section 26 (1), a member of the Company has the further rights to information, if any, set out in Part B of Schedule 2 of this Memorandum of Incorporation.

 

 

2.3    REPRESENTATION BY CONCURRENT PROXIES

 

(1)       The right of a member of the Company to appoint persons concurrently as proxies, as set out in section 58 (3) (a) is limited, restricted or varied to the extent set out in Part C of Schedule 2.

 

 

2.4    AUTHORITY OF PROXY TO DELEGATE

 

(1)       The authority of a member’s proxy to delegate the proxy’s powers to another person, as set out in section 53 (3) (b) is limited or restricted to the extent set out in Part C of Schedule 2.

 

 

2.5    REQUIREMENTS TO DELIVER PROXY INSTRUMENT TO THE COMPANY

 

(1)       The requirement that a member must deliver to the Company a copy of the instrument appointing a proxy before that proxy may exercise the member’s rights at a members’ meeting, as set out in section 58 (3) (c) is varied to the extent set out in Part C of Schedule 2.

 

 

2.6    DELIBERATIVE AUTHORITY OF PROXY

 

(1)       The authority of a member’s proxy to decide without direction from the member whether to exercise, or abstain from exercising any voting right of the member, as set out in section 58 (7) is limited or restricted to the extent set out in Part C of Schedule 2.

 

 

2.7    RECORD DAE FOR EXERCISE OF MEMBER RIGHTS

 

(1)       If, at any time, the Company’s Board of Directors fails to determine a record date, as contemplated in section 59, the record date for the relevant matter is as determined in the manner set out in Part D of Schedule 2.

 

 

 

3.      ARTICLE 3 – MEMBERS’ MEETINGS

 

3.1    REQUIREMENT TO HOLD MEETINGS

 

(1)       The Company is not required to hold any members’ meetings other than those specifically required by the Companies Act, 2008.

 

 

3.2    MEMBERS’ RIGHT TO REQUISITION A MEETING

 

(1)       The right of members to requisition a meeting, as set out in section 61 (3), may be exercised by at least 10% of the voting members, as provided for in that section.

 

 

3.3    LOCATION OF MEMBERS’ MEETINGS

 

(1)       The authority of the Company’s Board of Directors to determine the location of any members’ meeting, and the authority of the Company to hold any such meeting in the Republic or in any foreign country, as set out in section 61 (9) is not limited or restricted by this Memorandum of Incorporation.

 

 

3.4    NOTICE OF MEMBERS’ MEETINGS

 

(1)       The minimum number of days for the Company to deliver a notice of a members’ meeting to the members, as required by section 62 is 14 days before the meeting is to begin.

 

 

3.5    ELECTRONIC PARTICIPATION IN MEMBERS’ MEETINGS

 

(1)       The authority of the Company to conduct a meeting entirely by electronic communication, or to provide for participation in a meeting by electronic communication, as set out in section 63, is not limited or restricted by this Memorandum of Incorporation.

 

 

3.6    QUORUM FOR MEMBERS’ MEETINGS

 

(1)       The Quorum requirement for a members’ meeting to begin, or for a matter to be considered are as set out in section 64 (1) subject to a minimum of 10% in substitution for the 25% required by that section.

 

(2)       The time periods allowed in section 64 (4) and (5) apply to the Company, subject to the variations set out in Part D of Schedule 3.

 

(3)       The authority of a meeting to continue to consider a matter, as set out in section 64 (9) is limited or restricted to the extent set out in Part D of Schedule 3.

 

 

3.7.   ADJOURNMENT OF MEMBERS’ MEETINGS

 

(1)       The maximum period allowable for an adjournment of a members’ meeting us as set out in section 64 (12), subject to the variations set out in Part E of Schedule 3.

 

 

3.8    MEMBERS’ RESOLUTIONS

 

(1)       For any ordinary resolution to be adopted at a members’ meeting, it must be supported by more than 50% of the members who voted on the resolution, as provided in section 65 (7).

 

(2)       For a special resolution to be adopted at a members’ meeting, it must be supported by at least 75% of the members who voted on the resolution, as provided in section 65 (7).

 

(3)       A special resolution adopted at a members’ meeting is not required for a matter to be determined by the Company, except those matters set out in section 65 (11).

