(Alienation of Land Act, 1981)
Entered into by and between
ZIMBALI RESORT DEVELOPMENTS JOINT VENTURE PARTNERSHIP
Comprising of the parties set out in paragraph 1 of the Covering Schedule (The Seller)
The party/ies whose details are set out in paragraph 2 of the Covering Schedule (the Purchaser)
The Ridge, Zimbali Lakes – Single Residential Site Sale
Portion Numbers 445 of Remainder Xxx 0, Xxxxxxx Xxxxx
Zimbali Resort Developments Joint Venture Partnership, between Zimbali Land Developments (Pty) Ltd (Reg. No: 1996/016290/07) and Zimbali Hotels & Resorts South Africa (Pty) Ltd (Reg. No: 2003/023856/07)
Zimbali Northgate Suites, Zimbali Coastal Resort, KwaZulu-Natal, South Africa
Purchaser: Insert full name at right
Identity Number / Registration Number
Telephone Number (Home)
Telephone Number (Business)
Cellular Telephone Number
Marital Status (If an individual)
Portions 445 of Remainder Erf 1 Zimbali Lakes , Registration Division FU, Province of Kwa -Zulu Natal, identified in red on the proposed plan of subdivision (Annexure B), approximately 1076 m2 in extent.
PURCHASE PRICE OF THE PROPERTY
Purchase Price (inclusive of VAT) for both properties
First instalment of 25% payable within 7 (seven) days after signature by the Seller
Balance of Purchase Price to be paid in instalments (see 4.2 below):
7% of the purchase price, plus VAT, payable simultaneously with, but in addition to, the First Instalment referenced in 3.2 above.
ESTIMATED TRANSFER DATE
On payment of the full purchase price
ANNUAL RATES AND SERVICES
to be levied by the Local Authority
Name xx Attorneys:
Tim du Toit & Cx. Xxx. Xxxx: Angela Xxxxxxx
Xxx: x00 (0) 21 529 0000 X-xxxx: Xxxxxx.Xxxxxxx@XimduToit.co.za
Zimbali Estates Proprietary Limited
5% (Five Percent) plus VAT, included in Purchase Price
OFFER TO PURCHASE
1.1 The SELLER is the registered owner of the land known xx Xxxxxxxxx xx Xxf 1 Zimbali Lakes (“the land”).
1.2 The SELLER intends to develop Zimbali Lakes Resort on the land, comprising of single residential sites, planned unit development sites, sectional title units, a retirement village, hotels, clubhouses, sports and leisure facilities, private open spaces, private and publicroads.
1.3 The PURCHASER has offered to purchase the PROPERTY described in the Covering Schedule subject to the fulfilment of the conditions precedent recorded in this Agreement and by paying the PURCHASE PRICE in monthly instalments as recorded herein below, and the SELLER shall by his signature hereto accept such offer.
2.1 Subject to and in accordance with the provisions hereof and the CONDITIONS OF SALE annexed hereto as Annexure A, the SELLER sells and the PURCHASER purchases the PROPERTY.
2.2 The PURCHASER agrees that the precise area, boundaries and final description of the PROPERTY shall be as shown on the general plan as finally determined, approved and numbered by the Surveyor-General and/or the relevant competent authorities and shall be binding upon the parties, provided always that location and the area of the PROPERTY shall be reasonably similar to its depiction on the proposed plan of sub-division attached as Annexure B.
3 OWNERSHIP OF THE PROPERTY AND MORTGAGE BONDS
3.1 The PROPERTY will not be ‘registrable’ (as defined in the Alienation of Land Act, 1981) as at the date of signature to this agreement, and will thus not be capable of immediate transfer. The PURCHASER acknowledges that:
3.1.1 the PROPERTY forms part of the greater ZIMBALI LAKES RESORT development;
3.1.2 the development is taking place on xxx Xxxxxxxxx xx Xxx 1, Zimbali Lakes, and has yet to be sub-divided xxxx individual erven;
3.1.3 the PROPERTY will be sub-divided and capable of transfer once bulk engineering and infrastructure services has been completed to the PROPERTY’s proposed boundary and the local authority issues the requisite clearance certificate authorizing transfer.
3.2 The SELLER is the registered owner of the entxxx Xxxxxxxxx xx Xxx 1, Zimbali Lakes, which includes the PROPERTY.
3.3 There is one development finance mortgage bond registered over xxx Xxxxxxxxx xx Xxx 1, Zimbali Lakes, being B1120/2018 in favour of Nedbank Limited in an amount of R45 million (Forty Five Million Rand). The settlement amount required by Nedbank Limited for the PROPERTY to be released from the operation of the said mortgage bond is recorded in the settlement letter attached hereto. Such settlement amount shall at no time during the currency of this agreement exceed the balance of the PURCHASE PRICE owing by the PURCHASER from time to time.
4 PAYMENT: INSTALMENT SALE
4.1 The amount referred to in 3.2 of the Covering Schedule shall be paid to the SELLER within 7 (seven) days from date of acceptance by the SELLER. Such payment shall constitute the first instalment payable in terms of this instalment sale agreement. On signature by the SELLER, this Agreement shall be enforceable in accordance with its terms.
4.2 The balance of the PURCHASE PRICE referred to in 3.3 of the Covering Schedule shall be paid in monthly instalments, as follows:
MONTHLY INSTALMENT AMOUNT
INSTALMENT DATE 1st or 15th of the month, as preferred
FINAL INSTALMENT DATE
30 April 2025
NUMBER OF MONTHS
4.3 Payment shall take place directly into the SELLER’s bank account on the Instalment Date and subsequent instalments shall be paid on the same day of each and every succeeding month until the PURCHASE PRICE shall have been paid in full.
4.4 The SELLER’s bank account details are as follows: Zimbali Resort Developments Joint Venture Nedbank Current Account
Branch code: 198765
Account number: 115 904 2357
4.5 All instalments due by the PURCHASER to the SELLER in terms of the agreement shall be paid into the SELLER’s bank account, as detailed above, without deduction or demand or at such other place as the SELLER may from time to time by written notice appoint.
4.6 The SELLER shall levy no interest, fee or charge of any nature whatsoever in respect of the balance of the PURCHASE PRICE payable by the PURCHASER in
instalments. As such, it is expressly recorded that the National Credit Act, 2005, shall not apply to this instalment sale agreement.
4.7 The PURCHASER shall at all times be entitled to make a payment before the date on which it is due in terms of this agreement or to make larger payments than the payments for which this Agreement provides or, when the PROPERTY becomes registrable, the PURCHASER may tender payment of all amounts owing in terms of this agreement as at that date and claim transfer of the PROPERTY against payment of such amounts.
4.8 Notwithstanding anything to the contrary contained herein, all amounts owing under and in terms of this agreement shall be paid to the SELLER by not later than
the Final Instalment Date recorded above. The PURCHASER shall be entitled and obliged to take transfer of the PROPERTY against the payment of such final amounts.
4.9 All payments are to be made in South African currency free of bank charges and other expenses.
4.10 The PURCHASER shall not have the right to defer or withhold payment of any amounts due and payable in terms of this agreement.
4.11 It is recorded that the sale is subject to value-added tax at the standard rate of 15%, and that such value-added tax is included in the purchase price. The parties agree that, should there be any change in the rate, Value Added Tax applicable at the time of supply, as determined in accordance with the Value Added Tax Act No 89 of 1991, that the Purchase Price shall be amended to take into account the adjustment in the Value Added Tax rate.
4.12 Should the PURCHASER apply for and obtain mortgage finance for the balance of the Purchase Price outstanding at any time during the currency of this agreement, as anticipated in 3.3.1 of the Schedule, the instalment sale component of this agreement may be terminated by written agreement between the parties, but only against receipt by the CONVEYANCERS of the requisite bank guarantee to secure the balance of the Purchase Price payable on registration of transfer.
5 RECORDING OF THIS AGREEMENT
5.1 The PURCHASER is entitled to have this agreement recorded against the title deed of the PROPERTY in terms of Section 20 of the Alienation of Land Act once the PROPERTY becomes registrable. The SELLER and PURCHASER jointly undertake to instruct the CONVEYANCERS to attend to the recording of this agreement within 90 (ninety) days after the PROPERTY becomes registrable, and will sign the documents necessary to procure the recording.
5.2 It is expressly recorded that the SELLER may in future elect to obtain additional development finance to complete Zimbali Lakes Resort, which may include
further encumbering the PROPERTY by an additional Mortgage Bond on or before the Date of Recording. The SELLER undertakes that any such development or mortgage finance SHALL NOT affect or increase the settlement amount recorded in the settlement letter attached hereto, payment of which will be required by Nedbank Limited or any other financier for the PROPERTY to be released from the operation of any mortgage bond/s registered over the PROPERTY.
5.3 To facilitate compliance with FICA, the parties undertake forthwith to supply the CONVEYANCERS with copies of any and all documents required by them within 7 (seven) days of written demand therefor.
6 RIGHTS OF THE PURCHASER
In addition to the other rights of the PURCHASER which are recorded in this agreement, it is acknowledged that:
6.1 The PURCHASER is entitled to choose the official language in which this agreement is to be drawn up. The PURCHASER confirms having chosen English.
6.2 The PURCHASER is entitled to perform the obligations of the owner of the PROPERTY in terms of Section 11 of the Alienation of Land Act.
6.3 The PURCHASER is entitled to receive a free copy of this agreement within 30 (thirty) days from the Date of Signature.
6.4 As the PROPERTY is encumbered by a mortgage bond, the PURCHASER is entitled to receive from the SELLER, within 30 (thirty) days from the Date of Signature, a Certificate by the mortgagee drawn in accordance with the provisions of Section 7 of the Alienation of Land Act. The PURCHASER acknowledges having received the Certificate by virtue of the settlement letter attached hereto, as envisaged by clause 3.3 above.
6.5 The PURCHASER may at any time and on payment of the prescribed fee require a mortgagee to furnish the PURCHASER with a certificate in terms of section 9(3) of the Alienation of Land Act, which records the amount of the SELLER's indebtedness to the mortgagee. The parties record that this provision does not apply in this instance, as the release amount recorded in the attached settlement letter shall not be amended or changed at any time during the currency of this agreement.
6.6 In terms of Section 9 of the Alienation of Land Act and at the PURCHASER’s cost, the PURCHASER shall forthwith notify the mortgagee of the conclusion of this agreement, of the Purchaser's domicilium address and such other particulars as the mortgagee reasonably may require.
7 ACKNOWLEDGEMENT BY PURCHASER
The PURCHASER acknowledges that he/she:
7.1 understands the risks and the costs as well as the PURCHASER’s rights and obligations under this Agreement;
7.2 records that entering into this Agreement will not cause the PURCHASER to become over-indebted as contemplated in the National Credit Act;
7.3 fully and truthfully answered all requests for information made to the PURCHASER by or on behalf of the SELLER which led to the conclusion of this Agreement;
7.4 has the necessary legal capacity to enter into this Agreement and that he/she is not subject to an administration order in terms of Section 74 of the Magistrates’ Courts Act, nor has he/she been sequestrated as insolvent;
7.5 did not receive an offer from the SELLER which automatically results in an agreement if the PURCHASER does not decline the offer;
7.6 was not induced, harassed or forced to enter into this Agreement;
7.7 has not been required or induced to enter into any supplementary agreements to this Agreement;
7.8 records that this Agreement was completed in full, with specific reference to the Schedule and 4.2 above, at the time the PURCHASER signed it;
7.9 is aware that, when this Agreement takes effect, the SELLER must report the relevant details hereof required in terms of section 69(2) of the National Credit Act to the National Credit Register or a registered credit bureau.
8 RIGHT OF TERMINATION BY THE PURCHASER
8.1 Notwithstanding anything to the contrary contained herein, the PURCHASER shall have the right, in terms of Section 29A of the Alienation of Land Act, to terminate this Agreement by written notice delivered to the SELLER within five (5) Business Days of the Date of Signature.
8.2 The notice will be effective only if it:
8.2.1 Is signed by the PURCHASER or the PURCHASER’s agent acting on the PURCHASER’s written authority;
8.2.2 Identifies this Agreement as the agreement to be revoked;
8.2.3 Is unconditional; and
8.2.4 Contains a tender to return the Property to the SELLER, if possession has been transferred.
8.3 Should the Agreement be terminated pursuant to sub-clause 8.1 above, the following provisions shall apply:
8.3.1 Any amount paid or deposited by the PURCHASER shall be refunded to the PURCHASER within seven (7) business days.
8.3.2 The PURCHASER shall be obliged to pay to the SELLER:
22.214.171.124 the reasonable cost of returning the Property to the SELLER, if applicable;
126.96.36.199 a reasonable rental for the occupation of the Property for the time that the PURCHASER was in occupation thereof, if applicable.
8.4 No penalty or cancellation fee shall be payable by either party to the other.
9 CREDIT BUREAUX
9.1 The PURCHASER confirms that the SELLER may transmit to registered credit bureaux information concerning this Agreement and any non-compliance by the PURCHASER with the terms of this Agreement.
