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SISTER SITES |
PRESIDENT'S OFFICE It is hereby notified that the President has assented to the following Act which is hereby published for general information:- ACTTo enable communities to form juristic persons, to be known as communal property associations in order to acquire, hold and manage property on a basis agreed to by members of a community in terms of a written constitution; and to provide for matters connected therewith. (English text signed by the President.) (Assented to 15 May 1996.) WHEREAS it is desirable that disadvantaged communities should be able to establish appropriate legal institutions through which they may acquire, hold and manage property in common; AND WHEREAS it is necessary to ensure that such institutions are established and managed in a manner which is non-discriminatory, equitable and democratic and that such institutions be accountable to their members; AND WHEREAS it is necessary to ensure that members of such institutions are protected against abuse of power by other members; BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:- 1. In this Act, unless the context indicates otherwise-
Application of Act2. (1) The provisions of this Act shall apply to a community-
(2) The Minister may, with due regard to the objects of this Act, approve a community contemplated in paragraph (c) or (d) of subsection (1) for the purposes of this Act if he or she is satisfied that the community is disadvantaged and that it is in the public interest that such approval be given, having regard to the nature and current use of the land. (3) The Minister may on application by a similar entity, and having had due regard to the objects of this Act and the public interest, by notice in the Gazette, and subject to such qualifications or conditions as he or she may determine, make the provisions of section 8, 9, 10, 11, 12, 14 or 16, or any subsection thereof, applicable to such entity. (4) For the purposes of subsection (3), any reference to an association shall be deemed to be a reference to the entity in question. (5) Where a community has, prior to the commencement of this Act, established a similar entity through a democratic process, the Director-General may, if such community wishes to establish an association contemplated in this Act, exempt such community from such provisions of section 6, 7 or 8 as may place an unnecessary burden on the community, having regard to the procedure that was followed by the community in establishing such entity. Seal of Communal Property Associations3. There shall be a seal of Communal Property Associations and judicial cognizance may be taken of the impression of such seal. 4. No act or omission of whatever nature by the Director-General, Registration Officer or any officer or other person performing functions under the authority of the Director-General or Registration Officer, as the case may be, in terms of this Act, shall subject the Director-General, the Registration Officer, or any such officer or person to any liability for any loss or damage sustained by any person as a result of any such act or omission, unless such act or omission was in bad faith or constituted gross negligence. Registration of provisional association5. (1) A community may apply to the Director-General for the registration of a provisional communal property association. (2) An application for registration in terms of subsection (1) shall contain-
(3) If the Director-General is satisfied that the provisional association qualifies for registration under this Act, he or she shall refer the application and his or her written consent to the Registration Officer, who shall register the provisional association in the prescribed manner, allocate a registration number and issue a provisional communal property association certificate to such provisional association. (4) Upon registration of a provisional association-
(5) If any provisional association fails to adopt a constitution within 12 months from the date of registration of a provisional association, the Minister may approve a draft constitution prepared by the Director-General for such provisional association, and cause the provisional association to be registered as an association in terms of this Act: Provided that the Director-General may extend the period of 12 months for a further period of 12 months if there is good cause for him or her to do so. 6. (1) A community wishing to procure the registration of an association under this Act may apply to the Director-General for assistance in the preparation of a draft constitution. (2) The Director-General shall, after receiving an application in terms of subsection (1), designate any officer in the Department of Land Affairs or any other person to provide the community with such assistance as may be required and available for the preparation of a draft constitution. (3) A community may submit a draft constitution to the Director-General for consideration. (4) The Director-General may suggest amendments to such draft constitution in order to make it comply with the provisions of section 9, and shall notify the community of the reasons for such suggestions. Adoption of constitution7. (1) When a community or a provisional association wishes to adopt a constitution it shall notify the Director-General accordingly and shall convene a meeting or meetings in such manner as may be prescribed for the adoption of constitutions. (2) An authorised officer shall attend the meeting or meetings contemplated in subsection (1), to take minutes of the proceedings, to witness the adoption of the constitution and to prepare a report setting out his or her observations in relation to-
(3) The community or provisional association shall, as soon as practicable after the adoption of the constitution, submit it together with the prescribed information to the Director-General. (4) Any person claiming to have been excluded from participation in the process of reparation and adoption of the constitution or claiming that the process was not fair may lodge a complaint with the Director-General, who may, if he or she is satisfied on reasonable grounds that the complaint is material, refuse to cause the association to be registered until the issue has been resolved to the satisfaction of the Director-General. 8. (1) The Director-General shall consider an application for registration of an association together with any prescribed information, the report referred to in section 7(2) and the constitution adopted by the association. (2) An association shall qualify for registration if-
(4) If the Director-General is not satisfied that the association qualifies for registration he or she shall notify the community of the steps to be taken to procure the registration of the association. (5) The Director-General may assist a community to deal with any issue which is to be addressed in order to procure the registration of the association. (6) Upon the registration of an association-