 

 

 

4.      ARTICLE 4 – DIRECTORS AND OFFICERS

 

          4.1    COMPOSITION OF THE BOARD OF DIRECTORS

 

(1)       The Board of Directors of the Company comprises of at least 3 (three) directors, 1 (one) of whom shall be the Incorporator of the Company as shown on the cover sheet, and all whom -

 

(a)       Serve for a term of 50 years.

 

(2)In addition to the elected directors, there are no appointed ex officio directors of the company, as contemplated in section 66 (4).

(3)In addition to satisfying the qualification and eligibility requirements set out in section 69, to become or remain a director of the Company, a person need not satisfy any further eligibility requirements or qualifications.

(4)Each appointed director of the Company serves for an indefinite term, until substituted by the person or entity that made the appointment.

 

          4.2.   AUTHORITY AND COMPENSATION OF THE BOARD OF DIRECTORS

 

(1)       The authority of the Company’s Board of Directors to manage and direct the business and affairs of the Company, as set out in section 66 (1) is not limited or restricted by this Memorandum of Incorporation.

 

(2)       This Memorandum does not limit, restrict or qualify the power of the Company to pay remuneration to its Directors for their service as Directors as reasonable compensation for services rendered to the Company in accordance with item 4 (3) of Schedule 1 of the Act.

 

 

          4.3    BOARD OF DIRECTORS’ MEETINGS

 

(1)       The authority of the Company’s Board of Directors to consider a matter other than at a meeting, as set out in section 74 is not limited or restricted by this Memorandum of Incorporation.

 

(2)       The right of the Company’s Directors to requisition a meeting of the Board, as set out in Section 73 (1), may be exercised by at least 25% of the directors, if the board has 12 or more members, or by 2 (two) directors, in any other case, as provided in that section.

 

(3)       The authority of the Company’s Board of Directors to conduct a meeting entirely by electronic communication, or to provide for participation in a meeting by electronic communication, as set out in section 73 (3); is not limited or restricted by this Memorandum of Incorporation.

 

(4)       The authority of the Company’s Board of Directors to determine the manner and form of providing notice of its meetings, as set out in section 73 (4) is not limited or restricted by this Memorandum of Incorporation.

 

(5)       The authority of the Company’s Board of Directors to proceed with a meeting despite a failure or defect in giving notice of the meeting, as set out in Section 73 (5) is not limited by this Memorandum of Incorporation.

 

(6)       The quorum requirement for a directors’ meeting to begin, the voting rights at such a meeting, and the requirements for approval of a resolution at such a meeting, are as set out in section 73 (5).

 

 

          4.4    INDEMNIFICATION OF DIRECTORS

 

(1)       The authority of the Company’s Board of Directors to advance expenses to a director, or indemnify a director, in respect of the defense of legal proceedings, as set out in section 78 (3) is not limited or restricted by this Memorandum of Incorporation.

 

(2)       The authority of the Company’s Board of Directors to indemnify a director in respect of liability, as set out in section 78 (5) is not limited or restricted by this Memorandum of Incorporation.

 

(3)       The authority of the Company’s Board of Directors to purchase insurance to protect the Company, or a director, as set out in section 78 (6) is not limited or restricted by this Memorandum of Incorporation.

 

 

          4.5    OFFICERS AND COMMITTEES

 

(1)       The Board of Directors may appoint any officers it considers necessary to better achieve the objects of the Company.

 

(2)       The authority of the Company’s Board of Directors to appoint committees of directors, and to delegate to any such committee any of the authority of the Board as set out in section 72 (1), or to include in any such committee persons who are not directors, as set out in section 72 (2) (a) is not limited or restricted by this Memorandum of Incorporation.

 

(3)       The authority of a committee appointed by the Company’s Board, as set out in section 72 (2) (b) and (c) is not limited or restricted by this Memorandum of Incorporation.

