THE COMPANIES ACT, NO. 71 OF 2008
(AS AMENDED)
MEMORANDUM OF INCORPORATION
OF
THE PIETERMARITZBURG CHAMBER OF BUSINESSNPC
A NON-PROFIT COMPANY WITH MEMBERS
REGISTRATION NUMBER:2002/026810/08
REGISTRATION DATE:23 October 2002
Page 1
TABLE OF CONTENTS
1INTERPRETATION......
2JURISTIC PERSONALITY......
3OBJECTs......
4NON-PROFIT COMPANY PROVISIONS
5LIMITATION OF LIABILITY
6powers of the company......
7RESTRICTIVE CONDITIONS
8APPLICATION OF OPTIONAL PROVISIONS OF THE ACT......
9MEMBERS, ADMISSION TO MEMBERSHIP & subscriptions
10TERMINATION OF MEMBERSHIP
11NON-TRANSFERABILITY OF MEMBERSHIP......
12REPRESENTATIVE MEMBERS......
13MEMBERS' register......
14MEETINGS of members and THE ANNUAL general meeting
15membERS' MEETINGS BY ELECTRONIC COMMUNICATION...... 20
16VOTES OF MEMBERS...... 20
17PROXIES AND REPRESENTATIVES...... 21
18MEMBERS' RESOLUTIONS
19MEMBERS ACTING OTHER THAN AT A MEETING...... 24
20COMPOSITION and powers OF THE BOARD OF DIRECTORS...... 25
21THE CHIEF EXECUTIVE OFFICER...... 27
22DIRECTORS' MEETINGS...... 29
23directors' compensation AND FINANCIAL ASSISTANCE...... 31
24INDEMNIFICATION OF DIRECTORS...... 32
25 committees of the board...... 32
26 EXECUTIVE COMMITTEE
27office bearers...... 34
28Fundamental transactions...... 36
29ANNUAL financial statementS...... 36
30ACCESS TO COMPANY RECORDS...... 38
31NOTICES...... 39
32amendment of memorandum of INCORPORATION......
33COMPANY RULES......
34DISSOLUTION/WINDING UP...... 41
1
1INTERPRETATION
1.1In this Memorandum of Incorporation, unless the context clearly indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings–
1.1.1"Act" means the Companies Act, No 71 of 2008,as amended, consolidated or re-enacted from time to time, and includes all Schedules to such Act and the Regulations;
1.1.2"Board" means the board of Directors from time to time of the Company or if there is only one Director, then that Director;
1.1.3"the CEO" means the chief executive officer for the time being appointed in terms of clause 20.12;
1.1.4"CIPC" means the Companies and Intellectual Property Commission established by section 185;
1.1.5"Commissioner" means the Commissioner for the South African Revenue Service;
1.1.6"Company" means the company named on the first page of this Memorandum of Incorporation, the Pietermaritzburg Chamber of Business, duly incorporated under the registration number endorsed thereon;
1.1.7"Director" means a member of the Board as contemplated in section 66, or an alternate director, and includes any person occupying the position of a director or alternate director, by whatever name designated;
1.1.8"Electronic Communication" has the meaning set out in section 1 of the Electronic Communications and Transactions Act, No 25 of 2002;
1.1.9"Executive Committee" means the committee constituted on the basis as set out in clause 25;
1.1.10"IFRS" means the International Financial Reporting Standards, as adopted from time to time by the Board of the International Accounting Standards Committee, or its successor body, and approved for use in South Africa from time to time by the Financial Reporting Standards Council established in terms of section 203;
1.1.11“Management Board” means the Board of Directors of the Company;
1.1.12"Member" means any natural or juristic person, including any profit company (whether corporate, individual, emerging, associate, honorary, country or reciprocal), admitted as a member of the Company in terms of the provisions of this Memorandum of Incorporation;
1.1.13"Membership Category" means the groups of categories of members contemplated in clause 9.1;
1.1.14"Memorandum of Incorporation"means this memorandum of incorporation of the Company, as amended from time to time;
1.1.15""Objects" shall have the meaning ascribed thereto in Clause 3 below;
1.1.16"President," and "Deputy President" means the President and the Deputy President/s respectively for the time being elected in terms of clause 27.2;
1.1.17"Regulations" means the regulations published in terms of the Act from time to time;
1.1.18"Republic" means the Republic of South Africa; and
1.1.19"Rules" means any rules made in respect of the Company from time to time as contemplated in section 15(3) to (5) of the Act and clause33 hereof.
