Constitution
AMENDED CONSTITUTION OF PACE
(ASSOCIATION INCORPORATED UNDER SECTION 21)
REGISTRATION NUMBER: 2005/012777/08
1. BACKGROUND
PACE is a South African non-profit organisation founded in may 2004 to raise awareness and offer support to individuals and families with medical conditions that are or may be associated with sudden cardiac death.
2. RECORDAL
The name of the Association is: PACE – Prevent Arrhythmic Cardiac Events (hereafter referred to as the “Association’).
3. OBJECTIVES
a. The Association is a public, non-profit organisation established for the following objectives:
i. ADVOCACY: to raise awareness of Cardiac Arrhythmic Risk and risk of
Sudden Death in otherwise healthy, often young, individuals.
ii. To offer SUPPORT to those affected: through a network of families and
other interested parties.
iii. To promote evidence-based pre-symptomatic SCREENING for heart
disease to prevent arrhythmic cardiac events or sudden death.
iv. To stimulate RESEARCH into the epidemiology, mechanisms, treatment
and prevention of conditions associated with arrhythmic cardiac events
or risk of sudden death.
v. FUNDRAISING initiatives: to effectively achieve all of the above.
b. No activity will directly or indirectly promote the economic self-interest of any fiduciary or employee of the Association otherwise than by way of reasonable remuneration.
c. At least 85% of such public benefit activity(s), measured either in cost or time spent, are carried out for the benefit of persons in the Republic.
4. LEGAL STATUS
The Association is a body corporate with its own legal identity which is separate from its individual members. The Association shall continue to exist even if the members change. The Association may own property, enter into contracts, and sue or be sued in its own name.
5. DONATIONS AND NON-PROFIT DISTRIBUTING CHARACTER
a. No donation will be accepted which is revocable at the instance of the donor for reasons other than a material failure to conform to the designated purposes and conditions of such donation, including any misrepresentation with regard to the tax deductibility thereof in terms of section 18A: Provided that a donor (other than a donor which is an approved public benefit organisation or an institution, board or body which is exempt from tax in terms of section 10(1)(cA)(i), which has as its sole principal object the carrying on of any public benefit activity) may not impose any conditions which could enable such donor or any connected person in relation to such donor to derive some direct or indirect benefit from the application of such donation.
b. The Association shall distribute (or incur an obligation to so distribute) seventy five per cent (75%) of the funds received by the Association by way of donations which qualify for a deduction, within twelve months from the financial year end during which such donations were received.
c. The income and property of the Association shall be used solely for the promotion of its stated objectives or shall be invested with a financial institution as defined in section 1 of the Financial Services Board Act, 1990 (Act No. 97 of 1990) or in securities listed on a stock exchange as defined in the Stock Exchanges Control Act, 1985 (Act No. 1 of 1985).
d. The members and the office-bearers shall have no rights to the property or other assets of the Association solely by virtue of them being members or office-bearers. No portion of the income or property of the Association shall be paid or distributed directly or indirectly to any person (otherwise than in the ordinary course of undertaking any public benefit activity) or to any member of the Association or Executive Committee, except as:
i. reasonable compensation for services actually rendered to the
Association;
ii. reimbursement of actual costs or expenses reasonably incurred on
behalf of the Association;
iii. reasonable remuneration, having regard to what is generally
considered reasonable in the sector and in relation to the service rendered
and provided that such remuneration has not and will not economically
benefit any person in a manner which is not consistent with its objects.
6. POWERS
The Association, acting through its Executive Committee (“EXCO”), or at General Meeting, shall have all the powers necessary for it to carry out is stated objectives effectively and as set out in the Association’s Memorandum of Association. Such powers shall include, but not be limited to, the General Investment and Administrative Powers set out in the attached Schedule A.
7. FIDUCIARY RESPONSIBILITY
At least three (3) persons who accept fiduciary responsibility for the Association, will not be connected persons in relation to each other, and no single person directly or indirectly shall control the decision making powers relating to the Association.