 

 

 

 

 

 

 

 

 

 

5.      ARTICLE 5 – GENERAL PROVISIONS

 

 

Schedule 1 – Incorporation and Nature of the Company

 

Part A

(1)  Notification

a.    Each Member of the Company chooses as his/her domicilium citandi et executandi the address:

                                          i.    which he/she has nominated to receive monthly statements from the Company in respect of his/her child; or

                                        ii.    the email address which he/she has nominated to receive monthly statements from the Company in respect of his/her child.

b.    Notwithstanding the above, sufficient notice shall be deemed to have been given if a Member’s child was given a handwritten notice at class.

 

(2)  Dispute Resolution

a.    If any dispute arises out of or in connection with this Memorandum, or related thereto, whether directly or indirectly, including the enforcement of the provisions hereof, the Board may, in its sole discretion, refer such dispute for resolution by way of arbitration.

b.    A dispute within the meaning of this clause exists once the Board notifies the relevant parties in writing of the nature of the dispute and requires the resolution of the dispute in terms of this clause.

c.    Within 10 (ten) business days following such notification, the matter will be referred to arbitration as envisaged in the clauses below.

d.    The arbitration will be held as an expedited arbitration in accordance with the then current rules for expedited arbitration of the Arbitration Company of Southern Africa (“AFSA”) by 1 (one) arbitrator appointed by agreement between the Board and the relevant disputing party/ies.

e.    If the parties cannot agree on the arbitrator within 10 (ten) business days after the referral of the dispute to arbitration, the arbitrator shall be appointed by the Secretariat of AFSA.

f.     The decision of the arbitrator shall be final and binding on all parties and there shall be no further right of appeal.

g.    The provisions of this clause shall not preclude any party from access to an appropriate court of law for interim relief in respect of urgent matters pending finalization of this dispute resolution process.

 

Part B

(1)  None.

 

 

Part C

(1)  Upon dissolution of the Company, as required by Item 1 (4) of Schedule 2 of the Companies Act, 2008, the following Provision shall stand in this Memorandum of Incorporation:

a.    all the Company’s net assets shall be donated to another similar Non-Profit or Public Benefit Organisation, except for those assets:

                                          i.    Purchased directly by one of the Directors, in which case these assets will return to that Director upon Dissolution of the Company;

                                        ii.    Brought into the Company prior to its establishment/registration, in which case these assets are to return to the person, entity or organisation from which they came, upon Dissolution of the Company.

 

 

Part D

(1)  Any amendment of the Memorandum of Incorporation, as contemplated in section 16 (2) of the Act has the following provisions in this Memorandum of Incorporation:

a.    An amendment to the Memorandum of Incorporation may be requested by any one of the Directors on the Board of Directors;

b.    Such requested amendment as mentioned above shall only be passed by a 75% vote by the Board of Directors of the Company;

c.    Such a vote can take place at any meeting held by the Board of Directors or electronically if all Directors agree to an electronic vote.

 

(2)  Provisions to the publication of any rules made in terms of Section 15(3) to (5) and notice of any alteration of the Memorandum of Incorporation or the Rules, made in terms of section 17 (1) shall be as follows:

a.    All changes or additions are to be published electronically via email and on the Company’s Website only by way of an official Letter;

b.    All changes or additions are to be published within 10 (ten) days of such amendments or additions having been made or passed.

 

 

Part E

 

(1)  The Provisions for the Terms and Conditions of Membership are as below:

a.    The Members of the Company are the persons who are defined as “Members” in this Memorandum.

b.    The Members are all in a single class and are eligible to vote as follows:

                                          i.    Each enrolled child shall attract one vote, to be exercised by a Member present or by proxy.

                                        ii.    A Member shall be either a parent or a guardian or a sponsor of a child. Although both parents, guardians or sponsors are members, only one vote per child may be exercised. Should any dispute arise as to which Member is entitled to vote, the Member who has paid the club membership and coaching fees (a largest portion thereof) shall be entitled to exercise the vote.

                                       iii.    A Member shall not have a vote per child if:

1.    the child is not enrolled with the Company; or

2.    the child has been suspended and/or expelled from the Company at the time when votes are cast;

3.    the Member is in arrears with payment of coaching or club membership fees for more than 60 (sixty) days.

                                       iv.    Should a child be suspended and/or expelled and a process of an appeal is pending, or should a Member be in arrears with the payment of club membership or coaching fees for more than 60 (sixty) days, such Member may, in writing be authorised to vote if the Member has 7 (seven) days prior to any meeting, requested and received authority from the Board to do so. Any request to the Board should be addressed to it in writing.