9.2 The PURCHASER acknowledges that a credit bureau will provide the SELLER with a credit profile and possibly a credit score on the creditworthiness of the PURCHASER. The PURCHASER has the right to contact the credit bureau to have the credit records disclosed and to correct any inaccurate information.
10 STATEMENTS OF ACCOUNT
10.1 The SELLER is obliged, free of charge, not later than six (6) months from the Date of Signature and thereafter within thirty (30) days of the end of each successive period of six (6) months following the date of the first statement of account, to send to the PURCHASER at the PURCHASER’s domicilium address, a statement of account drawn in accordance with the provisions of Section 16 of the Alienation of Land Act. Such statement shall record all payments received from the PURCHASER, the dates of such receipt and record the amount outstanding in respect of this Agreement.
11.1 After the Date of Recording and when the PURCHASER is in a position to pay the balance of the Purchase Price and take transfer of the Property (which shall not be later than the Final Instalment Date), the parties shall instruct the Conveyancers to attend to the transfer of the Property. The parties undertake to sign the transfer documents when called upon to do so.
11.2 The PURCHASER acknowledges that:
11.2.1 The Property is not the subject of a separate title deed;
11.2.2 The latest date at which the Property shall be registrable in the name of the PURCHASER is 30 April 2025 being a date not later than five (5) years from the Date of Signature;
11.2.3 If the Property is not registrable by the date referred to in sub-clause 11.2.2 above, the PURCHASER will be entitled to cancel this Agreement and in such event, the provisions of Section 28(1) of the Alienation of Land Act shall apply as set out in clause 13 below;
11.2.4 The PURCHASER shall not be entitled to transfer of the Property unless the Property has become registrable, the Purchase Price has been paid in full and/or secured to the satisfaction of the SELLER and all transfer and bond costs, if any, have been paid.
11.3 If the PURCHASER has paid not less than 50% of the Purchase Price and if the Property is registrable, the PURCHASER shall be entitled to demand from the SELLER transfer of the Property on condition that simultaneously with the registration of transfer there is registered in favour of the SELLER a first Mortgage Bond over the Property to secure the balance of the Purchase Price. The conditions as to the redemption as well as other conditions of the Mortgage Bond shall not be more onerous than the conditions in this Agreement. Failure by the SELLER to tender transfer of the Property within three (3) months from the date of the demand by the PURCHASER will entitle the PURCHASER to cancel the purchase of the Property and invoke the provisions of section 28 of the Alienation of Land Act.
12 MORTGAGE FINANCE FOR THE PURCHASER
12.1 If the PURCHASER, or the SELLER on behalf of the PURCHASER, at any time arranges Mortgage Finance for the PUCHASER, the PURCHASER shall;
12.1.1 Within fourteen (14) days after the PURCHASER has been requested by written notice sent to the address chosen as the PURCHASER’s domicilium address, complete a loan application form and provide all necessary information required by the intended Mortgagee for purposes of the loan and furnish the SELLER with the completed loan application and information; and
12.1.2 Should the mortgage loan for the balance of the Purchase Price be granted, forthwith sign all documents to facilitate the simultaneous registration of the Mortgage Bond with the transfer of the Property.
12.2 The loan shall provide for payment of all amounts owed by the PURCHASER to the SELLER in terms of this Agreement as well as the costs of transfer and the costs of registration of the Mortgage Bond. The loan shall, as to the rate of interest and redemption, not be more onerous than the terms which at the time of transfer apply in respect of a loan secured by a first Mortgage Bond over Property granted by a registered bank for the amount in question and on the security of the same kind or class of Property.
12.3 If the PURCHASER fails to comply with the provisions of this clause 12, the SELLER shall be entitled to cancel this sale and the provisions of Section 28(1) of the Alienation of Land Act, as set out in clause 13 shall apply.
13 SECTION 28 OF THE ALIENATION OF LAND ACT
13.1 If either party elects to invoke the provisions of Section 28 of the Alienation of Land Act, then:
13.1.1 Each party shall be entitled to recover from the other that which the party has performed under the Agreement;
13.1.2 The PURCHASER may recover from the SELLER:
188.8.131.52 interest at the prescribed rate on any payment that the PURCHASER has made in terms of the Agreement from the date of payment to the date of recovery; and either
184.108.40.206.1 reasonable compensation for necessary expenditure the PURCHASER has incurred, with or without the SELLER's authority, in regard to the preservation of the
Property or any improvement thereon; or
220.127.116.11.2 reasonable compensation for any improvement effected by the PURCHASER with or without the SELLER's express or implied consent which enhances the market value of the Property.
13.1.3 The SELLER may recover from the PURCHASER:
18.104.22.168 reasonable compensation for the PURCHASER's occupation, use or enjoyment of the Property, if applicable; and
22.214.171.124 compensation for any damage caused intentionally or negligently to the Property by the PURCHASER or any person for the actions of whom the PURCHASER may be liable, as well as compensation for damages sustained by the SELLER as a result of the Property having been removed from the market for the duration that this Agreement endured.
14.1 Should the PURCHASER:
14.1.1 breach any of the terms and conditions of this Agreement, including any annexures hereto; or
14.1.2 compromise or attempt to compromise with any of the PURCHASER's creditors; or
14.1.3 be sequestrated or voluntarily surrender the PURCHASER’s estate,
then the PURCHASER will be in default of the PURCHASER’s obligations under this Agreement and all amounts owing under this Agreement shall, after thirty (30) days of delivery of the notice referred to in clause 14.2 and without any further action by either party, forthwith be due, owing and payable.
14.2 If the PURCHASER is in default, the SELLER must give the PURCHASER written notice (by hand delivery or by registered post) of such default.
14.3.1 the Seller has given the PURCHASER notice referred to in clause 14.2 above or the SELLER has given notice to terminate any debt review process under Section 86 of the National Credit Act which may then be under way in respect of this Agreement; and
14.3.2 the PURCHASER has been in default under this Agreement for at least 20 (twenty) business days; and
14.3.3 at least 10 (ten) business days have elapsed since the SELLER delivered the notice contemplated in clause 14.2 above; and
14.3.4 in the case of a notice in terms of clause 14.2 above, and the PURCHASER has not responded to that notice; then the Seller may commence legal proceedings to:
14.4.1 enforce this Agreement and recover legal costs and default administration charges from the PURCHASER; or
14.4.2 cancel this sale; and
14.4.3 institute action for damages.
14.5 If the SELLER in the same calendar year has handed to or sent to the PURCHASER two notices at intervals of more than thirty days, the SELLER may in any subsequent notice handed or sent to the PURCHASER in that calendar year, make demand on the PURCHASER to carry out the PURCHASER's obligations within a period of not less than seven days calculated from the date on which the notice was handed or sent to the PURCHASER.
14.6 Should the SELLER cancel this sale as aforesaid, the SELLER shall be entitled to retake possession and occupation of the Property and in addition the Seller shall be entitled either:–
14.6.1 to declare all moneys paid by the PURCHASER to the SELLER, to be forfeited to the SELLER and to recover all arrear instalments and other amounts due but unpaid at the date of cancellation. The PURCHASER, in such event hereby authorises the Conveyancers holding such moneys in trust, if any, to pay the moneys to the SELLER; or
14.6.2 to claim damages the SELLER may have suffered (subject to section 12 of the Alienation of Land Act) and to this end to re-sell the Property either by public auction or by private treaty in which event the SELLER shall be entitled to retain all payments made on account of the purchase price by the PURCHASER (and/or to receive all moneys, including interest, being held in trust on account of the purchase price, the Purchaser hereby authorising the Conveyancers to make payment of such moneys to the SELLER, and to retain such moneys, if any) until such time as the SELLER's damages have been ascertained, whereupon the aforesaid payments made by the PURCHASER shall be set off against the damages.
15 THE OWNERS ASSOCIATIONS EXPLANATORY
15.1 The PROPERTY falls within the jurisdiction of The Ridge, Zimbali Lakes Owners Association (“the Association”) to whom a levy is payable as contemplated in the Constitution of the Association.
15.2 The PROPERTY and the Association falls under the jurisdiction of the Zimbali Lakes Resort Management Association (i.e. ZLR). The Association shall be obliged to pay to ZLR a monthly levy determined in accordance with the ZLR Constitution. ZLR shall be responsible for and shall maintain various common areas of the Resort such as conservation matters, the water body, all roads, gatehouses, water and electricity infrastructure and the security fence together with any other functions ascribed to it in the ZLR Constitution.
15.3 In addition to the above levy the ZLR shall be paid the Lakes Stabilisation Levy as provided for in the ZLR Constitution, excluding any sales by the SELLER, DEVELOPER or its related/associated/subsidiary Companies.
15.4 ZLR shall have as its principal members Boulevard, Zimbali Lakes Management Association, Ocean Club Zimbali Owners Association, the Association, Beach Club, Zimbali Lakes Management Association, Water Club, Zimbali Lakes Management Association, The Village, Zimbali Lakes Management Association, the Zimbali Facilities Management Company, Zimbali Sports Club, the DEVELOPER and such other members as referred to in the ZLR Constitution. Each member of ZLR shall have one (1) representative at general meetings of the ZLR. The DEVELOPER may admit other Members comprising various nodes or facilities created within the ZLR.
15.5 The above is intended merely as a general description of the rights and obligations of a member of the ZLR, the details of which are more fully dealt with in the ZLR constitution and the Constitution of the Association, both of which are available to the PURCHASER on the Zimbali Lakes Resort website, and on a mobile storage device if requested. If there is any conflict between the provisions above and the terms of the ZLR Constitution, the latter shall prevail and the PURCHASER shall have no claim against the SELLER arising out of such conflict.
16 MEMBERSHIP OF ASSOCIATION / TITLE CONDITIONS
This sale will be subject to the following conditions, which will be strictly imposed and enforced by the SELLER, during the Development Period, and by the ZLR and the Association thereafter:
16.1 From DATE OF TRANSFER and for the duration of the PURCHASER’s ownership of the PROPERTY, the PURCHASER will be a member of the Association and be expressly subject to the provisions of the ZLR Constitution, the Governing Rules issued by the ZLR from time to time, the Resort Guides, the Constitution of the Association and all Conduct Rules, if any, issued by the Association.
16.2 A condition will be registered against the title deed to the PROPERTY to the effect that the PROPERTY or any portion thereof or interest therein shall not be alienated, leased or transferred without the written consent of the Association first being had and obtained (it being recorded that the Association shall be entitled, at its absolute discretion, to refuse its written consent in the form of a Levy Clearance Certificate until such time as the provisions of its Constitution and the Conduct Rules, if any, are complied with, which will include, inter alia, the payment or securing of any outstanding levies);
16.3 A condition will be registered against the title deed to the PROPERTY to the effect that the PROPERTY or any portion thereof or interest therein shall not be alienated, leased or transferred without the written consent of the ZLR first being had and obtained (it being recorded that the ZLR shall be entitled, at its absolute discretion, to refuse its written consent in the form of a Clearance Certificate until such time as the provisions of its Constitution and Governing Rules are complied with, which will include, inter alia, the securing of the Lakes Stabilisation Levy);
16.4 In order to protect all the DEVELOPER’S rights under this agreement a condition will be registered against the title deed to the PROPERTY to the effect that the PROPERTY or any portion thereof or interest therein shall during the Development Period not be alienated, leased or transferred without the written consent of the DEVELOPER first being had and obtained (it being recorded that the DEVELOPER shall be entitled, at its absolute discretion, to refuse its written consent on reasonable grounds);
16.5 A condition will similarly be registered against the title deed to the PROPERTY to the effect that every Transferee of the PROPERTY shall become at least a silver member of the ZSC on the DATE OFTRANSFER.
17 TRANSFER PRIOR TO INSTALLATION OF BULK SERVICES
17.1 The SELLER will be entitled, at its election, to transfer the PROPERTY to the PURCHASER without the prior installation of bulk / reticulation engineering services infrastructure, provided that:
17.1.1 The PROPERTY shall be clearly and finally delineated on a general plan registered by the office of the Surveyor-General at the Pietermaritzburg Deeds Registry; and
17.1.2 The SELLER shall present the PURCHASER with written confirmation from the project engineer, confirming the available bulk;
17.1.3 The SELLER shall remain responsible for the installation of bulk / reticulation engineering services to serve the Property within a reasonable period of time following the DATE OF TRANSFER; and
17.1.4 The transfer of the PROPERTY to the PURCHASER shall not be inconsistent with the development plan approved for the Resort by the Local Authority.
17.2 The PURCHASER by his signature to this CONTRACT OF SALE hereby records his acknowledgement, and understanding of the implications, of the lack of services infrastructure on the PROPERTY as at the Signature Date and proclaims his willingness to accept transfer of the PROPERTY in the temporary absence of such bulk / reticulation engineering services infrastructure.