8. MEMBERS
a. The initial membership shall be those persons whose names and signatures appear on the attached Schedule B.
b. Membership shall be open to:
i. Individuals with cardiac conditions;
ii. Families of such above-mentioned individuals;
iii. Medical practitioners dealing with such individuals or families;
iv. All interested parties keen to promote the cause of PACE.
c. EXCO may admit further members from time to time on written application, directed to EXCO and subject to due compliance with any conditions of membership which EXCO may stipulate from time to time, including the payment of any membership fees as may be agreed upon by the members in General Meeting from time to time and provided that in the event that the application for membership being refused the membership fee shall be refunded to the applicant.
d. EXCO may suspend or terminate the membership of any member provided that:
i. At least fourteen (14) days prior written notice is given to all members of EXCO of the intention to terminate a membership; and
ii. At least fourteen (14) days prior written notice is given to the member concerned. The notice shall invite the member to make written or verbal representations to the meeting as the member may consider appropriate.
iii. The decision of EXCO to admit an application to membership, or to suspend or terminate a membership shall lapse unless confirmed by a resolution of two thirds of the members of the Association present at the next General Meting.
iv. If a member has withdrawn or ceased to be a member, such member may be reinstated provided all his/her obligations to the Association have been met, subject to 0 hereunder.
v. No member who has been expelled should be readmitted without prior approval of the members in General Meeting;
vi. Neither EXCO nor the Association shall be required to give reasons for their decisions with respect to membership.
9. STRUCTURE OF THE ASSOCIATION
a. The number of directors of the Association shall not be less than two (2), subject to all the terms and conditions relating to directors as contained in the Articles of Association.
b. The affairs of the Association shall be controlled and managed by EXCO. Subject to the terms of this Constitution and to the resolutions of members in General meeting, EXCO may exercise all the powers of the Association.
c. In General Meeting, the Association may review, approve or amend any decision taken by EXCO but no such resolution of the Association shall invalidate any prior action taken by EXCO in accordance with the provisions of this Constitution.
d. The members of the first EXCO shall be elected at the General Meeting at which this Constitution is adopted, and shall hold office until the first Annual General Meeting after such appointment, when al of them shall resign. At the first Annual General Meeting, a new EXCO shall be elected. Thereafter, a new EXCO shall be elected at each succeeding Annual General Meeting.
e. Resigning EXCO members shall be eligible for re-election or co-option.
f. EXCO members shall be members of the Association and should, by first choice, comprise of affected individuals, family members and/or other interested parties that may include medical practitioners, but in their private capacity and not by virtue of their medical standing.
g. EXCO shall comprise at least five (5) but not more than ten (10) members, subject to clause 0 below. The membership of EXCO shall comprise:
i. the President
ii. the Vice-President
iii. the Treasurer
iv. the Executive Secretary
v. at least one (1) and up to three (3) other persons
h. EXCO may, as it considers appropriate from time to time, co-opt up to three (3) additional non-voting members who do not need to be members of the Association. One of the co-opted members shall be designated a “Medical Advisor” to ensure that this primarily laypersons’ Association is firmly rooted in established medical practice. The co-opted members shall serve for such period as EXCO considers appropriate.
i. The office of an EXCO member shall be vacated if a member:
i. resigns by furnishing the President of EXCO with a written letter of resignation; or
ii. becomes unfit and/or incapable of acting as such; or
iii. would be disqualified, in terms of the Companies Act 61 of 1973 (“the Companies Act”) or equivalent legislation in force from time to time, from acting as a director of a company; or
iv. is removed by EXCO, by resolution adopted by at least three quarters (¾) of its members in office from time to time, being not less than the required minimum as set out in 0 above. EXCO shall not be obliged to furnish reasons for its decision(s) regarding removal except to the member so removed and to the members of the Association in General Meeting.
j. Should a position on EXCO fall vacant, EXCO, by resolution adopted by at least two thirds (⅔) of its members, may (and if the vacancy reduces the number of members to less than five (5), shall) co-opt a member(s) to fill the vacancy(ies). The office of any person so co-opted as member of EXCO shall lapse unless confirmed by resolution of members at the next General Meeting.
k. EXCO shall conduct its meetings and regulate its proceedings as it finds convenient, provided that:
i. The President, or in his/her absence, the Vice-President, shall chair all meetings of EXCO which he/she attends. In the absence of the President and the Vice-President, the remaining members of EXCO shall elect a chairperson from those attending.
ii. The President shall convene a meeting of EXCO twice a year and at the written request of any two (2) members of EXCO and may convene such a meeting at any other time.
iii. The quorum necessary for the transaction of any business by EXCO shall be two thirds (⅔) of EXCO members serving at any given time.
iv. At meetings of EXCO each member shall have one (1) vote.
