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Communal Property Associations Act, 1996 (Act No. 28 of 1996)

9. Principles to be accommodated in constitutions

 

(1) The constitution of an association shall be consistent with the following general principles:
(a) Fair and inclusive decision-making processes, in that—
(i) all members are afforded a fair opportunity to participate in the decision-making processes of the association;
(ii) any decision to amend the constitution or dissolve the association, or to dispose of or to encumber the property of the association, requires an inclusive decision-making process; and
(iii) the membership of any person may only be terminated on reasonable grounds by the association after the matter has been considered at a fair hearing at which the member was given an opportunity to present his or her case;
(b) equality of membership, in that—
(i) there is no discrimination against any prospective or existing member of the community, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds, namely race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language: Provided that a constitution may reflect the rules of a community with regard to the age at which a member may attend and vote at meetings of the association and the age at which a member may receive an allocation of land rights;
(ii) where different classes of membership are created—
(aa) the basis for differentiation is compatible with the overriding principle of equality;
(bb) and a community already occupies land, different classes shall not lead to different rights to land or resources among those members of the community who occupy the land, where no such differentiation existed previously; and
(cc) all members within a class of membership have equal rights;
(c) democratic processes, in that all members have the right—
(i) to receive adequate notice of all general meetings of the association;
(ii) to attend, speak at and participate in the voting at any general meeting;
(iii) to receive copies of minutes or to have other reasonable access to records of decisions taken at general meetings;
(iv) to inspect and make copies of the financial statements and records of the association; and
(v) to have access to a copy of the constitution;
(d) fair access to the property of the association, in that—
(i) the association shall manage property owned, controlled or held by it for the benefit of the members in a participatory and non-discriminatory manner;
(ii) a member may not be excluded from access to or use of any part of the association's property which has been allocated for such member's exclusive or the communal use except in accordance with the procedures set out in the constitution; and
(iii) the association may not sell or encumber the property of the association, or any substantial part of it, without the consent of a majority of the members present at a general meeting of the association;
(e) accountability and transparency, in that—
(i) accountability by the committee or committees to the members of the association is promoted;
(ii) the financial records of the association are subject to an annual independent verification, as approved by the Director-General;
(iii) all the cash of the association shall be deposited in an account opened in the name of the association with a bank registered in terms of the Banks Act, 1990 (Act No. 94 of 1990), or a mutual bank registered in terms of the Mutual Banks Act, 1993 (Act No. 124 of 1993), or with the Post Office Savings Bank contemplated in section 52 of the Post Office Act, 1958 (Act No. 44 of 1958), or such other institution as may be approved by the Director-General;
(iv) the association may not purchase or acquire for consideration shares other than shares which are listed on a licensed stock exchange as defined in the Stock Exchanges Control Act, 1985 (Act No. 1 of 1985);
(v) there shall be effective financial management and recording of the transactions of the association;
(vi) the committee members shall have fiduciary responsibilities in relation to the association and its members, and shall exercise their powers in the best interests of all the members of the association, without any advantage to themselves in comparison with other members who are similarly placed.

 

(2) The constitution of an association shall be interpreted in a manner which is consistent with the spirit and objects of the principles referred to in subsection (1).