17.3 The PURCHASER shall not be entitled to object to the transfer to him of the PROPERTY in circumstances where the SELLER has met and adhered to the prescripts and requirement recorded in 17.1.1 to 17.1.4 above.
18 ADMINISTRATION FEES / COMMISSION
18.1 On signature by the SELLER, this Agreement shall be unconditional and enforceable in accordance with its terms.
18.2 Provided that the first instalment referenced in clause 3.2 of the Schedule shall have been received by the SELLER, the Agency referenced in clause 9 of the Schedule shall be entitled to raise an invoice against the SELLER for payment of its commission at a rate of 5% of the Purchase Price, plus VAT.
18.3 The PURCHASER, by his signature to this Agreement, expressly authorises the SELLER to advance the commission due to the Agency from the First Instalment paid. The PURCHASER expressly waives any claim in relation to the commission thus paid to the Agency.
18.4 The PURCHASER shall moreover be obliged to pay Auctioneer’s commission equal to 7% of the Purchase Price, plus VAT, simultaneously with, and in addition to, the First Instalment payable in terms hereof.
18.5 In the event that the SELLER fails to proceed with the development of THE RIDGE, ZIMBALI LAKES for any reason whatsoever, the SELLER will be obliged to reimburse the entire aggregate of all instalments paid by the PURCHASER, including specifically the amounts paid to the Agency and Auctioneer in respect of commission as recorded in 18.2, 18.3 and 18.4 above.
19 RIGHT TO CANCELLATION: DIRECTMARKETING
19.1 Pursuant to the provisions of Section 16 of the Consumer Protection Act, should this Agreement be the result of direct marketing efforts by the SELLER or his agents, the PURCHASER has the right, within 5 (Five) business days after concluding this Agreement or 5 (Five) business days after delivery to him of the PROPERTY, as the case might be, to cancel this Agreement without reason or penalty by written notice to the SELLER.
19.2 The SELLER is unable to accept the risk of such cancellation without reason or penalty, as it could have sold the PROPERTY to another prospective PURCHASER during the period betweenthe conclusion of the Agreement andthe cancellationthereof. In addition, cancellation after delivery of the PROPERTY will result in the SELLER having to carry the holding cost of the PROPERTY for an undetermined period whilst marketing same to new PURCHASERS. This has the potential to result in significant losses for the SELLER.
19.3 In the premises, the SELLER is not prepared to enter into any Agreement with any PURCHASER that might have been the result of direct marketing.
19.4 The PURCHASER accordingly warrants that this transaction has not resulted from direct marketing and the SELLER enters into this Agreement relying entirely on such warranty.
19.5 Should the PURCHASER be successful, pursuant to the direct marketing provisions of the Consumer Protection Act, in cancelling this Agreement after delivery of the PROPERTY, the PURCHASER shall be liable for the damages suffered by the SELLER as a result of the breach of such warranty.
20 CONSUMER PROTECTION ACT
After due consideration, and by his signature hereto, the PURCHASER or his representative, as the case might be, hereby acknowledge and record that:-
20.1 he has entered into this Agreement freely and of his own accord and that no circumstance exists that would entitle him to allege, now or in future, that he was at a disadvantage or unequal bargaining position to the SELLER in negotiating and concluding the terms and conditions contained in this Agreement;
20.2 he has done his own investigations with respect to whether or not to enter into this Agreement and that he has done so without any undue influence, pressure, duress, harassment or unfair tactics from the SELLER and that he understands the content, significance and import of the terms of this Agreement without undue effort, having regard to the context, comprehensiveness and consistency of the Agreement, the organisation, form and style of the Agreement, the vocabulary, use of language and sentence structure of the Agreement and the use of illustrations, headings, examples or other aids to reading and understanding the Agreement.
20.3 If the PURCHASER is a Juristic Person, it hereby warrants to the SELLER that its asset value or annual turnover at the Date of Signature and the DATE OF TRANSFER shall equal or exceed the threshold determined by the Minister in terms of Section 6 of the CPA (namely, R2,000,000.00 (Two Million Rand)) and, as a consequence, the sale of the PROPERTY to the PURCHASER in terms of this Agreement, is exempt from the provisions of the CPA (save for the provisions of Sections 60 and 61 of the CPA).
20.4 It is recorded that the aforesaid warranty is material to the SELLER in entering into this Agreement.
20.5 The PURCHASER undertakes, within 7 (seven) days of being requested to do so by the SELLER, to furnish the SELLER with its last audited financial accounts or its Auditors written confirmation, and such other financial informationin respect to the PURCHASER as the SELLER may reasonably require, in order to confirm the PURCHASER’S asset value and/or turnover is as warranted in paragraph 20.3 above.
21.1 This offer is irrevocable and expires at 17h00 on the 9th day of May 2020. It is immediately binding upon acceptance hereof without the PURCHASER having been notified of the SELLER's acceptance hereof.
Signed by the PURCHASER at _ this _ day of 20 _.
PURCHASER: I acknowledge that I am acquainted with the contents of this Agreement and that all
the annexures referred to in this Agreement were attached hereto when I signed same.
Consenting spouse signature:
This portion to be completed and signed by member / director / trustee in the event of the PURCHASER being a close corporation / company / trust.
I, the undersigned,
Full Name of Representative
Contact Telephone / Cellular Telephone Number
hereby consents to the conclusion of this Agreement and guarantees and binds himself as surety for and co-principal debtor in solidum with the PURCHASER to the SELLER for the due and punctual fulfilment and discharge of all the conditions and obligations undertaken by the PURCHASER to the SELLER pursuant to this Agreement, under renunciation of the benefits of excussion and division with the meaning and effect of which benefits and the renunciation thereof he acknowledges himself to be acquainted. No variation or amendment or novation of the Agreement shall prejudice the suretyship obligations hereby undertaken by the undersigned guarantor, the object being that the undersigned guarantor will at all times be liable as surety and co-principle debtor, even if the Agreement is varied or amended or novated, and even if the PURCHASER is granted an indulgence by the SELLER.
Signed by the Guarantor at _ _ this _ _ _day of 20_ .
Signed by the Seller at _ _ _ this _ _ _day of 20 _.
Zimbali Resort Developments Joint Venture Partnership
INSTALMENT SALE - CONDITIONS OF SALE
1 DEFINITIONS AND INTERPRETATION
For the purposes of the Agreement and the CONDITIONS OF SALE unless the context indicates to the contrary –
1.1 “ACT" means the Sectional Titles Act No. 95 of 1986 (as amended) and any regulations in force thereunder;
1.2 “AGREEMENT" means this Agreement to which these CONDITIONS OF SALE are Annexure A, andall other Annexures thereto;
1.3 “ASSOCIATION” means The Ridge, Zimbali Lakes Owners Association;
1.4 “CONDITIONS OF SALE" means these conditions of sale;
1.5 “COXXXYANCERS" means Tim du Toit & Company Incorporated;
1.6 “COMMON PROPERTY” shall mean all those portions of the SCHEMES including but not limited to any walls, foundations, roofing, lifts, stairwells, corridors, walkways, external spaces and gardens, common parking spaces, or any part thereof which do not form part of any UNIT and which have not been allocated for the exclusive use of any UNIT and are capable of, and intended for, the use, enjoyment, benefit and utility in common by all Owners of UNITS in the SCHEME;
1.7 “CPA” means the Consumer Protection Act No. 68 of 2008;
1.8 “COVERING SCHEDULE” means the COVERING SCHEDULE on page 2 of the AGREEMENT, recording the details of the parties, the description of the PROPERTY, the purchase price thereof and ancillary information;
1.9 “DATE OF TRANSFER" means the date of registration of the transfer of the PROPERTY to the PURCHASER in the Deeds Registry;
1.10 “DATE OF POSSESSION" means the DATE OF TRANSFER;
1.11 “DATE OF SIGNATURE” means the DATE OF SIGNATURE hereof by the last signing of the SELLER or the PURCHASER;
1.12 “DEVELOPER” means the SELLER;
1.13 “PURCHASER" means the purchaser in terms of this AGREEMENT;
1.14 “JURISTIC PERSON” means a partnership, association, trust, body corporate, company, close corporation or other legal or juristic person;
1.15 “NHBRC” means the National Home Builders' Registration Council;
1.16 “PROPERTY” means the PROPERTY purchased by the PURCHASER as set out in paragraph 2 of the COVERING SCHEDULE;
1.17 “PUD SITE” means a Planned Unit Development SUB-DIVISION in THE RIDGE;
1.18 “RESORT” means the properties over which the ZLR has jurisdiction;
1.19 “RESORT GUIDES” means The Architectural Guidelines, the Landscaping Guide and the Sustainability Guidelines of the RESORT;
1.20 “RULES" means the Governing Rules as defined in the ZLR CONSTITUTION or the Conduct Rules, if any, of the ASSOCIATION;
1.21 “SCHEME" means any sectional title SCHEME to be erected on any PUD SITE in THE RIDGE, comprising all buildings to be constructed on such PUD SITE;
1.22 “SR SITE” means a single residential SUB-DIVISION in THE RIDGE;
1.23 “SUB-DIVISION” means any portion of freehold property in THE RIDGE, capable of separate, individual, legal ownership.;
1.24 “SUB-DIVISION PLAN" means the proposed plan of sub-division which is Annexure "B" to the CONDITIONS OF SALE consisting of a location plan and situation of a SR SITE or PUD SITE in THE RIDGE;
1.25 “SECTION" means a proposed SECTION in a SCHEME to be developed on a PUD SITE, as defined in the ACT;
1.26 “UNIT” means a UNIT to be established in terms of the ACT, and comprising the SECTION and an undivided share in the COMMON PROPERTY in the SCHEME apportioned to the SECTION in accordance with the participation quota to be specified in a schedule to be endorsed on the sectional plan;
1.27 “THE RIDGE” means the node within the RESORT managed by the ASSOCIATION, comprised of SR SITES and PUD SITES, on which will be developed SCHEMES and residential dwellings;
1.28 “RIDGE CONSTITUTION” means the Constitution of the ASSOCIATION;
1.29 “ZLR” means Zimbali Lakes Resort Management Association;
1.30 “ZLR CONSTITUTION” means the Constitution of the ZLR;
1.31 “ZSC” means the Zimbali Sports Club;
1.32 words importing a gender shall include all genders and the singular shall include the plural and vice versa;
1.33 words or expressions defined in the ACT shall have the same meanings in this AGREEMENT unless this AGREEMENT specifies to the contrary;
1.34 clause headings are inserted purely for convenience and shall not be relevant in interpreting the contents of the clauses to which they relate;
1.35 if the PURCHASER consists of more than one person, such persons shall be jointly and severally liable in solidum for all their obligations in terms of this AGREEMENT;
1.36 no indulgence or relaxation which the SELLER may allow to the PURCHASER in regard to the carrying out of the PURCHASER'S obligations in terms of or pursuant to this AGREEMENT shall prejudice the SELLER'S rights under this AGREEMENT in any manner whatsoever, or be regarded as a waiver of the SELLER'S rights in terms of this AGREEMENT, or be construed to act as an estoppel against the SELLER to otherwise strictly enforce compliance of the PURCHASER'S obligations in terms of this AGREEMENT;
1.37 if any provision of this AGREEMENT is unenforceable for any reason whatever, such provision shall be deemed to be separate and severable from this AGREEMENT, without in any way affecting the validity of the remaining provisions of this AGREEMENT;
1.38 no indulgence or relaxation which the SELLER may allow to the PURCHASER in regard to the carrying out of the PURCHASER’S obligations in terms of or pursuant to this AGREEMENT shall prejudice the SELLER’S rights under this AGREEMENT in any manner whatsoever, or be regarded as a waiver of the SELLER’S rights in terms of this AGREEMENT, or be construed to act as an estoppel against the SELLER to otherwise strictly enforce compliance with the PURCHASER’S obligations in terms of this AGREEMENT;
1.39 in interpreting this AGREEMENT, no provision shall be construed in a limiting fashion or in accordance with the Eiusdem Generis Rule (i.e. a specific provision of this AGREEMENT on any particular issue, shall not be deemed in any way to detract from any general provision in respect to the same issue);
1.40 the rule of construction that this AGREEMENT shall be interpreted against the Party responsible for the drafting of thereof, shall notapply;
1.41 the provisions of this AGREEMENT, shall be read in conjunction with the provisions of the ACT, and insofar as the provisions of this AGREEMENT are inconsistent with the provisions of the ACT, the provisions of the ACTshall prevail;
1.42 reference to a natural person shall include a JURISTIC PERSON and vice versa;
1.43 any reference to any statute, legislation or regulations shall be deemed to include any lawful amendments thereto or re-enactments thereof;
1.44 where a number of days are prescribed, they shall consist of all days (i.e. including Saturday, Sunday and Public Holidays) and shall exclude the first day and include the last day;
1.45 where an expression has been defined and such definition contains a provision conferring rights or imposing obligations on any party, effect shall be given to that provision as if it were a substantive provision contained in the body of this AGREEMENT;
1.46 if a number is referred to in numerals and words, the words shall prevail in the event of any conflict between the two;
1.47 this AGREEMENT shall be governed by and construed according to the Laws of the Republic of South Africa;
1.48 the expiration or termination of this AGREEMENT shall not affect those provisions of this AGREEMENT which expressly provide that they will operate after any such expiration or termination or, which out of necessity must continue to have effect after such expiration, notwithstanding the fact that the paragraphs do not expressly provide this;
1.49 to the extent that the AGREEMENT is signed on a date which results in the use of any tense being inappropriate, the AGREEMENT shall be read in the appropriate tense;
1.50 a fully executed scanned and emailed copy of this AGREEMENT shall be accepted as an original and this AGREEMENT may be signed in counterparts and will be effective as such, each of which will be deemed an original and all of which together shall constitute one and the same AGREEMENT as at the DATE OF SIGNATURE of the party last signing as one of the counterparts;
1.51 this AGREEMENT shall be binding on and enforceable by the administrators, trustees, successors in title, successors in office, assigns or liquidators of the parties as fully and effectually as if they had signed this AGREEMENT in the first instance and reference to any party shall be deemed to include such party’s administrators, trustees, successors in title, successors in office, assigns or liquidators, as the case maybe;
1.52 this AGREEMENT incorporates the annexures (if any), which annexures shall have the same force and effect as the provisions set out in the body of this AGREEMENT. The various documents forming part of this AGREEMENT are to be taken as mutually explanatory. In the event of any conflict or inconsistency the provisions contained in the main body of the AGREEMENT will prevail.