v. Questions arising shall be decided by a majority of votes. Should there be an equality of votes the President shall have a casting or second vote.
vi. Proper minutes shall be kept of the proceedings of EXCO and a record of the persons present at each meeting and shall be signed by the member who chairs the meeting. The minutes shall be available at all times for inspection or copying by any member of EXCO, and on two (2) days’ notice to the Executive Secretary or his/her deputy, by any member of the Association.
vii. A resolution signed by all members of EXCO shall be as valid as if passed at a duly convened meeting of EXCO.
l. EXCO may delegate any of its powers to any of its members, or to a “special purpose committee”. The member, committee, employee or agent to whom such delegation is made shall conform to any regulations and procedures that may be stipulated by EXCO from time to time.
m. EXCO may appoint a Chief Executive Officer and other officers and employees as it may consider necessary from time to time upon such terms and conditions as it may consider appropriate.
10. GENERAL MEETINGS
a. The first Annual General Meeting of the Association shall be held within a period of eighteen (18) months of the date of incorporation of the Association. Subsequent Annual General Meetings shall be held at least once in every financial year and within six (6) months of the end of each financial year of the Association, provided that not more than fifteen (15) months shall elapse between any two such General Meetings.
b. Annual General Meetings and a meeting called for the passing of a Special Resolution shall be called by not less than twenty one (21) days prior written notice to all members entitled to attend the meeting, subject to 0 below. This notice shall state the date, time and place of the meeting and in broad terms the business to be transacted at the meeting.
c. The business of an Annual General Meeting shall deal with and dispose of all aspects prescribed by the Companies Act including:
i. the presentation and adoption of the Annual Report of the President;
ii. the consideration of the Annual Financial Statements;
iii. the election of directors and members to serve on EXCO for the following year;
iv. the appointment of Auditors;
v. other matters as may be considered appropriate.
11. OTHER GENERAL MEETINGS
a. Other general Meetings of the Association shall be convened at any time by the Directors or at the written request of:
i. EXCO
ii. The lesser of one quarter (¼) or ten (10) of the members of the Association.
b. Any General Meeting other than a meeting referred to in 0 above shall be convened on not less than fourteen (14) days written notice to all members, subject to 0 below. The notice shall state the date, time and place of the meeting and in broad terms the business to be transacted at the meeting: provided that, should the Board of Directors, having been requested to give such notice, fail to give it within seven (7) days of the request, the persons requesting the meeting shall be entitled themselves to give notice of and to convene the meeting.
c. The Chairperson of the Board of Directors will be the Chairperson at all General Meetings of the Association.
12. QUORUM
a. A quorum constituting a General Meeting of the Association shall be the lesser of:
i. seven (7) members; or
ii. one quarter (¼) of the members
b. of the Association who are entitled to vote at the General Meeting and who are personally present at any such meeting.
c. If, within half an hour after the time appointed for a meeting a quorum is not present, the meeting, if convened upon requisition of members shall be dissolved; any other meeting shall stand adjourned to the same day in the next week at the same time and place, provided that should such day be a public holiday, then it shall be adjourned to the first business day following such public holiday. The notice reflecting such adjournment shall be given to the members within three (3) days from date of such adjournment as directed in the Articles of Association and in the manner provided for in this Constitution. At such reconvened General Meeting, the members then present or represented shall be deemed to constitute a quorum.
13. RESOLUTIONS AND VOTING
a. At all General Meetings, a resolution put to the vote shall be decided by means of a show of hands or by ballot. A vote by ballot shall be held only if demanded by the presiding Chairperson or not less than one third (⅓) of the persons voting in person or by proxy, subject to the terms and conditions relating to proxies as contained in the Articles of Association. The result of the vote shall be the resolution of the meeting.
b. Members in absentia (having been given notice of the agenda) shall be allowed to vote in advance on condition that their votes are sealed until the General Meeting and recorded against their names.
c. Each member present or represented at such meeting shall be entitled to one (1) vote.
d. Questions arising shall be decided by a majority of votes. Should there be an equality of votes the presiding Chairperson of the meeting shall have a casting or second vote.
14. MINUTES
Proper minutes shall be kept of the proceedings of all meetings, including Annual General meetings, General Meetings, Board Meetings and EXCO meetings and a record of the persons present at each meeting. The minutes shall be signed by the Chairperson of the meeting at which the proceeding took place or the Chairperson of the next succeeding meeting. All minutes shall be available for inspection or copying by any member on two (2) days notice to the Executive Secretary or his or her deputy.