(7) A person appointed to a committee of an association shall stand in a fiduciary relationship to the members of the association. (8) The Minister may, on application made to him or her in the prescribed manner, determine, on such conditions as he or she may lay down, that the laws governing the establishment of townships and, in the case of agricultural land as defined in the Subdivision of Agricultural Land Act, 1970 (Act No. 70 of 1970), the provisions of that Act, shall not apply in respect of land registered in the name of an association. (9) An association registered under this Act shall reflect on all correspondence and contracts the fact that it is so registered, and its registration number. (10) No amendment of a constitution of an association registered under this Act shall be valid or binding until it has been accepted by the Director-General in writing and lodged with the Registration Officer. (11) The provisions of sections 6 and 7 and subsections (1) to (5) of this section, shall apply mutatis mutandis with regard to any proposed amendment of the constitution of an association registered under this Act: Provided that the Director-General shall waive compliance with the provisions of section 7 if he or she is satisfied that the amendment was adopted in terms of the constitution, that the nature of the amendment is such that compliance with those provisions is not necessary, and that the amendment does not have a material adverse effect on the rights of members. 9. (1) The constitution of an association shall be consistent with the following general principles:
(b) equality of membership, in that-
(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). 10. (1) The Director-General may have forms, pamphlets and other documents prepared and distributed in order to promote the achievement of the objects of this Act. (2) The Director-General may, of his or her own accord or at the request of a community, an association, a provisional association or any member thereof, appoint a conciliator acceptable to the parties to a dispute to assist in resolving any issues for the purpose of the preparation or adoption of a constitution or to resolve a dispute between an association or provisional association and its members or between members or committee members: Provided that if the parties to the dispute do not reach agreement on the person to be appointed, the Director-General may appoint a person who has adequate experience or knowledge in conciliating community disputes. (3) A conciliator appointed in terms of subsection (2) shall attempt to resolve the dispute-
(4) The conciliator shall report to the Director-General and the parties on the result of his or her conciliation and make recommendations in relation thereto. (5) All discussions taking place and all disclosures and submissions made during the conciliation process shall be privileged, unless the parties agree to the contrary. (6) The Director-General may from time to time appoint persons or organisations acceptable to a community and with relevant knowledge or expertise to provide assistance and support to such community for the purposes of section 6. (7) Any person contemplated in subsection (2) or (6) who is not in the full-time service of the State may from moneys appropriated by Parliament for this purpose, be paid such remuneration and allowances in respect of the services rendered as may be determined by the Minister in consultation with the Minister of Finance. (8) The Minister may, in consultation with the Minister of Finance institute other programmes for the provision of assistance to communities or associations or provisional associations for the purposes of this Act. 11. (1) An association or provisional association registered under this Act shall, at the prescribed times, furnish prescribed documents and information to the Director-General in order to enable him or her to monitor compliance with the provisions of the relevant constitution and this Act. (2) The Director-General may undertake an inspection of the affairs of an association or provisional association. (3) The Director-General may, for the purposes of this section-
(4) A subpoena issued in terms of subsection (3)(b) shall be served in accordance with the manner prescribed for the service of subpoena in terms of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944). (5) Any person who is duly subpoenaed in terms of subsection (3)(b) and who fails, without lawful excuse, to appear or to provide the required information or documentation, shall be guilty of an offence and liable to the punishment provided in the said Magistrates' Courts Act, 1944, for failure to comply with a subpoena issued in terms of that Act. (6) If a dispute arises within an association or provisional association the Director-General may, of his or her own accord, or at the request of a member of the association or provisional association-
(7) When acting in terms of subsection (6) the Director-General shall be guided by the aim of resolving the dispute in accordance with the provisions of the constitution of the association. (8) The identity of a member making a request in terms of subsection (6) or the fact that a request has been made by a member need not be disclosed if there are reasonable grounds for believing that such member may be victimised. (9) If the membership of a member has been terminated, the association or provisional association shall inform the Director-General and provide the Director-General with the prescribed information relating to the termination. 12. (1) An association may not dispose of or encumber or conclude any prescribed transaction in respect of the whole or any part of the immovable property of the association, or any real rights in respect thereof, without the consent of the majority of members present at a general meeting of members. (2) Such consent may be given in respect of a series of transactions, without identifying each individual transaction. (3) Any disposal, mortgage, encumbrance or prescribed transaction in contravention of subsection (1) shall be voidable. (4) A member who alleges that an association has concluded a transaction contrary to the provisions of subsection (1) may request the Director-General to assist him or her in challenging the validity of such transaction. (5) The Director-General may, if he or she considers it desirable having regard to the nature and seriousness of the allegation, make a conciliator contemplated in section 10(2) available to assist in the resolution of the dispute. (6) The Director-General shall, at the request of an association, appoint an authorised officer to attend a general meeting of an association and to take such other steps as may be necessary in order to certify that a transaction referred to in subsection (1) has been duly approved at a general meeting and is in accordance with the constitution of the association. 