1.53 the provisions of this AGREEMENT shall be read in conjunction with the provisions of the CPA and insofar as the provisions of the AGREEMENT are inconsistent with the provisions of the CPA, the provisions of the CPA shall prevail.
2 LOAN FROM FINANCIAL INSTITUTION
2.1 This CONTRACT shall not be subject to or conditional upon the PURCHASER obtaining a formal loan quotation from a South African commercial bank to fund the balance of the purchase price, as the parties have agreed to the acquisition of the PROPERTY by way of an instalment sale. The PURCHASER shall however be entitled to apply for mortgage finance at any time during the currency of the instalment sale agreement, but in the event of such mortgage finance application being unsuccessful, the PURCHASER shall nevertheless be obliged to continue payment of the agreed instalments until the purchase price shall have been settled in full. Payment of the instalments may only be discontinued once a guarantee from a registered South African commercial bank has been provided to the CONVEYANCERS to secure the balance of the purchase price.
2.2 For the avoidance of doubt, should any loan not be granted, or granted for an insufficient amount, or should the SELLER not receive a copy of the written approval by the aforesaid commercial bank of such loan, or if received, should the PURCHASER fail to secure the balance of the purchase price with a guarantee from a registered South African commercial bank, then and in that event, this instalment sale AGREEMENT shall not lapse, but shall remain enforceable in accordance with its terms.
2.3 Should the PURCHASER elect to apply for a loan to fund the payment of the purchase price, or a portion thereof, the PURCHASER shall be obliged to make application through a bond originator appointed by the SELLER. It is recorded however that the Purchaser shall not be limited to the bond originator in making such application for the loan and may make other applications if it so requires. The SELLER shall be entitled to negotiate an introductory commission from the bond originator.
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3 DEVELOPMENT OF PROPERTY
3.1 As soon as reasonably possible after the DATE OF TRANSFER, but no later than 60 (sixty months) thereafter, the PURCHASER shall commence construction of a residential dwelling on the PROPERTY.
3.2 The PURCHASER shall be obliged to complete such construction and development of the residential dwelling within 18 (eighteen) months following the date upon which construction commenced.
3.3 In the event that the PURCHASER fails to commence construction within the period provided for in 3.1 above or to complete construction within the period provided for in 3.2 above, as the case may be, the SELLER shall be entitledto-
3.3.1 repurchase the PROPERTY from the PURCHASER for an amount equal to the original purchase price paid by the PURCHASER in terms of this AGREEMENT OF SALE (inclusive of VAT);or
3.3.2 sell the PROPERTY to any third party for an amount not less than the original purchase price paid by the PURCHASER in terms of the said AGREEMENT OF SALE. The PURCHASER hereby irrevocably and in remsuam appoints the SELLER as his duly authorised agent for purposes of such sale,
3.4 The development of the residential dwelling will at all times be subject to the title conditions imposed in clause 5 of the AGREEMENT OF SALE, to ensure-
3.4.1 a consistent design language for THE RIDGE through the use of the prescribed RESORT GUIDES;
3.4.2 the protection of the interests of the SELLER, the ZLR, the ZSC and theASSOCIATION.
3.5 The PURCHASER acknowledges that on completion of the residential dwelling to be developed on the PROPERTY the RESORT may be incomplete and that he may suffer inconvenience from building operations and from noise and dust resulting therefrom and the PURCHASER shall have no claim whatsoever against the SELLER, the ASSOCIATION or the ZLR by reason of any suchinconvenience.
3.1 The SELLER hereby sells the PROPERTY to the PURCHASER who herebypurchases the PROPERTY on the terms and conditions contained herein.
5.1 Save as provided in the AGREEMENT, the PURCHASER purchases the PROPERTY voetstoots and shall have no claim against the SELLER in respect of any defects whether latent or patent in thePROPERTY.
5.2 The PROPERTY is sold subject to all conditions and servitudes contained in the existing title deeds or on any general plan/s or plans of sub-division prepared or to be prepared in respect of THE RIDGE or otherwise recorded or to be recorded against the title deed of the PROPERTY at the Deeds Registry.
5.3 The PROPERTY is sold subject to the SELLER’s right to impose such further right of way, road, encroachment or engineering services servitudes as may in the SELLER’s discretion be required for the development of the RESORT or THE RIDGE, or any component thereof.
5.4 The PURCHASER acknowledges that he has satisfied himself as to the nature, locality and extent of the PROPERTY and the development opportunities that it represents, and the SELLER shall not be liable for any deficiency in the extent thereof nor shall it benefit by any surplus.
5.5 The PURCHASER shall have no claim of any nature against the SELLER for any loss, damage or injury which the PURCHASER may directly or indirectly suffer by reason of any latent or patent defects in the PROPERTY, or arising out of a Force Majeure Event or any other cause either wholly or partly beyond the SELLER'S control.
5.6 Notwithstanding anything contained herein or elsewhere, and in no way detracting from the generality to the aforesaid, it is specifically recorded that the SELLER shall not be liable for damages arising from defects or faults in any residential dwelling/s to be developed on the PROPERTY caused by surface water, storm water, rain water or geological disturbances.
6 LEVY AND OTHER CHARGES
6.1 The PURCHASER shall, from the DATE OF TRANSFER, accept liability for payment of the monthly levy referred to in the RIDGE CONSTITUTION, to be calculated as provided for therein. The PURCHASER shall be obliged to effect payment of such levy by means of debitorder.
6.2 For the purposes of 6.1, the expenses of administration shall include all disbursements of whatsoever nature which the SELLER shall in its discretion deem necessary and/or desirable for the preservation of THE RIDGE and its amenities, including without limitation all costs of maintenance of the communal property, the payment of rates and any other charges levied by any governmental or local authority, insurance of the buildings in THE RIDGE against fire and any other insurances which the SELLER may deem it prudent to effect and the payment of wages to any servant which the SELLER may reasonably decide to employ for the purpose of maintaining the communal property.
6.3 The PURCHASER shall pay a Lakes Stabilisation Levy (as defined in the ZLR CONSTITUTION) when the PROPERTY or a component thereof is transferred to the second owner/s thereof. Such second owner/s may be the purchasers of a completed residential dwelling on the PROPERTY developed by the PURCHASER, or such second owner/s may have acquired the PROPERTY in an undeveloped state from the first ownerthereof.
6.4 The PURCHASER agrees that he shall have no right to reclaim from the ZLR or the ASSOCIATION or the SELLER any amount paid by way of a contribution, monthly levy or special levy, save as provided herein.
7.1 The CONVEYANCERS shall pass transfer of the PROPERTY to the PURCHASER as soon as is reasonably practicable in the circumstances, provided the PURCHASER has complied with all his obligations under this AGREEMENT and the PROPERTY has become registrable in terms of the Alienation of Land Act, 1981. If transfer becomes possible prior to the anticipated date of transfer recorded in the COVERING SCHEDULE, provided that the full purchase price shall have been settled or secured, the PURCHASER shall be obliged to accept such earlier transfer date.
7.2 The PURCHASER shall, within 7 (seven) days of being called upon to do so by the CONVEYANCERS –
7.2.1 pay to the CONVEYANCERS all costs of and incidental to the passing oftransfer of the PROPERTY to the PURCHASER, including transfer duty, VAT (if applicable), bond costs, bank charges and all conveyancing fees and disbursements and;
7.2.2 furnish all such information, sign all such documents and pay all such amounts that may be necessary or required to enable the CONVEYANCERS to pass transfer of the PROPERTY;
7.3 No liability of any nature whatsoever shall attach to the SELLER, ZLR or the ASSOCIATION arising out of any delays in effecting transfer of the PROPERTY to the PURCHASER.
7.4 The PURCHASER shall be obliged to accept transfer of the PROPERTY, inter alia, subject to –
7.4.1 the conditions, reservations and servitudes which burden thePROPERTY;
7.4.2 any change in the description or numbering of the PROPERTY;
7.4.3 the conditions of title referred to in clause 5 of the AGREEMENT;
7.4.4 a condition registered in favour of the DEVELOPER against the title deed to the PROPERTY to the effect that the PROPERTY or any part thereof shall not be used for the purposes of a Share Block Scheme under the provisions of the Share Blocks Control Act, Act No. 59/1980, a Time Share Scheme under the provisions of the Property Time- Sharing Control Act 75/1983, a “practical ownership scheme” or any similar such schemes without the prior written consent of the SELLER except in circumstances where the SELLER conducts such a scheme in respect of a UNIT erected on the RESORT;
7.5 It is recorded that in order to effect transfer of the PROPERTY, the CONVEYANCERS shall be required to lodge, inter alia, a Transfer Duty Exemption Certificate, issued by the South African Revenue Services (hereinafter in this paragraph referred to as “SARS”) with the Deeds Registry. It is further recorded that SARS have adopted a policy of not issuing the aforesaid certificate in the event of any party to the transaction in questions being in arrears with the payment of any amounts SARS believes is due to it or otherwise not being in compliance with Tax Laws. Should SARS refuse to issue a Transfer Duty Exemption Certificate in respect of the sale of the PROPERTY, in terms of this AGREEMENT, due to the fact that the PURCHASER is in arrears with any payments to SARS or has otherwise not complied with any Tax Laws, then in that event, the PURCHASER shall be deemed to be in breach of this AGREEMENT and the SELLER shall be entitled to cancel this AGREEMENT should the PURCHASER not rectify such breach within 7 (seven) days of receipt of a notice from the SELLER calling upon him to remedy such breach (as contemplated in the CONDITIONS OF SALE). Further, should there be any delay in the issue of the aforesaid Transfer Duty Exemption Certificate by SARS for either of the aforesaid reasons, then in that event, the PURCHASER shall be deemed to be delaying the registration of transfer which shall entitled thx XXLLER to claim mora interest from the PURCHASER as contemplated herein below.
8 GOVERNING RULES
The PURCHASER acknowledges that the Trustees of ZLR and the ASSOCIATION shall be entitled at all times to, inter alia, lay down RULES in regard to –
8.1 the preservation of the natural environment;
8.2 vegetation and flora and fauna in the RESORT;
8.3 the use and allocation of private parking areas for owners of immovable property in the RESORT and theirguests;
8.4 the right to keep any animal, reptile or bird;
8.5 the use of recreation and entertainment in respect of common areas and amenities and facilities;
8.6 the placing of movable objects upon or outside the buildings included in the RESORT, including the power to remove any such objects;
8.7 the storing of flammable and other harmful substances;
8.8 the conduct of any persons within the RESORT and the prevention of nuisance of any nature to any owner of immovable property in the RESORT;
8.9 the use of common land within the RESORT;
8.10 the use of any property by co-owners where same is owned in undivided shares bymore than one person;
8.11 the use of roads, pathways and open spaces;
8.12 the imposition of fines and other penalties to be paid by members of the ASSOCIATION, and
8.13 generally in regard to any other matter which the ZLR or ASSOCIATION from time to time considers appropriate, and the PURCHASER undertakes and shall be obliged, with effect from the DATE OF TRANSFER, to abide by such RULES and to ensure that all contractors, nominees, invitees and other persons who go upon the RESORT by virtue of the PURCHASER’s rights thereto, do likewise.
9 AGENT'S COMMISSION
9.1 The PURCHASER warrants that it was introduced to the PROPERTY by an estate agent appointed or mandated by the agency referred to in paragraph 9 of the COVERING SCHEDULE who, it is recorded, was the effective cause of the sale in terms of thisAGREEMENT.