1.2In this Memorandum of Incorporation, unless the context clearly indicates otherwise–
1.2.1words and expressions defined in the Act and which are not defined herein shall have the meanings given to them in the Act;
1.2.2a reference to a section by number refers to the corresponding section of the Act notwithstanding the renumbering of such section after the date on which the Company is incorporated;
1.2.3in any instance where there is a conflict between a provision (be it expressed, implied or tacit) of this Memorandum of Incorporation and–
1.2.3.1an alterable or elective provision of the Act, the provision of this Memorandum of Incorporation shall prevail to the extent of the conflict; and
1.2.3.2an unalterable or non-elective provision of the Act, the unalterable or non-elective provision of the Act shall prevail to the extent of the conflict unless the Memorandum of Incorporation imposes on the Company a higher standard, greater restriction, longer period of time or similarly more onerous requirement, in which event the relevant provision of this Memorandum of Incorporation shall prevail to the extent of the conflict;
1.2.4clause headings are for convenience only and are not to be used in its interpretation;
1.2.5an expression which denotes-
1.2.5.1any gender includes the other genders;
1.2.5.2a natural person includes a juristic person and vice versa; and
1.2.5.3the singular includes the plural and vice versa;
1.2.6any reference to members represented by proxy shall include members represented by an agent appointed under a general or special power of attorney, and references to members present or acting in person shall include corporations represented or acting in the manner prescribed in the statutes;
1.2.7if the due date for performance of any obligation in terms of this Memorandum of Incorporation is a day which is not a business day then (unless otherwise stipulated), the due date for performance of the relevant obligation shall be the immediately succeeding business day;
1.2.8any words or expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout the whole of this Memorandum of Incorporation;
1.2.9any reference to a notice shall be construed as a reference to a written notice, and shall include a notice which is transmitted electronically in a manner and form permitted in terms of the Act and/or the Regulations.
1.3Any reference in this Memorandum of Incorporation to–
1.3.1"days" shall be construed as calendar days unless qualified by the word "business", in which instance a "business day" will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic from time to time;
1.3.2"law" means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law and a reference to any statutory enactment shall be construed as a reference to that enactment as amended or substituted from time to time;
1.3.3"writing"means legible writing and in English and includes printing, typewriting, lithography or any other mechanical process, as well as any electronic communication in a manner and form permitted in terms of the Act and/or the Regulations.
1.4The words "include" and "including" mean "include without limitation" and "including without limitation". The use of the words "include" and "including" followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
1.5Unless otherwise provided in this Memorandum of Incorporation or the Act, defined terms appearing herein in title case shall be given their meaning as defined, while the same terms appearing in lower case shall (except where defined in the Act) be interpreted in accordance with their plain English meaning.
1.6Where a particular number of business days is provided for between the happening of one event and another, the number of days must be calculated by excluding the day on which the first event occurs and including the day on which or by which the second event is to occur.
1.7Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention.
1.8Any reference herein to "this Memorandum of Incorporation" shall be construed as a reference to this Memorandum of Incorporation as amended from time to time.
2JURISTIC PERSONALITY
2.1The Company is a pre-existing company as defined in the Act and, as such,continues to exist as a non-profit company as if it had been incorporated and registered in terms of the Act, as contemplated in item 2 of the Fifth Schedule to the Act, and this Memorandum of Incorporation replaces and supersedes the Memorandum and Articles of Association of the Company applicable immediately prior to the filing hereof.
2.2The Company is incorporated in accordance with and governed by–
2.2.1the unalterable provisions of the Act, subject only to such higher standards, greater restrictions, longer periods of time or similarly more onerous requirements as may be imposed on the Company by this Memorandum of Incorporation in relation to such unalterable provisions;
2.2.2the alterable provisions of the Act, subject to the limitations, extensions, variations or substitutions set out in this Memorandum of Incorporation;
2.2.3the other provisions of this Memorandum of Incorporation; and
2.2.4its rules, if any.
3OBJECTs
3.1The object of the Company is to protect and promote the interests of businesswithin Pietermaritzburg, Msunduzi, uMgungundlovu and the Midlands region of kwaZulu-Natal, and to facilitate business opportunities and to provide information and advocacy services to stimulate a business environment conducive to business growth and the development of the local economy.
