DAINFERN MOI AND DCC CONSTITUTION WORKSHOPS

DAINFERN MOI AND DCC CONSTITUTION WORKSHOPS
Dear Members,

Please diarise 21 November 2017 at 07h30 or 23 November 2017 at 18h00 to attend one of our discussion / feedback sessions on the proposed changes to the Dainfern MOI and the DCC Constitution. The DGC constitution will be mailed directly to DGC members and the workshop will be arranged with the Golf Committee.

If you are unable to attend one of the workshops and have comments, please e-mail them to [email protected]

The turmoil in our Estate a few years back could so easily have been avoided, had the MOI and the two Club Constitutions been better drafted and more relevant documents. Hindsight is 20:20 and so we have taken the past as a learning experience and undertaken the massive exercise of reviewing and redrafting the legal documentation, something that we definitely do not want to do again in the next twenty years, so it is extremely important that we get the documents correct, this time!

The DRAFT documents are attached for you to review but before you do it is important that the documents are correctly positioned.

The MOI is a lot more advanced as it has been prepared in conjunction with Eugene Marais Attorneys and an Advocate who is currently Chair of a HOA. The proposed drafts have been circulated to members who provided input prior to the drafting exercise. Thus the document that you are reviewing is an amalgamation of both professional input from EMA and amateur input from a number of individual members.

Once we have comments from you, the members, the document, with suggested changes and additions, will be returned to EMA to prepare the FINAL DRAFT for circulation to Members and final agreement at an EGM.

The DCC and DGC documents are more of our own making, to flesh out the concepts rather than worry about the legalese as EMA will take the concepts, once agreed, and meld them into nicely worded legal documents. EMA will of course, also comment on the strategies and concepts as part of that exercise.

The objective is to have the final documents signed off at an EGM by mid-December 2017.

MOI

The approach to drafting this version is very different to the first edition approach which, from bitter experience, we all know was inadequate.

The significant differences are the following:

  1. The Companies ACT has both alterable and unalterable provisions. The first edition, without apparent rationale, included and excluded clauses from both types of provision. This led to unnecessary confusion, conflict and debate.
  1. The approach this time is to exclude reference to the unalterable provisions of the act. They are what they are.
  2. This shortens the MOI considerably.
  1. We have simplified the wording, which was in narrative form and replaced it with simple bullet points for example:
  1. This is the Main Business clause from the first edition:
  1. The main business which the Association is to carry on the business of promoting, advancing and protecting the collective and communal interests, safety and welfare of the Members of the Association including the collection of levies and payment of expenses incurred in furtherance of the main object aforesaid.
  1. Compared to the new Main Objects clause:
  2. Main Business
  1. Giving effect to the objects of the Company.
  1. We have taken out the suspension clause as it relates to the DHA and made it applicable to the DCC and DHA access only.
  1. The reasoning is that, not attending an AGM/EGM is not really an issue for most members and the suspension can be all too easily manipulated to the detriment of residents.
  2. Shareholders have specific rights and if we curtail the rights, even by agreement, it is open to challenge.
  1. Included, is a provision that the board may not take legal action, other than for debt or to enforce architectural rules, against a member, without first getting members approval, in general meeting.
  2. Provision is made for all meetings and communications to be electronic as when the Estate is being well run people tend not to attend meetings.
  1. Thus we have included electronic voting at meetings so members can relax at home or the office and participate.
  2. Quorums have been altered accordingly and minimums are set in total, not broken down into present, proxy or electronic. 10{debd3355e1fc9efe77f38dee6206ecb8f131d252e8a26859783021820517b85c} of members in any form.
  1. No provision is made for the Chairman of Golf to be ex officio a director.
  1. This loophole provided for 200 golf members to elect a director which is disproportionate.
  2. The clause was introduced when the DGC was cash flush and DHA was meddling with the money.
  1. Number of directors is reduced to six with two retiring each year.
  1. Gives better continuity.
  1. First edition was a jumble of provisions, rules and codes, included in the MOI, in addition there are more rules and regulations outside of the MOI.
  1. The approach this time is to exclude rules, codes and provisions from the MOI and manage them separately outside the MOI.
  2. For checks and balances all rules and codes including any changes/updates are referred to AGM for ratification annually.
  1. Disputes are all dealt with by arbitration.
  2. We have made no provision for an internal appeal procedure as CSOS fills the gap and rather emasculates the process.
  3. DHA and DCC are in reality one entity and as such we have provided for the DCC Trustees to be ex officio and not voted in by members.
  4. Golf is an independent entity but because they have the use of Dainfern property and are subsidised by the DHA, provision has been made for a DHA veto on any decisions of the DGC and in addition the DHA approves and manages the budget.
  1. DHA has the right to nominate a director to participate at all DGC meetings.

The Club Constitutions:

The major changes to the two constitutions are the following:

  1. Each entity stands on its own under the DHA. For the sake of clarity, the DCC has no say in the DGC.
  2. DHA has the power to veto any decisions that are not a strategic fit.
  3. Certain DHA directors are automatically members of the General Committee of the DCC along with some members of the Golf Committee and other major sporting codes.
  4. Electronic meetings and proxies are allowed.
  5. Members of the DHA, their families and their tenants are automatically members of DCC.
  1. DCC can accept non-resident members as Associate Members.
  2. DGC can also accept Associate Members who are non-resident.
  1. The DCC and DGC have no ex officio appointments to the DHA Board.
  2. The year ends, budgets and AGM’s are all “as one” as there is a single “group budget” that is approved by DHA members.

There are contentious issues and loose ends to tie up but it is important for us to get initial feedback before handing the proposed documents back to EMA for finalisation!

Our interests are your interests, so please support this initiative!

DAINFERN MOI Members DRAFT 28 October 2017 (4)

DCC CONSTITUTION Members DRAFT 28 October 2017 (1)



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