9.2 The PURCHASER warrants that no agency or agent, other than those referred to in the CONDITIONS OF SALE above, was responsible for introducing him to the PROPERTY and further warrants that no other agent or agency will have any claim against the SELLER for agent's commission arising out of this transaction. The PURCHASER indemnifies and holds harmless the SELLER against any loss, damage or expense sustained, suffered or incurred by the SELLER arising out of any breach of the foregoing warranty.
10.1 If the PURCHASER:
10.1.1 fails to pay any amount in terms of this AGREEMENT, or commits any breach of the remaining conditions of this AGREEMENT and should the PURCHASER fail to remedy such breach within 30 (thirty) calendar days of the date of delivery, if delivered by hand, or receipt if posted by prepaid registered post, of a written notice calling on him to remedy such breach, or
10.1.2 commits a repetition of such breach within a period of two months after having been warned by the SELLER to desist therefrom, the SELLER shall be entitled, without prejudice to any other rights, which it may have at law or in terms hereof and at the SELLER'S election to –
10.1.2.1 cancel this AGREEMENT, and retake possession of the PROPERTY, and should the SELLER so elect it may recover any damages however incurred as a result of such cancellation (including any loss and expenses on a resale, whether by public auction or private treaty), in which event the amount or amounts paid to the SELLER or the CONVEYANCERS (including any amount held in trust by the CONVEYANCERS and any interest thereon) may be retained by the SELLER as liquidated damages (rouwkoop) or towards the payment of any damages sustained by the SELLER (it being recorded that the damages that the SELLER may suffer in this regard may include, inter alia, loss of interest, agents commission, administration fees, marketing fees and other professional fees incurred, holding costs incurred in respect of the PROPERTY, including, but in no way limited to, rates and levies payable in respect of the PROPERTY, and should the PROPERTY subsequently be resold for a lower purchase price than that referred to in this AGREEMENT, the difference in such purchase prices) or
10.1.2.2 claim immediate performance by the PURCHASER of all his obligations in terms of this AGREEMENT whether or not the due date for the performance shall otherwise have arrived.
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10.2 Notwithstanding the foregoing, should the SELLER exercise any of his rights in terms hereof and should the PURCHASER dispute the SELLER’S right to do so, then pending the determination of that dispute, the PURCHASER shall continue to pay all amounts payable in terms of this AGREEMENT on the due date thereof, and to comply with all the terms hereof, and the SELLER shall be entitled to recover and accept such payments and/or other performance without prejudice to the SELLER’S claim to have exercised its rights in terms hereof, and in the event of the SELLER succeeding in such dispute, the SELLER shall be entitled to retain such amounts received in the interim as payment for the occupational rights, if any, exercised and/or enjoyed by the PURCHASER in the interim.
10.3 For all purposes of this AGREEMENT any act or omission on the part of any representative, nominee or other person who occupies the PROPERTY, or invitee of the PURCHASER, or of such nominee or other person who goes upon the PROPERTY shall be deemed to be an act or omission of the PURCHASER.
10.4 Should the SELLER, commit a breach of any of the provisions of this CONTRACT, then the PURCHASER shall be entitled to give the SELLER written notice to remedy the breach. If the SELLER fails to comply with that notice within 30 (Thirty) days of receipt thereof, subject to any other provisions of this CONTRACT to the contrary, the PURCHASER shall be entitled to cancel this CONTRACT. In such an event, the PURCHASER shall not be entitled to claim specific performance in terms of this CONTRACT, and the PURCHASER’s claim for damages shall be limited to the repayment of any amount/s paid to the SELLER or the CONVEYANCERS in respect of the purchase price.
11 JURISDICTION AND COSTS
11.1 In the event of any action or application arising out of this AGREEMENT, the parties hereby consent to the jurisdiction of the Magistrate's Court otherwise having jurisdiction under section 28 of the Magistrate's Court Act of 1944, as amended. Notwithstanding that such proceedings are otherwise beyond the said court's jurisdiction, this clause shall be deemed to constitute the required written consent conferring jurisdiction upon the said court pursuant to Section 45 of the Magistrate's Court Act of 1944, as amended.
11.2 Notwithstanding anything to the contrary herein contained either party hereto shall have the right at its sole option and discretion to institute proceedings in any other court which mightotherwise have jurisdiction.
11.3 All legal costs incurred by either party in consequence of any default of the provisions of this AGREEMENT by the other shall be payable by the defaulting party on demand to the maximum amount permitted by Law and shall include collection charges, the costs incurred by the aggrieved party in endeavouring to enforce such rights prior to the institution of legal proceedings and the costs incurred in connection with the satisfaction or enforcement of any judgement awarded in favour of the aggrieved party in relation to, in terms of or arising out of this AGREEMENT.
12 SOLE AGREEMENT
12.1 The PURCHASER acknowledges that this AGREEMENT constitutes the sole basis of the AGREEMENT between himself and the SELLER, and that he has not been induced to enter into such AGREEMENT by any representations or warranties (whether contained in any letter, brochure, advertising material or otherwise) other than those contained herein and he shall be deemed to have satisfied himself in regard to all other relevant matters of whatsoever nature not specially dealt with herein. The PURCHASER confirms that, to the extent that any representations or warranties in respect of the PROPERTY were made to the PURCHASER, prior to the signature of this AGREEMENT, such representations and/or warranties shall not be binding on the SELLER. Any agreement between the PURCHASER and the SELLER to cancel, alter or add to this AGREEMENT shall not be binding and shall be of no force or effect unless reduced to writing and signed by the parties hereto, or by their agents acting on their written instructions.
13 PURCHASER’S ACKNOWLEDGMENTS
13.1 The PURCHASER acknowledges that he is aware of the intended future development of the RESORT by the DEVELOPER, which development will consist of upmarket residential dwellings, golf course(s), hotels, commercial properties, private and publicly accessible recreational areas, water body and sports club. It is intended for the development to be aesthetically pleasing and to have a harmonious style which blends with the environment. The PURCHASER hereby undertakes that he will, at all times, co-operate with the DEVELOPER in an endeavour to facilitate the success of the said development. Also in this respect, the PURCHASER undertakes that he shall not unreasonably interfere with any such proposed development nor lodge an objection with any competent authority in respect of any such development. In particular, but without derogating from the generality of the foregoing, the PURCHASER agrees that he will not object to any application made by or on behalf of the DEVELOPER, its nominee or agent for special usage consent, licences for shopping, commercial, filling station rights, rezoning, removal of conditions of title under the Removal of Restrictive Conditions Act or by way of an application to Court or to any local or other competent authority in respect of any property within the RESORT. Again in no way detracting from the generality of the aforesaid, the PURCHASER specifically acknowledges that owners of land surrounding the PROPERTY will be erecting buildings and other structures on surrounding land which may block or otherwise interfere with the views from the PROPERTY. The PURCHASER agrees he shall have no right to object to the construction of any building or other structure on any land within the RESORT on the basis that such building or other structure blocks or otherwise interferes with the views from the PROPERTY, nor will he have any claim for any alleged diminution in value of the PROPERTY arising out of any interference with the views from the PROPERTY by reason of the construction of any such building or structure.
13.2 The PURCHASER acknowledges that:
13.2.1 for reasons of security on the RESORT and due to the nature of the proposed development of the RESORT and the various matters about which any proposed purchaser should become aware when buying into the RESORT, if the PURCHASER wishes to dispose of the PROPERTY or any share therein or any subdivision thereof, he shall, to the extent that he requires the services of an estate agent in regard to such disposal, do so in accordance with this clause;
13.2.2 this clause is inserted for the benefit of the DEVELOPER, who shall be entitled to enforce its terms by law;
13.2.3 any owner who acquires the PROPERTY, and who thereafter wishes to dispose of the PROPERTY, shall –
126.96.36.199 to extent that he requires the services of an estate agent, do so exclusively through an estate agent accredited by the DEVELOPER; and
188.8.131.52 whether or not he utilises the services of an estate agent, include a clause in any document pursuant by which he disposes of the PROPERTY on the same terms precisely as this clause so that any future owner shall, to the extent that such owner requires the service of an estate agent in regard to the disposal of the PROPERTY, be required to appoint only an estate agent accredited by the DEVELOPER.
13.3 The PURCHASER further acknowledges that in the event of the PURCHASER being an artificial person, such as a close corporation, company or trust, and in the event of the member, director, shareholder, trustee or beneficiary of the PURCHASER (as the case may be) wishing to dispose of the member’s interest, shares or beneficial interest in the PURCHASER (as the case may be), the PURCHASER shall procure that such party shall, to the extent that such party requires the services of an estate agent in regard to such disposal, comply with the provisions of paragraph 13.2 of the CONDITIONS OF SALE which shall apply, mutatis mutandis.
13.4 When selling the PROPERTY, the PURCHASER shall utilise such documentation (including the standard Sale Agreement), prescribed by the DEVELOPER.
13.5 The PURCHASER shall not be entitled to sell or otherwise transfer ownership of the PROPERTY, unless it is a suspensive condition of such sale or other transfer that –
13.5.1 the transferee, in a manner acceptable to the ASSOCIATION, agrees to become a member and is admitted as a member of the ASSOCIATION;
13.5.2 the transferee and, in the event of the transferee being an artificial person, its nominee(s), being accepted as a Silver Member of the Zimbali Sports Club.
13.6 Notwithstanding the provisions of clause 10, in the event of a breach of this clause 13, the DEVELOPER shall be entitled in its absolute discretion to refuse its written approval as required to the sale and transfer of the PROPERTY until the provisions of this clause 13 are complied with and no party to this AGREEMENT shall have any claim for damages arising out of the DEVELOPER’S refusal to give such written approval.
13.7 In order to protect the DEVELOPER’S, the ZLR’S and the ASSOCIATION’S rights in this regard, the PROPERTY shall be owned by the PURCHASER, subject to a condition in the Title Deeds to the PROPERTY to the effect that the PROPERTY, or any portion thereof or interest therein shall not be alienated or otherwise transferred without the prior written consent of the ZLR, the ASSOCIATION or the DEVELOPER first being had and obtained, which consent the ZLR, the ASSOCIATION and the DEVELOPER shall grant as provided for in clause 5 of theAGREEMENT.
13.8 In order to maintain high standards and with a view to ensuring attractive and harmonious development within the RESORT, all owners of immovable property within the RESORT shall be required to adhere to the architectural, landscaping and sustainability controls contained in the RESORT GUIDES and applicable to their particular property as formulated by ZLR and/or the ASSOCIATION. Any dwelling or other structure to be erected on the PROPERTY, or any alteration or extension to any existing dwelling or other structure on the PROPERTY once developed, shall be done strictly in accordance with the building plans that have been submitted to and approved in writing by the ZLR and the local or any other competent authority and no work whatsoever shall commence until such time as the relevant approval has been obtained.
13.9 The PURCHASER agrees to accept any changes to the provisions of this paragraph 13 of the CONDITIONS OF SALE, in respect of the accreditation of estate agents and payment of agents commission, as may in future be agreed to between the DEVELOPER and the ASSOCIATION (which amendments shall be considered binding on the PURCHASER).
13.10 The PURCHASER acknowledges that it understands the English language and considers itself fluent therein.
13.11 The PURCHASER acknowledges that it has had an opportunity to carefully read and consider the provisions of this AGREEMENT and that it has been free to secure independent legal advice in respect of the provisions of same. In addition, the PURCHASER acknowledges that the SELLER undertook that the SELLER or the CONVEYANCERS would explain any provisions of the AGREEMENT which the PURCHASER may not have understood fully and, to the extent that the PURCHASER made the SELLER aware of any provisions of this AGREEMENT it did not understand, such provisions were fully explained to the PURCHASER.
14.1 Resale and Assignment
14.1.1 The PURCHASER may not resell the PROPERTY prior to registration of transfer except with the prior written consent of the SELLER who shall charge a fee in respect of such resale for documentation, vetting of the new purchaser, obtaining legal advice, administration fee etc. in an amount of 2% (two percent) of the resale price.
14.1.2 Any sale, assignment, disposition or transfer of the PROPERTY or any part thereof shall be on the SELLER’S Standard Resale Agreement in respect of THE RIDGE.
14.2 It is recorded that the obligation to pay the Lakes Stabilisation Levy shall be binding on all successive owners of the PROPERTY and the BENEFICIAL INTEREST (in other words, any future transfer of the PROPERTY or the BENEFICIAL INTEREST will trigger the payment of the aforesaid consideration to ZLR and the PURCHASER undertakes to include a clause in any document pursuant to which the PROPERTY or BENEFICIAL INTEREST is disposed of, on the same terms and conditions as this clause, so that any future owner of the PROPERTY and BENEFICIAL INTEREST shall be liable to make payment of the aforesaid amount to ZLR, in perpetuity.