3.2The provisions of this Memorandum of Incorporation are consistent with the principles set out in item 1(2) to item 1(9) of Schedule 1 to the Act in so far as such principles are applicable to the Company and no amendment of this Memorandum of Incorporation shall be competent to the extent that it is contrary to or negates any of such principles.
4NON-PROFIT COMPANY PROVISIONS
4.1The Company is a non-profit company, and accordingly the Company–
4.1.1must apply all of its assets and income, however derived, to advance its stated objectsset out in clause 3.1; and
4.1.2subject to clause 4.1.1, may–
4.1.2.1acquire and hold securities issued by a profit company; or
4.1.2.2directly or indirectly, alone or with any other person, carry on any business, trade or undertaking consistent with or ancillary to its stated objectives.
4.2The Company, as a non-profit company, must not, directly or indirectly, pay any portion of its income or transfer any of its assets, regardlessas to how the income or asset was derived, to any person who is or was an incorporator of the Company, or who is a Member or Director, or person appointing a Director of the Company, except–
4.2.1as reasonable –
4.2.1.1remuneration for goods delivered or services rendered to, or at the direction of the Company; or
4.2.1.2payment of, or reimbursement for, expenses incurred to advance a stated objective of the Company;
4.2.2as payment of an amount due and payable by the Company in terms of a bona fide agreement between the Company and that person or another;
4.2.3as payment in respect of any rights of that person, to the extent that such rights are administered by the Company in order to advance a stated objective of the Company; or
4.2.4in respect of any legal obligation binding on the Company.
4.3Despite any provision in any law or agreement to the contrary, upon the winding-up or dissolution of the Company–
4.3.1no past or present Member or Director of the Company, or person appointing a Director of theCompany, is entitled to any part of the net value of the Company after its obligations and liabilities have been satisfied; and
4.3.2the entire net value of the Company must be distributed to one or more non-profit companies, registered external non-profit companies carrying on activities within the Republic, voluntary associations or non-profit trusts–
4.3.2.1having objects similar to the Company’s main objective;
4.3.2.2as determined –
4.3.2.2.1in terms of this Memorandum of Incorporation; or
4.3.2.2.2by the Members, failing whom, the Directors, at or immediately before the time of its dissolution; or
4.3.2.2.3by the court, if no such determination is made in this Memorandum of Incorporation or by the Members or Directors; and
5LIMITATION OF LIABILITY
Subject to the Companies Act, no person shall, solely by reason of being an incorporator, office bearer, Director or Member of the Company, be liable for any liabilities or obligations of the Company.
6powers of the company
6.1The Company has all of the legal powers and capacity of an individual for purposes of carrying out its objectives, except to the extent that a juristic person is incapable of exercising any such power or having any such capacity, and no provision contained in this Memorandum of Incorporation should be interpreted or construed as negating, limiting, or restricting those powers in any way whatsoever.
6.2The legal powers and capacity of the Company are not subject to any restrictions, limitations or qualifications, as contemplated in section 19(1)(b)(ii).
7RESTRICTIVE CONDITIONS
This Memorandum of Incorporation does not contain any restrictive conditions applicable to the Company as contemplated in section 15(2)(b) or (c).
8APPLICATION OF OPTIONAL PROVISIONS OF THE ACT
The Company elects, in terms of section 34(2), to comply to a limited extent as contemplated in clause 29voluntarily with the extended accountability provisions set out in Chapter 3 of the Act.
9MEMBERS, ADMISSION TO MEMBERSHIPAND SUBSCRIPTIONS
9.1Classification of Members & Admission
9.1.1The Members of the Company shall comprise of corporate members, individual members, emerging members, associate members, honorary members, country members and reciprocal members.
