BARDOLINO...2019/02/15 · 6 Constitution of the Bardolino Lifestyle Resort present at a general...

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.


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.


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


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


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


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.


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;


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.


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;


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.


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


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.


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.


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.


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.


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.


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.


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.


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


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


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,


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.


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


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


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;


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


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.


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


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.


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.


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.


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;


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;


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


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.


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BARDOLINO...2019/02/15 · 6 Constitution of the Bardolino Lifestyle Resort present at a general...

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