                                        v.    The then Chairman of the Board shall make a final determination as to which Member is entitled to cast a vote at a Members’ meeting should a dispute arise between Members.

 

 

Schedule 2 – Rights of Members

 

Part A

(1)  Provisions limiting or restricting the right of members to act without meeting formal requirements, as contemplated in section 57 (4) of the Act are as follows:

a.    If, at any time, a Member of the Company is also a Director of the Company as contemplated in section 57(4), the authority of the Members to act without notice or compliance with any other internal formalities, as set out in that section is limited as follows:

                                          i.    The Member must give notice of intention to act of a minimum of 48 hours.

                                        ii.    The Member cannot bind the Company unless authorised to do so by the Board.

                                       iii.    The Member shall at all times remain subject to the Code of Conduct applicable to Directors, in addition to the conditions imposed on the Directors in the Act.

 

Part B

(1)  Provisions creating additional information rights of members, as contemplated in section 26, shall be as follows:

a.    The Members have the right to inspect the following information in respect of the Company:

                                          i.    the Company’s Memorandum, amendments to it and Rules made by the Company;

                                        ii.    Directors’ resolutions;

                                       iii.    the Company’s financial statements;

                                       iv.    Minutes of General Meetings;

                                        v.    A list of the Company’s Members and/or Directors;

                                       vi.    Directors’ Code of Conduct.

 

Part C

(1)  Provisions relating to the powers of members to appoint proxies, the appointment of proxies, and the powers of any such proxy, as contemplated in section 58 of the Act shall be as follows:

a.    The right of a member of the Company to appoint persons concurrently as proxies is limited and restricted, as a proxy can only be given to another Member and for a particular meeting.

b.    A proxy should be in writing and as close as possible to a format set out in Schedule 1 to this Memorandum. Such a written proxy must clearly indicate the resolution for which it is given and the manner in which the person holding the proxy should exercise his/her vote.

(2)  A Member’s proxy may not delegate the powers to another person.

(3)  A proxy must be delivered to the Company 48 (forty-eight) hours prior to the time of the meeting.

(4)  The Member may authorise a proxy to decide in his/her discretion whether to exercise or abstain from voting.

(5)  In case of a Special Resolution, the Member may not delegate such rights in a proxy and should clearly indicate the manner in which the vote falls to be cast.

 

Part D

(1)  Provisions respecting the fixing of a record date, as contemplated in section 59 of the Act shall be as follows:

a.    The Board shall, on not less than 10 (ten) business days before the date of an intended meeting, notify Members of any such meeting.

b.    Notification shall be given:

                                          i.    by way of letter and/or notification given to a child at class; or

                                        ii.    by way of electronic communication; or

                                       iii.    in a manner which the Board deems appropriate in the circumstances.

c.    The Board may, in its discretion, increase the record date, but not decrease such a date.

 

 

Schedule 3 – Members’ Meetings

 

 

Part A

(1)  None.

 

Part B

(1)  None.

 

Part C

(1)  None.

 

Part D

(1)  The provisions respecting the quorum requirements for members’ meetings, or varying the provisions of section 64 of the Act shall be as follows:

a.    The time periods provided for in section 64(4) and (5) of the Act are as follows:

                                          i.    if, within 30 (thirty) minutes after the appointed time for a meeting to begin, a minimum quorum is not present, the meeting shall be postponed without motion for 1 (one) week;

                                        ii.    the remainder of the provisions of section 64 of the Act apply.

b.    The authority of a meeting to continue to consider a matter is not limited.

 

Part E

(1)  The provisions varying section 64 (13) of the Act with respect to the maximum period for adjournment of a members’ meeting shall be as follows:

a.    The maximum period allowable for an adjournment of a members' meeting is 21 (twenty one) business days.

 

Part F

(1)  None

 

 

Schedule 4 – Directors of the Company

 

Part A

(1)  None.

 

Part B

(1)  None.

 

Part C

(1)  None.

 

Part D

(1)  None.

 

Part E

(1)  None.

 

Part F

(1)  None.

 

Part G

(1)  None.

 

Part H

(1)  None.