9.1.2A Corporate Member of the Company shall be-
9.1.2.1those Members who were Corporate Members of the Company prior to the Act coming into being in accordance with Item 11 of Schedule 5 of the Act;
9.1.2.2Any interested registered company, close corporation, partnership, sole proprietorship and/or other enterprise (whether public or private), established for the primary reason of conducting business that has been admitted into membership at a duly constituted meeting of the Management Board;
9.1.3An Individual Member shall be -
9.1.3.1those Members who were Individual Members of the Company prior to the Act coming into being in accordance with Item 11 of Schedule 5 of the Act;
9.1.3.2any individual interested in the work of the Pietermaritzburg Chamber of Business, but not engaged in a business occupation, and that has been admitted into membership at a duly constituted meeting of the Management Board;
9.1.4An Emerging Member shall be -
9.1.4.1those Members who were Emerging Members of the Company prior to the Act coming into being in accordance with Item 11 of Schedule 5 of the Act;
9.1.4.2any interested registered company, close corporation, partnership, sole proprietorship and/or other enterprise that has less than 10 (ten) employees and that has been in operation less than 1 (one) year and that has been admitted into membership at a duly constituted meeting of the Management Board;
9.1.5An Associate Member shall be –
9.1.5.1those Members who were Associate Members of the Company prior to the Act coming into being in accordance with Item 11 of Schedule 5 of the Act;
9.1.5.2any interested public benefit, non government or educationorganisation, that has been admitted into membership at a duly constituted meeting of the Management Board;
9.1.6An Honorary Member of the Company shall be-
9.1.6.1those Members who were Honorary Members of the Company prior to the Act coming into being in accordance with Item 11 of Schedule 5 of the Act;
9.1.6.2any individual who, by reason of rendering outstanding service to the Company,is admitted as an Honorary Member, by the Management Boardat their discretion at a duly constituted meeting of the Management Board;
9.1.7A Country Member of the Company shall be-
9.1.7.1those Members who were Country Members of the Company prior to the Act coming into being in accordance with Item 11 of Schedule 5 of the Act;
9.1.7.2Any interested registered company, close corporation, partnership, sole proprietorship and/or other enterprise established for the primary reason of conducting business,situated outside of the Msunduzi Municipal boundries that has been approved as a Country member by the Management Board and admitted into membership at a duly constituted meeting of the Management Board;
9.1.8A Reciprocal Member of the company shall be-
9.1.8.1those Members who were Reciprocal Members of the Company prior to the Act coming into being in accordance with Item 11 of Schedule 5 of the Act;
9.1.8.2any membership based organisation admitted as a Reciprocal Member, by the Management Board at their discretion at a duly constituted meeting of the Management Board;
9.1.9Applicants for membership, who apply for membership in a manner prescribed by the Board from time to time, and who –
- subscribe to the Objects of the Company; and
- endorse the Rules,
shall be eligible for membership.
9.1.10Applicants for membership of the Company, shall be admitted by a two-thirds majority vote (of those present) at a duly constituted meeting of the Management Board.
9.1.11Any admission to membership shall only become effective when the applicant for membership has paid in full the prescribed subscription fee, or the first of its instalments, if so agreed, and any other amounts which may be payable on becoming a Member, as determined from time to time by the Management Board.
9.1.12Nothing in this Memorandum of Incorporation shall derogate from the autonomy of all Members and, as such, all Members shall have the right to disassociate themselves from or disagree with any majority or other decisions of the Company, and shall further have the right to state or disseminate any views or representations at variance with such majority or other decisions of the Company. Members should strive however to protect the integrity of the Company through seeking common positions as far as possible.
9.2Membership Subscriptions & Benefits of Membership
9.2.1The Management Board shall determine the subscriptions applicable for each category of membership each year.
9.2.2The Management Board may also determine from time to time an enrolment fee which shall be payable on application for membership.
9.2.3Membership fees are payable annually in advance by the 31st of January of each year.
9.2.4The payment of subscriptions in instalments by debit order shall be permitted with the understanding that the cost of recovery by this means will increase the annual subscription. At any stage during the year, while monthly payments have been effected, the member shall be considered to be paid up.
9.2.5Honorary Members of the Company shall enjoy all the benefits of PCB membership without the payment of subscriptions.
9.2.6Reciprocal Membersshall enjoy all the benefits of PCB membership without the payment of subscriptions, however the Company will enjoy membership of their organisation in lieu of these membership fees.
9.2.7Only Corporate, Country,Associate and Honorary Members shall have the right to vote.
9.2.8The founding members of the Company will each have 1 (one) vote over and above their possible Corporate or Honorary Member vote.
9.2.9In addition to the rights of membership prescribed by the Act and by this Memorandum of Incorporation, membership of the Company shall confer upon each Member the right to receive–