14.3 The provisions of clauses 14.1, 14.2 and 14.3 shall apply to any resale/transfer of the PROPERTY or BENEFICIAL INTEREST and the PURCHASER and its successors in title shall incorporate those clauses in any such sale or transfer document. The SELLER or any of its associated/subsidiary companies shall not be liable to pay the amount set out in14.2 in respect of any sales of its immovable property in the RESORT.
14.4 Notwithstanding the provisions of clause 10, in the event of a breach of this clause 14, the ZLR shall be entitled in its absolute discretion to refuse its written approval which is required to the sale and transfer of the PROPERTY until the provisions of this clause 14 are complied with and neither the PURCHASER nor the buyer of the PROPERTY from the PURCHASER, nor any subsequent seller or purchaser, shall have any claim for damages against the ZLR arising out of the ZLR refusal to give such written approval.
15 ZIMBALI FACILITIES MANAGEMENT COMPANY (ZFM)
15.1 It is recorded that the Zimbali Facilities Management Company (ZFM) shall be established under such name as the Commission for Intellectual Property and Companies may approve, which Company will supply to the entire RESORT various utilities and services such as electricity and water (to the extent that it is able to lawfully acquire and supply such services) building maintenance, landscaping, housekeeping and house servicing facility, and all or any similar services and supply same to the members of the various Associations forming part of ZLR and render a charge therefore. In addition the ZFM will install and own fibre optic cable throughout the RESORT and will own and maintain same and charge end users for such products. The SELLER or an associate company of the SELLER will be the shareholder of the ZFM.
15.2 The PROPERTY is sold subject to a communication servitude in favour of the ZFM for the purpose of entering upon the land and installing communication infrastructure equipment and fibre optic cable and other requisite cabling.
15.3 To enable the ZFM to carry out its functions it is anticipated that the SELLER will lease or transfer the maintenance buildings, store rooms and associated buildings to the ZFM to enable it to properly carry out its functions.
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16 SALE CONDITIONAL UPON MEMBERSHIP
16.1 The PURCHASER shall be obliged to become at least a Silver Member of the Zimbali Sports Club, being a commercial facility owned and managed by the SELLER. The PURCHASER shall pay the club joining fee in force from time to time together with the annual subscription levied from time to time.
16.2 The PURCHASER shall be obliged to accept the PROPERTY subject to a condition registered against the title deed of the PROPERTY to the effect that the PROPERTY, shall not be alienated, mortgaged or otherwise dealt with without the prior written consent of the Zimbali Sports Club first being had and obtained, provided that the Zimbali Sports Club shall grant the aforesaid consent in the event of the Transferor having complied with all its obligations to the Zimbali Sports Club (and in no way detracting from the generality of the aforesaid, the Transferor having paid all amounts due to the aforesaid Club) and the Transferee undertaking to become at least a Silver Member of the aforesaid Club.
17.1 The Parties chooses as their domicilia citandi et executandi and as the address at which notices may be delivered to either of them by the other, the addresses set out in the COVERING SCHEDULE to the AGREEMENT.
17.2 Any notice :
17.2.1 sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to the relevant postal address set out in the AGREEMENT shall be deemed to have been received on the 5th day after posting (unless the contrary is proved); or
17.2.2 delivered by hand to a responsible person during ordinary business hours at its physical address shall be deemed to have been received on the date of delivery; or
17.2.3 transmitted by email to the relevant email address set out in the AGREEMENT, shall be deemed to have been received upon date of successful transmission;
17.3 Notwithstanding anything to the contrary contained herein, a written notice or communication actually received by the PURCHASER shall be an adequate written notice or communication to it, notwithstanding that it was not sent or delivered to its chosen domicilium citandi et executandi.
18.1 The SELLER does not warrant any information given in respect of the PROPERTY, whether this information is given prior to or subsequent to the signing of this AGREEMENT, save for the information in respect of the PROPERTY specifically warranted in this AGREEMENT. The SELLER shall not be liable for any claim of any nature whatsoever that may arise due to any inaccuracies in information given by the SELLER to the PURCHASER or his agent in respect of the PROPERTY and the PURCHASER hereby indemnifies the SELLER and holds it harmless against and in respect of any injury, loss or damage however caused which the PURCHASER may suffer as a result of any inaccuracies in any information given by the SELLER (save for the information specifically warranted in this AGREEMENT).
18.2 In no way detracting from the generality of 18.1 above it is specifically recorded that the SELLER does not warrant the accuracy of any geotechnical reports or any other information given on sub soil conditions on the RESORT by the SELLER or its representatives (whether sales, marketing or otherwise) to the PURCHASER whether such information is given prior to or subsequent to the signing of this AGREEMENT. The PURCHASER hereby indemnifies the SELLER and holds itself harmless against and in respect of any injury, loss or damage however caused to the PURCHASER as a result of any inaccuracies in any geotechnical reports or any information in respect of sub soil conditions that the SELLER may at any time have given to the PURCHASER.
19.1 The SELLER shall bear its own costs in connection with the preparation and execution of this AGREEMENT.
20 CESSION OF PURCHASER’S RIGHTS
20.1 The PURCHASER shall not sell, assign, cede or dispose of the PURCHASER'S rights under this AGREEMENT.
21.1 Any amounts in arrear in terms of this AGREEMENT shall bear interest at the prime overdraft rate charged by Nedbank Limited from time to time, which interest shall be calculated monthly in advance from the date that such amount became due to the date of payment, both days inclusive.
21.2 A certificate by any manager of the said bank as to such prime overdraft rate, from time to time, shall be prima facie proof xx xuch rate.
22 MORA INTEREST
22.1 In the event of there being any delay in connection with the DATE OF TRANSFER for which the PURCHASER is responsible, the PURCHASER agrees, in addition to any other payments due in terms of this AGREEMENT, to pay interest on the full (VAT inclusive) Purchase Price of the PROPERTY at the prime overdraft rate charged by Nedbank Limited from time to time calculated from the date the PURCHASER is notified in writing by the SELLER (or the SELLER's axxxx) as being in mora, to the date upon which the PURCHASER hax xxased to be in mora, both days inclusive.
22.2 A certificate by any manager of the said bank as to such prime overdraft rate from time to time shall be prima facie proof of suchrate.
23 TRUSTEE FOR A COMPANY TO BE FORMED
23.1 In the event of the signatory to this AGREEMENT, on behalf of the PURCHASER, having concluded this AGREEMENT in his capacity as a Trustee for a company to be formed (which signatory is hereinafter in paragraph 23.1.1 referred to as the “SIGNATORY”), then:
23.1.1 the SIGNATORY by his signature hereto warrants that the said company:
184.108.40.206 will be formed;
220.127.116.11 will ratify and adopt the terms and conditions of the AGREEMENT; and
18.104.22.168 will provide the SELLER with written proof thereof; all within a period of 30 (thirty) days from the DATE OF SIGNATURE of this AGREEMENT by the SIGNATORY;
23.2 The SIGNATORY, in his personal capacity hereby under renunciation of the benefits of excussion and division with the full meaning and effect of which he declares himself to be fully acquainted, binds himself and agrees to bind himself as surety and co-principal debtor in solidum with the company to be formed by him in favour of the SELLER for the due and punctual performance of such company's obligations to the SELLER in terms of this AGREEMENT.
23.3 If the terms and conditions of Clause 23.1 above are not fulfilled then the SIGNATORY will by his signature to this AGREEMENT be deemed ipso facto to have concluded the AGREEMENT in his personal capacity as purchaser.
24 ZIMBALI LAKES DEVELOPMENT AND ZIMBALI SPORTS CLUB
24.1.1 The PURCHASER acknowledges that it is aware of the intended future development of the Zimbali Sports Club (ZSC) and related facilities by the DEVELOPER. Such development is intended to involve, the establishment of, inter alia, an 18 (eighteen) hole golf course, tennis courts, bowls lawns, gym, equestrian facilities, soccer/rugby field, cricket nets, squash courts, archery, cycling trails, walking trails and other sporting activities, commercial and hospitality facilities, public and privately accessible areas so designed as to facilitate an aesthetic and harmonious blending within the environment and the hosting of corporate, local, national and international events. No obligation rests on the DEVELOPER to provide all of the said facilities and neither is the above to be regarded as a comprehensive list of activities. The PURCHASER undertakes that he will at all times co-operate with the DEVELOPER in an endeavour to facilitate the success of the said developments, tournaments, events and competitions. Also in this respect, the PURCHASER undertakes that he will not interfere with any proposed developments or lodge any objection with any competent authority in respect of any developments or events. In particular, without detracting from the generality of the aforesaid, the PURCHASER agrees that it will not object to any application made by and on behalf of the DEVELOPER, its nominees or its agent for special usage consent, licenses for sporting, shopping, commercial rights, zoning applications, or removal of restrictive conditions applications.
24.2 It is recorded that the Zimbali Sports Club is a private facility and that no subscriber shall have any proprietary or voting rights in the ZSC and shall not be entitled to partake in the management of the ZSC. Further, admission to the ZSC shall be in the sole and absolute discretion of the DEVELOPER. In no way detracting from the generality of the aforesaid, it is specifically recorded that persons, who are not owners of immovable property on the RESORT, may become subscribers, at the DEVELOPER’S discretion. All members of each owners association within the ZLR shall be obliged to join the ZSC and pay a Joining Fee in respect of its class of membership as determined by the Proprietor of the ZSC.
25 IFA AGREEMENTS
25.1 "IFA Agreements" shall mean those agreements entered into between the SELLER and/or its affiliated companies, and members of the IFA group of companies in relation to the IFA developments including “THE RIDGE, ZIMBALI LAKES” or “ZIMBALI”, from time to time.
25.2 The PURCHASER acknowledges and agrees that:
25.2.1 the branding of any part of THE RIDGE, ZIMBALI LAKES (and all components thereof) as a "IFA" Resort (including the use of the names "IFA" or “THE RIDGE, ZIMBALI LAKES” or “ZIMBALI”, “ZIMBALI LAKES” and all associated names, logos, slogans, products, and signage), all of which are collectively referred to as “the Marks”, are subject to the terms of the IFA Agreements;
25.2.2 The IFA Agreements include all domain names with the words “THE RIDGE, ZIMBALI LAKES” or “ZIMBALI” therein in any configuration or extension. The PURCHASER or any parties related to the PURCHASER specifically agree that they will not use any such domain name without the consent of the SELLER. The PURCHASER undertakes to enforce this provision against its related parties.
25.2.3 pursuant to the IFA Agreements, the rights of the SELLER (and thereafter, the SELLER'S nominee) to use the Marks are subject to certain terms and conditions, and may be terminated or restricted in certain circumstances; and
25.2.4 for the avoidance of doubt, the SELLER (and thereafter, the SELLER'S nominee or) hereby reserves the right to (i) cease to use any Marks which it has previously used, or adopt any Marks which it has not previously used, and/or (ii) change the name and branding of the “THE RIDGE, ZIMBALI LAKES” or “ZIMBALI” (and all components thereof) without liability, and without obtaining the consent of the PURCHASER, and the PURCHASER shall provide the Seller with all reasonable assistance in doing so. The SELLER makes no guarantee or warranty relating to (i) the use of the Marks in connection with the RESORT (or any part thereof), or (ii) the branding of the said RESORT (or any part thereof) as a "IFA" Resort. The PURCHASER agrees and acknowledges that any change in the Marks or branding of all or any part of the RESORT shall not constitute the basis of a claim by the PURCHASER that the SELLER is in default under this Agreement, or any other agreement in place between the PURCHASER and any or all of those entities from time to time; and
25.3 The PURCHASER shall immediately, if so instructed by the SELLER (or thereafter the SELLER’S nominee), cease absolutely to use the names "IFA” or any other of the Marks in connection with the PROPERTY for any purpose whatsoever. For the avoidance of doubt, the PURCHASER shall not be entitled to use the Marks for any reason without the prior written consent of the SELLER.
25.4 The “THE RIDGE, ZIMBALI LAKES” or “ZIMBALI” and all components thereof shall form part of a world class resort, and shall be managed by the SELLER or its nominee in accordance with international standards applicable to similar resorts being not less than the standards prescribed by the IFA Agreements. In terms of the relevant Management Agreements the rights and duties of the SELLER (or its nominee) will be capable of being ceded and assigned either, in whole or in part, to third parties.
LIST OF ANNEXURES
CONDITIONS OF SALE
PLAN OF SUB-DIVISION
ZSC APPLICATION FORM
ZIMBALI LAKES SPORTS AND LEISURE CLUB (ZLSC)
APPLICATION FORM FOR MEMBERSHIP
I the undersigned (insert name):
Owner of (insert Zimbali Lakes Property Description):
Telephone Number (Home)
Telephone Number (Business)
Class of Membership (Indicate with a cross)
do hereby apply to become a Member of the ZLSC and agree to be bound by the Rules and Regulations in force from time to time and the summary of membership rights and charges set out in Annexures E1 to E4 inclusive.