15. POWERS
Subject to the provisions of 0 above and the general powers and duties of directors as set out in the Articles of Association, a duly convened General Meeting of the Association, at which a quorum is present, is competent to carry out all the objectives and to exercise all the powers of the Association as set out in this Constitution.
16. NOTICES
a. Notice of all meetings provided for in this Constitution, may be given to any member either by advertisement or personal delivery, or sent by either fax, e-mail or prepaid post, to the last address/number notified by each person concerned to the Association or in any other manner as may be prescribed by the Association in General Meeting.
b. The accidental omission to address any notice(s) as may be prescribed by the Association in General Meeting, to any person shall not invalidate the proceedings of any meeting.
c. If posted, notices shall be deemed to have been received seven (7) days after posting
d. A meeting of the Association shall, notwithstanding the fact that it is called by shorter notice than that specified in this Constitution be deemed to have been duly called if it is so agreed by a majority in number of the members having a right to attend and vote at the meeting, being a majority holding not less than ninety five (95%) of the total voting rights of all the members.
17. FINANCIAL MATTERS
a. EXCO shall open a bank account in the name of the Association with a registered Bank. EXCO, as authorised by the Board of Directors, shall ensure that all monies received by the Association are deposited in the abovementioned bank account as soon as possible after receipt.
b. Subject to the approval by the Board of Directors, all cheques, promissory notes and other documents requiring signature on behalf of the Association shall be signed by at least two (2) members of EXCO of which four (4) shall have signing powers.
c. The Association’s financial year end shall be the end of February each year. The Association will timeously submit the required returns for income tax together with the relevant supporting documents to the Commissioner for the South African Revenue Services.
d. The Directors shall cause such accounting records as are prescribed by section 284 of the Companies Act to be kept and may delegate such task to EXCO which will ensure that the Association keeps proper records and books of account which fairly reflect the affairs and business of the Association.
e. The accounting records shall be kept at the registered office of the Association or at such other place as the Directors think fit and shall always be open for inspection by the Directors. The Directors shall from time to time determine whether and to what extent and at what time and place and under what conditions or regulations the accounting records of the Association or any of them shall be open for inspection by members not being Directors, and no member (not being a director) shall have any right of inspecting any accounting records or documents of the Association except as conferred by the Companies Act of 1973 or authorised by the Directors or the Association in General Meeting.
f. EXCO shall, subject to the approval by the Board of Directors:
i. ensure that the Association prepares an annual narrative report describing the Association’s activities;
ii. ensure that the Association prepares an annual financial statement for each financial year to be laid before the Association in General Meeting;
iii. cause interim reports to be prepared of which a copy will be sent to every member of the Association.
g. Within two (2) months after drawing up the annual financial statements, EXCO shall ensure that the Association arranges for an accounting officer to certify that the annual financial statements are consistent with the financial records of the Association and that its accounting policies are appropriate and have been appropriately applied in the preparation of its financial statements.
h. A copy of the annual financial statements and annual narrative report shall be made available to all members as soon as possible after the close of the financial year provided that, a copy of any financial statement which are to be laid before the Association in annual general meeting shall not be less than twenty one (21) days before the date of the meeting be sent to every member of the Association provided that this clause shall not require a copy of those documents to be sent to any person of whose address the Association is not aware.
18. AMENDMENTS AND DISSOLUTION
a. The terms of this Constitution may be amended, the name of the Association may be changed and the Association may be dissolved by Special Resolution of the members present at a General Meeting called therefore, provided that proper notice of the meeting is given not less than twenty one (21) days prior to the date of the meeting and such notice state the nature of the resolution to be proposed.
b. A copy of all amendments to the Constitution, Memorandum and Articles of Association will be submitted to the Commissioner for the South Africa Revenue Services.
c. Upon its winding-up, deregistration or dissolution, the assets of the Association remaining after the satisfaction of all its liabilities will be transferred to some or other association or institution having objects similar to its main object to be determined by the members of the Association at or before the time of its dissolution or, failing such determination, by the court, provided that the aforesaid association or institution shall be a similar public benefit organisation, which has been approved in terms of section 30 of the Income Tax Act, 58 of 1962 (“the Income Tax Act”) or any institution, board or body which is exempt from the payment of income tax in terms of section 10(1)(cA)(i) of the Income Tax Act and which has as its sole or principal object the carrying on of any public benefit activity.