13. (1) A division of the Supreme Court or a Magistrate's Court having jurisdiction in respect of the area in which the property of the association is situated or the area in which the land which may be acquired by a provisional association is situated, may, on application made by the Director-General, an association or provisional association or any member thereof, or any other interested person, place the association or provisional association under the administration of the Director-General or grant a liquidation order in respect of an association or provisional association, where the association or provisional association, because of insolvency or maladministration or for any other cause is unwilling or unable to pay its debts or is unable to meet its obligations, or where it would otherwise be just and equitable in the circumstances. (2) The Director-General shall, pursuant to an administration order referred to in subsection (1), have such powers to manage the affairs of the association or provisional association as the Court, subject to the provisions of this Act, may determine. (3) The Director-General may, upon written application by an association or provisional association, cause such an association or provisional association to be deregistered, if he or she is satisfied that-
(4) Where the Court orders the liquidation of an association or provisional association, it shall make such order as to the distribution of the assets of the association or provisional association as it deems just and equitable, having considered any recommendations which the Director-General may make in this regard. (5) The Minister may prescribe the procedure to be followed in an application contemplated in subsection (1), and set out the powers and duties of the Director-General, the Registration Officer, the association, members and interested parties in those situations. 14. (1) A person shall be guilty of an offence if he or she-
(2) The Director-General shall, if so requested by the committee or the association-
(3) In a prosecution under section I of the Trespass Act, 1959 (Act No. 6 of 1959), and in any proceedings for the eviction of any person from property owned, controlled or managed by an association, a certificate issued by the Director-General in terms of subsection (2) shall be prima facie proof of the correctness of the contents thereof. (4) Any person convicted of a contravention of subsection (1) shall be liable to a fine or to imprisonment for a period not exceeding ten years or to both such fine and imprisonment. 15. (1) The Director-General may-
(2) Any delegation under this section shall not prevent the exercise of the relevant power by the Director-General himself or herself, and the Director-General shall be entitled to rescind, review or withdraw any decision or action taken by any person to whom he or she has delegated any power. 16. Any person aggrieved by a decision of the Director-General may in the prescribed manner appeal to the Minister, who may uphold the appeal in whole or in part and rescind or vary the decision, or dismiss the appeal. 17. The Director-General shall in every calendar year submit to the Minister a report concerning associations and provisional associations and the extent to which the objects of this Act are being achieved, and the Minister shall table the report in Parliament. 18. (1) The Minister may make regulations intended to give effect to the implementation of this Act. (2) Any regulation made under subsection (1) may in respect of any contravention thereof or failure to comply therewith prescribe a penalty of a fine or imprisonment for a period not exceeding five years, or both such fine and imprisonment. 19. This Act shall be called the Communal Property Associations Act, 1996. MATTERS TO BE ADDRESSED IN THE CONSTITUTION OF A COMMUNAL PROPERTY ASSOCIATION [Section 8(2)(d)] 1. Name of the association. 2. Address of the association. 3. Objects of the association, including the identity of the community. 4. Land or property to be owned by the association, if known. 5. Qualifications for membership of the association, including a list of the names and, where readily available, identity numbers of the intended members of the association: Provided that where it is not reasonably possible to provide the names of all the intended members concerned, the constitution shall contain-
6. Classes of membership (if any) and the rights of members of different classes. 7. The rights of members to the use of the association's property. 8. Whether membership is based on individuals or families; if based on families, how the family is to be represented in the decision-making process of the association. 9. The grounds and procedure for terminating membership, and what happens to the rights and property of the member concerned. 10. The property: The purposes for which it may be used, and the physical division and allocation of the property. 11. Whether members may sell their rights and, if so, to whom. 12. What happens to a member's rights on his or her death. 13. How the committee is to be elected, its terms of office, its powers, the powers of members in relation to decisions made by the committee, the power of members to remove the committee or members of the committee, and payment (if any) of the committee members. 14. How and when the Annual General Meeting is to be called, the quorum or other measure of representativity at an Annual General Meeting, and procedure at an Annual General Meeting. 15. General Meetings: How and when General Meetings are to be called, the quorum or other measure of representativity at a General Meeting, and procedure at a General Meeting. 16. The powers of the association, and any limitations on them. 17. Who is responsible for keeping minutes of meetings, and access to the minutes by members. 18. Financial matters: How the money of the association will be dealt with, who will have the right to make payments on behalf of the association, how and by whom the financial records will be kept, what provision there will be for independent verificationof the financial records, distribution and division of profits, responsibility and apportionment of working expenditure, and access to financial information by members. 19. How the constitution may be changed. 20. How the association may be dissolved, and in that event what will happen to the assets of the association. 21. Disciplinary matters, and in particular how corruption, nepotism and offences referred to in section 14 of the Act are to be dealt with. 22. How disputes in the association are to be resolved. |