Version 1 May 2020
ZIMBALI LAKES SPORTS AND LEISURE CLUB (ZLSC) MEMBERSHIP STRUCTURE – PLATINUM MEMBERSHIP
All fees quoted exclude V.A.T. and subject to future increases at the discretion of the ZLSC
JOINING FEE (Exc. VAT)
ANNUAL SUBSCRIPTION (Exc. VAT)
SR, PUD, OCZ, RN, Village, BC Units
Normal (R10,000) p.a.
MEMBERSHIP applies to 1 person only – access to all facilities including golf
Family Additional (R1,000) p.a. per person, max. 4 persons
Family MEMBERSHIP entitling MEMBERSHIP for spouse and up to 2 minor children < 18 years age.
Any Hotel / OCZ / RN / Village / ZOE residence = 2 bedrooms
Normal Less 50% (R5,000) p.a. Family N/A
MEMBERSHIP applies to 1 person only – access to all facilities including golf
Any Hotel / OCZ / RN / Village / ZOE residence = 1 bedrooms
Normal Less 70% (R3,000) p.a. Family N/A.
MEMBERSHIP applies to 1 person only - access to all facilities including golf
Normal + 10% (R11,000) p.a.
EXTERNAL MEMBER treated same as PLATINUM MEMBER above.
MEMBERSHIP is recallable (after minimum of 5 years) at PROPRIETOR’s discretion to protect availability and access to the benefits and facilities for homeowner MEMBERS.
Reciprocal Club MEMBERSHIP ZCC
Fee as agreed with ZLSC, payable to ZLSC
ZLSC subscription – to be agreed
Structured as needs be and subject to ZLSC agreement.
Only available to Zimbali Lakes PLATINUM MEMBERS and restricted to ZLSC golf only.
No restrictions, full benefits
20 year MEMBERSHIP – see Notes below
(Not compulsory & Recallable after 5 years)
for 1 - 4 persons
Normal (R10,000) p.a. per each nominated person
MEMBERSHIP will be offered to companies within the commercial node however this will not be compulsory MEMBERSHIP – see Notes below.
ZIMBALI LAKES SPORTS AND LEISURE CLUB (ZLSC) MEMBERSHIP STRUCTURE – GOLD MEMBERSHIP
All fees quoted exclude V.A.T. and subject to future increases at the discretion of the ZLSC
JOINING FEE (Exc. VAT)
ANNUAL SUBSCRIPTION (Exc. VAT)
SR, PUD, OCZ, RN, Village, BC Units
Normal (R7,000) p.a.
MEMBERSHIP applies to 1 person only – access to all facilities excluding golf
Family Additional (R500) p.a. per person, max. 4 persons
Family MEMBERSHIP entitling MEMBERSHIP for spouse and up to 2 minor children < 18 years age.
Any Hotel / OCZ / RN / Village /
Boulevard residence = 2 bedrooms
Normal Less 50% (R3,500) p.a. Family N/A
MEMBERSHIP applies to 1 person only – access to all facilities excluding golf
Any Hotel / OCZ / RN / Village /
Boulevard residence = 1 bedrooms
Normal Less 70% (R2,100) p.a. Family N/A.
MEMBERSHIP applies to 1 person only - access to all facilities excluding golf
ZIMBALI LAKES SPORTS AND LEISURE CLUB (ZLSC) MEMBERSHIP STRUCTURE – SILVER MEMBERSHIP
All fees quoted exclude V.A.T. and subject to future increases at the discretion of the ZLSC
JOINING FEE (Exc. VAT)
ANNUAL SUBSCRIPTION (Exc. VAT)
SR, PUD, OCZ, RN, Village,
Boulevard Commercial Units
Normal (R5,000) p.a.
MEMBERSHIP applies to 1 person only – access to all facilities excluding any sports facilities
Family Additional (R500) p.a. per person, max. 4 persons
Family MEMBERSHIP entitling MEMBERSHIP for spouse and up to 2 minor children < 18 years age.
Any Hotel / OCZ / RN / Village / Boulevard residence
= 2 bedrooms
Normal Less 50% (R2,500) p.a. Family N/A
MEMBERSHIP applies to 1 person only – access to all facilities excluding any sports facilities
Any Hotel/ OCZ/ RN /Boulevard residence = 1 bedroom
Normal Less 70% (R1,500) p.a. Family N/A.
MEMBERSHIP applies to 1 person only - access to all facilities excluding any sports facilities
1. Property owners within the Zimbali Lakes Resort that are SILVER MEMBERS are entitled to become PLATINUM MEMBERS (upgrade from SILVER MEMBERSHIP).
2. A PLATINUM MEMBER will pay a JOINING FEE (varies according to number of beds), which amount shall be subject to increase from time to time.
3. PLATINUM MEMBERS shall pay full ANNUAL SUBSCRIPTIONS to the ZLSC.
4. PLATINUM MEMBERS shall be entitled to a 50 %( fifty percent) discount on green fees.
5. PLATINUM MEMBER shall be entitled to use all of the facilities of the ZLSC subject always to the RULES AND REGULATIONS pertaining thereto.
6. The spouse and minor children of a PLATINUM MEMBER shall be entitled to use and enjoy the facilities of the ZLSC on the same basis as applicable to a GOLD MEMBER. The spouse of the PLATINUM MEMBER shall be entitled to “sign on” guests but the minor children of the PLATINUM MEMBER shall not be entitled to “sign on” guests.
7. The spouse and up to two minor children of a residential PLATINUM MEMBER shall be entitled to enjoy the special benefit of 50 %( fifty percent) discount on the green fees that would otherwise be payable by persons who are not PLATINUM MEMBERS, for playing golf at the ZLSC’s golf course. Any other minor children as well as the guests of the PLATINUM MEMBER shall pay full green fees. The nominations shall be capable of being amended on an annual basis in accordance with the RULES AND REGULATIONS from time to time of the ZLSC.
8. PLATINUM MEMBERSHIP also includes the following benefits:
• MEMBERSHIP of all sports sections (sports fields, gym, tennis, bowls, squash, etc. etc.)
• Discount (at least 20%) at all food and beverage outlets within the ZLSC and Lakes golf operations
• Discount on all golf academy packages to include
➢ Golf lessons
➢ Golf clinics
➢ Range balls at MEMBER rates
• Preferential rates at selected IFA facilities in Zimbali (Coastal & Lakes)
1. Property owners within the Zimbali Lakes Resort that are SILVER MEMBERS are entitled to become GOLD MEMBERS (upgrade from SILVER MEMBERSHIP).
2. A GOLD MEMBER will pay a JOINING FEE (varies according to number of beds in certain sectors), which amount shall be subject to increase from time to time.
3. GOLD MEMBERS shall pay ANNUAL SUBSCRIPTIONS to the ZLSC.
4. GOLD MEMBERS shall be entitled to use all of the facilities of the ZLSC including the golf facilities, subject always to the RULES AND REGULATIONS pertaining thereto.
5. GOLD MEMBERS shall not be entitled to a discount on green or cart fees, but are entitles to discounts in any of the non-golfing sporting sections.
6. The spouse and minor children of a GOLD MEMBER shall not be entitled to use and enjoy the facilities of the ZLSC on the same basis as applicable to a GOLD MEMBER. The spouse or minor children of the GOLD MEMBER shall not be entitled to “sign on” guests.
7. The spouse and minor children of a GOLD MEMBER shall not be entitled to enjoy any discount on the green or cart fees that would otherwise be payable by persons who are not GOLD MEMBERS, for playing golf at the ZLSC’s golf course. Any spouse, minor children as well as the guests of the GOLD MEMBER shall pay full green and cart fees.
1. All residents of the Zimbali Lakes Resort shall be required to have SILVER MEMBERSHIP of the ZLSC as a minimum.
2. A SILVER MEMBER shall be required to pay a JOINING FEE (varies according to number of beds in certain sectors), which amount shall be subject to increase from time to time.
3. A SILVER MEMBER shall be liable for the payment of ANNUAL SUBSCRIPTIONS to the ZLSC (varies according to number of beds in certain sectors), which amount shall be subject to increase from time to time.
4. A SILVER MEMBER shall not be entitled to MEMBERSHIP of the golf or any sporting sections of the ZLSC or to any discount on green fees or fees related to any other sporting facilities of the ZLSC.
5. A SILVER MEMBER shall be entitled to the use and enjoyment of restaurant and bar facilities, the lounges and general recreational facilities including the swimming pool, cart paths and forest walks, subject to any applicable RULES AND REGULATIONS of the ZSC and shall be entitled to any discount on fees related to any of these facilities of the ZLSC.
6. The spouse and minor children of a SILVER MEMBER shall be entitled to use and enjoy the facilities of the ZSC on the same basis as applicable to the SILVER MEMBER through whom they derive their said rights. They shall be entitled to “sign on” visitors but shall not enjoy any discount on green fees.
1. FOUNDER MEMBERS will initially be restricted to 20 persons only, but may be extended to further persons at the discretion of the PROPRIETOR.
2. If the FOUNDER MEMBER is an artificial person, the FOUNDER MEMBER shall nominate 1(one) individual as the FOUNDER MEMBER. Nomination shall be capable of being changed from time to time but not more than 1(one) change in the nominated user during any calendar year.
3. If FOUNDER MEMBER is an individual, he is entitled to nominate another individual as the FOUNDER MEMBER but for not less than a calendar year.
4. FOUNDER MEMBERSHIP is transferable to a third party subject to the prior approval thereof of the PROPRIETOR.
5. In the case of an individual who is a FOUNDER MEMBER, it shall endure for the life time of the individual or for a period of 20(twenty) years, whichever is the longer and, where the FOUNDER MEMBER is an artificial person, for a period of 20(twenty) years.
6. Where the FOUNDER MEMBER is an individual who dies before the expiry of twenty years as from the time he first became a FOUNDER MEMBER, such FOUNDER MEMBER shall be entitled to bequeath his rights for the balance of the MEMBERSHIP period.
7. FOUNDER MEMBERS shall not be liable for the ANNUAL SUBSCRIPTIONS levied by the ZLSC from time to time.
8. No green fees shall be payable by FOUNDER MEMBERS.
9. FOUNDER MEMBERS are entitled to use and enjoy all of the facilities and amenities of the ZLSC including the golf course.
1. CORPORATE MEMBERS shall be artificial persons that have an interest in any property within ZLR who shall be entitled to nominate no more than 4 (four) individuals with the right to use and enjoy the benefits of the CORPORATE MEMBERSHIP.
2. A CORPORATE MEMBER is entitled to substitute its nominated user from time to time but not more than one substitution per CORPORATE MEMBER shall be allowed in each calendar year.
3. A CORPORATE MEMBER shall be required to pay a non-refundable JOINING FEE of R100,000 for a minimum of 5 years MEMBERSHIP, the fee subject to increase from time to time.
4. CORPORATE MEMBERS shall be required to pay ANNUAL SUBSCRIPTIONS to the ZLSC per nominated person, maximum 4 (four) persons.
5. The CORPORATE MEMBER’s nominated user shall be entitled to a minimum of 25%(twenty five percent) discount on green fees or such other discount rate as may be determined by the PROPRIETOR from time to time.
6. The nominated user of the CORPORATE MEMBER is entitled to use all of the golf facilities of the ZLSC only, subject always to the RULES AND REGULATIONS pertaining thereto.
7. A CORPORATE MEMBER shall not be entitled to sell or “hire out” his MEMBERSHIP.
8. CORPORATE MEMBERSHIP shall confer rights of use only upon the nominated user of the CORPORATE MEMBERSHIP and family and guest privileges shall not apply.
9. The maximum number of CORPORATE MEMBERSHIPs per artificial person shall be 4 (four) at any one time.
1. SILVER MEMBERSHIP is compulsory for all residential owners.
2. GOLD MEMBERSHIP is optional, in place of SILVER MEMBERSHIP and a GOLD MEMBER will enjoy additional benefits to as well as the benefits of a SILVER MEMBER.
3. PLATINUM MEMBERSHIP is optional, in place of GOLD or SILVER MEMBERSHIP and a PLATINUM MEMBER will enjoy additional benefits to as well as the benefits of a GOLD or SILVER MEMBER.
4. JOINING FEE is payable for PLATINUM, GOLD and SILVER MEMBERSHIP as applicable and non-refundable and may be reviewed in the future at the discretion of the PROPRIETOR.
5. Above rates are present day, i.e. will increase in sync with annual increases linked to and dependent on viability of golf course at PROPRIETOR discretion but not exceeding Zimbali Country Club rates unreasonably, or adjusted for inflation etc.
6. IFA constructs at its cost all amenities such as Gymnasium, Tennis, Bowls etc. and manages use thereof and related MEMBERSHIP cost for all owners.
7. IFA may be hosting noted tournaments, e.g. SA Open, Super Sport Shootout, etc. So “blackout periods” are applicable.
8. The earlier the success of the golf operation, the more successful the Zimbali Lakes Resort development will be and the above broad proposals are considered the ideal situation in making the Zimbali Lakes Resort development and ZLSC financially viable in the shortest period of time.