19. INDEMNITY
a. Subject to the provisions of any relevant statute, members of EXCO and other office bearers shall be indemnified by the Association for all acts done by them in good faith on its behalf. It shall be the duty of the Association to pay all costs and expenses that any such person incurs or becomes liable for as a result of any contract entered into, or act done by him or her, in his or her said capacity, in the discharge, in good faith, of his or her duties on behalf of the Association , provided that each member undertakes to contribute to the assets of the Association in the event of it being wound up while he is a member or within one year afterwards, for payment of the debts and liabilities of the Association contracted before he ceases to be a member and of the costs, charges and expenses of the winding-up and for adjustments of the rights of the contributories among them, an amount of Seven Rand (R7.00).
b. Subject to the provisions of any relevant statute, no member of EXCO and or other office bearer of the Association shall be liable for the acts, receipts, neglects or defaults of any other member or office bearer, or for any loss, damage or expense suffered by the Association, which occurs in the execution of the duties of his or her office, unless it arises as a result of his or her dishonesty or failure to exercise the degree of care, diligence and skill required by law.
20. DISPUTES
a. In the event of a serious disagreement between the members of Exco and/or the Association regarding the interpretation of this Constitution then any two (2) EXCO members or any five (5) members of the Association shall be entitled to declare a dispute. Such declaration shall be in writing, state the issue in dispute and be addressed to EXCO.
b. EXCO shall consider such declaration within two (2) weeks of receiving it. Should EXCO not be able to resolve the dispute to the satisfaction of the person(s) declaring it, the dispute shall be referred either to a mediator or arbitrator.
c. Should the dispute be referred to a mediator, the person(s) declaring the dispute and EXCO must agree on a suitable mediator and to the costs of such mediation. A mediator may recommend an appropriate resolution of the dispute.
d. In the absence of agreement regarding a mediator or should mediation not resolve the dispute, the dispute shall be referred to arbitration. The arbitrator shall be such suitably qualified person(s) as the person(s) declaring the dispute and EXCO may mutually agree. Alternatively, each of the parties shall be entitled to nominate one arbitrator, who shall act jointly with a third person to be nominated jointly by the respective nominees of the parties; on the basis that a majority decision of the appointed arbitrators shall be final and binding.
e. The arbitration shall be held on an informal basis, and the arbitrator shall have the power to determine the procedure to be adopted subject to principles of natural justice.
f. The arbitrator may base his/her award not only upon the applicable law but also upon the principles of equity and fairness.
The person(s) declaring the dispute and EXCO may beforehand agree to share the costs of the arbitration. In the absence of such agreement the arbitrator shall decide which party shall be liable for the costs.
The decision of the arbitrator shall be final and binding upon all parties and capable of being made an order of court on application by any of them.
SCHEDULE A
GENERAL INVESTMENT AND ADMINISTRATIVE POWERS
Without derogating from the discretionary and specific powers as set forth in the preceding Constitution, but subject to the limitations and qualifications contained therein, the Association shall have the following general investment and administrative powers referred to in clause 6 of the aforegoing Constitution -
1. to employ staff and hire professional and other services;
2. to institute or defend any legal or arbitration proceedings and to settle any claims made by or against the Association;
3. to open and operate accounts with a registered bank;
4. to accept donations made to the Association and retain them in the form in which they are received, or sell them and re-invest the proceeds;
5. with regard to movable and immovable property and tangible and intangible assets of whatsoever nature:
to purchase or acquire property and assets;
to maintain, manage, develop, exchange, lease, sell, or in any way deal with the property and assets of the Association;
to donate and transfer the property and assets of the Association to organisations with the same or similar objectives and the same exemptions from taxes and duties to those of the Association;
6. to borrow and to use the property or assets of the Association as security for borrowing;
7. to guarantee the performance of contracts or obligations of any person on condition that any such person is primarily engaged in activities which further the objectives of the Association;
8. to execute any act or deed in any deeds registry, mining titles or other public office;
9. to work in collaboration with other organisations and to amalgamate with any organisation with the same or similar objectives and the same exemptions from taxes and duties to those of the Association;
10. to exercise all the management and executive powers that are normally vested in the Board of Directors of a Company;
11. to exercise all the powers and authority of the Association not only in the Republic of South Africa but in any other part of the world.