9. Golf estate developments like the Zimbali Lakes Resort need to ensure that the entire business is sustainable within the shortest period of time possible whilst protecting the integrity of all investors and business partners in perpetuity.
10. Access to the golf course and associated lifestyle benefits will broaden the market for potential buyers due to the diverse benefits that other developments do not offer. Re-sales with no guarantee of golf MEMBERSHIP is detrimental.
11. Separate study or habitable room is also regarded as a bedroom in categorizing the total number of bedrooms in a residential unit within certain sectors.
RULES AND REGULATIONS
1.1 The Zimbali Lakes Sports and Leisure Club (ZLSC) is a privately owned facility which will consist of a number of sporting facilities to be established on the Zimbali Lakes Estate from time to time by the PROPRIETOR for its sole benefit.
1.2 The ZLSC shall be non-political and non-sectarian.
1.3 The ZLSC is established for the purpose of ensuring access to the Zimbali Lakes Sports and Leisure Club facilities situated on the Zimbali Lakes Estate.
1.4 The ZLSC has been forxxx xx promote, advance, protect and foster all sporting activities on the Zimbali Lakes Estate and to bring about and maintain close co-operation between its Members.
1.5 The PROPRIETOR intends (but is not obliged) to create the following sporting facilities within ZLSC. An 18 hole golf course, driving range and golf academy, tennis courts/academy, gym, equestrian facilities, soccer/rugby field, cricket nets, squash, archery, bowling lawns, cycling trails, walking trails and all ancillary sporting facilities situated on the Zimbali Lakes Estate which will be owned by the PROPRIETOR. The PROPRIETOR has agreed to establish the ZLSC for the use of the sports facilities by Members to whom certain usage rights will be granted. The ZLSC shall be owned and operated by the PROPRIETOR, who may, from time to time, appoint such professional managers, as it deems fit.
2.1 In these Rules and Regulations –
2.1.1 article headings are for convenience and are not to be used in its interpretation;
2.1.2 unless the context indicates a contrary intention an expression which denotes:-
22.214.171.124 any gender includes the other gender;
126.96.36.199 the singular includes the plural and vice versa;
2.1.3 unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a Saturday, Sunday or Public Holiday, the next succeeding business day;
2.1.4 words and expressions defined in any article shall, unless the application of any such word or expression is specifically limited to that article, bear the meaning assigned to such word or expression throughout these Rules and Regulations.
2.2 In these Rules and Regulations, unless the context clearly indicates a contrary intention, the following expressions bear the meaning assigned to them below:-
2.2.1 ANNUAL SUBSCRIPTION means the amount paid annually by Members as set out in article 8 and shall be determined by the PROPRIETOR.
2.2.2 APPEAL COMMITTEE means a sub-committee comprising of the Chairman or Vice-Chairman, who shall act as a chairperson and 2 (two) Members who are not Committee Members and who are willing to serve on the Appeal Committee, selected by the Committee from a panel of 5 (five) Members. The Committee shall nominate the panel at its first meeting after the annual Report Back meeting or at the first subsequent Committee meeting.
2.2.3 CHAIRPERSON OF THE COMMITTEE means that Member of the Committee who is appointed by the PROPRIETOR as such from time to time at the first Committee meeting after the Annual Report Back Meeting or at any subsequent meeting of the Committee.
2.2.4 ZLSC shall mean the Zimbali Lakes Sports and Leisure Club.
2.2.5 COMMITTEE shall mean the Committee established in terms of article 10.
2.2.6 THE DEVELOPMENT shall mean the Zimbali Lakes Estate.
2.2.7 DISCIPLINARY COMMITTEE means a sub-committee constituted under Article 16 comprising of the Chairman or the Vice-Chairman, one of whom shall act as chairperson, and at least two other Members of the Committee. The main objects of the Disciplinary Committee shall be to conduct such disciplinary hearings as may be necessary, to reach a verdict and to take such action as may be appropriate in respect of any alleged breach by a Member, or any other party, of these Rules and Regulations or of the Rules.
2.2.8 IFA means IFA Zimbali Hotel and Resorts (Proprietary) Limited, Registration Number 2003/024373/07, its successors in title or any consolidated company of IFA.
2.2.9 JURISTIC PERSON means a company, close corporation, partnership or trust, other than a Corporate Member, which is a Member of the Club and has been duly admitted as such in terms of the Rules and Regulations.
2.2.10 MEMBER shall mean members as determined in article 6.
2.2.11 MEMBERSHIP COMMITTEE means a sub-committee comprising of at least three Committee Members appointed by the PROPRIETOR, of which one shall be the Chairperson, the principal objects of which shall be to make recommendations on all matters pertaining to Membership of the ZLSC to the Committee, and to consider and, subject to appeal to the Committee, approve or reject all applications for Membership or nomination of Members.
2.2.12 MEMBERSHIP means Membership of the ZLSC with all the rights, duties, obligations attached to each category of Membership under these Rules and Regulations.
2.2.13 PROPRIETOR shall mean IFA or its successors in title.
2.2.14 REPORT BACK MEETING shall mean a meeting convened by the PROPRIETOR for all Members.
2.2.15 RULES mean the rules made by the Committee as provided for in article 12 by Members in the Report Back Meeting.
2.2.16 RULES AND REGULATIONS means these Rules and Regulations to the ZLSC.
2.2.17 VICE-CHAIRPERSON OF THE COMMITTEE means the Member of the Committee who is xxxxxxxxx xx xxx XXXXXXXXXX.
0.0.00 XXXXXXX XXXXX ESTATE means the Zimbali Lakes Estate.
3.1 The name of the Club shall be the “Zimbali Lakes Sports and Leisure Club” (ZLSC), and may only be changed with the approval of the PROPRIETOR.
3.2 If any article of these Rules and Regulations or part thereof is found by any Court of competent jurisdiction or an arbitrator to be defective or unenforceable for any reason whatsoever, the remaining articles shall continue to be of full force and effect.
4 SPORTING CODES AND RULES
4.1 All sporting activities/tournaments and events will be held under the rules regulating the code of that sport.
4.2 The ZLSC accepts and is bound by the Rules of Golf and The Rules of Amateur Status together with such amendments or additions thereto as may from time to time be adopted by the Royal and Ancient Rules Limited and the decisions which it may from time to time take on the interpretation of the Rules of Golf and the Rules of Amateur Status.
4.3 The ZLSC shall be affiliated to the various golfing and other sporting associations. The ZLSC shall abide by and adhere to the rulings and decisions falling within the object and scope of these constitutions of the various Bodies which they may from time to time issue.
4.4 The ZLSC shall pay any affiliation fees due to such bodies, and shall recover such fees and/or levies from the Member of the relevant Section/Sport.
5 FINANCIAL YEAR
5.1 The financial year of the ZLSC shall be from 1st January in any particular year to the last day of December of the immediately following year.
5.2 All revenue from sporting activities, joining fees, subscriptions, food and beverage and any other activity of the ZLSC shall belong to the PROPRIETOR who shall also be responsible for such maintenance and up keep of the facilities as the PROPRIETOR in it’s sole discretion may determine.
6 MEMBERSHIP/PLAYING OF USE RIGHTS
6.1 Members shall be granted membership and/or playing use rights in respect of the ZLSC in accordance with the attached Annexure marked “A” setting out the various membership categories and indicative fees. The fees shall be determined by the PROPRIETOR in its sole discretion and shall escalate at least annually.
6.2 No membership or the right to a membership or any entitlement in terms thereof may be sold and no membership may be transferred except as provided for in these Rules and Regulations.
6.3 The PROPRIETOR may unilaterally change the allocations of membership and/or playing rights in respect of the ZLSC, from time to time, as it deems fit.
6.4 Application for membership
6.4.1 Application for membership shall be in writing on the approved form and shall contain the full name, address and occupation of each applicant, with such further details as the PROPRIETOR may require, and shall be signed by the applicant.
6.4.2 The signature by the applicant of the application form shall be deemed as acknowledgement that he, or she, will be bound by these Rules and Regulations and the rules and by-laws of the ZLSC.
6.4.3 On application for membership the applicant must nominate a natural person/s as its nominee to enjoy rights of membership according to the relevant membership category.
6.5 The PROPRIETOR may grant temporary membership for various periods of time or permanent membership to persons who are not residents or owners in the Zimbali Lakes Estate. The terms relating to such membership including the joining fees and subscriptions shall be determined by the PROPRIETOR from time to time and such members shall be bound by the provisions of these Rules and Regulations.
7 JOINING FEES AND USAGE RIGHTS
7.1 The joining fee for Members shall be such sum as the PROPRIETOR may from time to time determine. The joining fees and annual subscription (usage fees) set out in Annexure “A” are initial indicative figures only and shall be determined by the PROPRIETOR from time to time including any escalations thereof.
7.2 The Committee will determine competition and tournament fees.
7.3 The PROPRIETOR shall determine usage fees for the ZLSC facilities including field/court hire, green fees and cart hire from time to time
8.1 The liability of a Member is limited to the payment of his, or her joining fees and, unpaid subscriptions and any other money due by the Member save that a Member shall be personally liable and responsible for any act which causes damage or injury to other persons or property including any such damage or injury arising from the striking of golf balls.
8.2 The annual subscriptions for all Members shall be such sums as the PROPRIETOR may, from time to time determine, and the figures set out in Annexure “A” are initial indicative figures only and will escalate at least annually.
8.3 Subscriptions shall be payable annually in advance, and such subscriptions shall be payable from the 1st day of January each year. Special arrangements may be made with the PROPRIETOR to pay subscriptions monthly by debit order.
8.4 Applicants elected as members during any year shall only be obliged to pay a pro-rata share of the subscription for that year or such amount as the Committee may determine.
8.5 If any member has not paid the subscription or any other monies due within a period of 30 days after the due date thereof, such member will be advised in writing and if such amount has not been paid within 15 days from the date of the aforesaid letter, then the Committee shall be entitled to suspend or terminate such membership and the Member shall not continue as a Member of the ZLSC and all rights as a Member shall be suspended while these amounts remain unpaid and shall not be entitled to any usage rights. Such Member may be re-instated by the Committee at its discretion and on such terms as the Committee may decide. Nothing herein contained shall preclude the ZLSC from instituting whatever legal proceedings may be deemed necessary to recover any monies due.
8.6 A minute of the Committee meeting stating that any Member subject to the notice referred to in the preceding sub-paragraph, has had such notice duly sent, shall be conclusive evidence that such notice was duly and properly given.
8.7 If a Member ceases to be an owner in the Development his/her membership shall automatically terminate. Any new owner shall be obliged to make application for Membership in terms of Article 6.4.
8.8 Any contribution to the ZLSC for which members are liable, such as levies, annual subscriptions or the like, shall only become payable in respect of issued memberships as and when they are allocated to end buyers of individual properties.
9 MANAGEMENT OF THE AFFAIRS OF THE CLUB
9.1 The ZLSC shall be governed and its affairs administered by the PROPRIETOR who shall be entitled to appoint the Manager at its sole discretion.
9.2 The PROPRIETOR shall appoint the Club Captain/s.
10 APPOINTMENT OF COMMITTEE
10.1 The Committee shall be appointed by the PROPRIETOR or its nominee.
10.2 A Committee Member may be summarily removed from occupying office in any Committee of the ZLSC, by the PROPRIETOR without the need to furnish reasons.
10.3 The first committee shall be appointed by the PROPRIETOR, and shall remain in office until the first Report Back Meeting of the ZLSC.
11 MEETINGS OF THE COMMITTEE
11.1 The Committee shall meet not less than four times per financial year, and shall provide for proper minutes to be kept.
11.2 Seven clear days notice shall be given of all meetings of the Committee, unless all Members of the Committee agree to accept shorter notice.
11.3 At all meetings of the Committee, half of the Committee plus one shall constitute a quorum.
11.4 The Committee shall have full power to fill such vacancies amongst their number as may occur during their period of office.
11.5 The Chairperson, or in his absence, the Vice Chairperson of the Committee shall chair all meetings of the Committee.
11.6 The Committee shall have the power to appoint sub-committees for any purpose and to delegate to these sub-committees, such powers and functions as may be deemed desirable.
11.7 The Chairperson shall be ex-officio a Member of all sub-committees in which either the Chairman or vice Chairman have not been elected as a committee member.
12 POWERS OF THE PROPRIETOR
The entire management and control of the ZLSC shall be vested in the PROPRIETOR who shall be entitled to exercise the following powers and/or delegate same or some of them to Managers or appropriate Committees; namely:-
12.1 To process applications for membership of the ZLSC, and administer all matters incidental thereto, such as entrance and subscription fees.
12.2 The power to deal with any Member who shall owe money to the ZLSC in the same manner as that laid down with regard to arrear subscriptions.
12.3 To open and operate bank or savings accounts in the name of the ZLSC and to draw, accept, endorse, make and execute bills of exchange, promissory notes, cheques and other negotiable instruments, operate such accounts electronically and all as may be connected with the business of the ZLSC.
12.4 The power to appoint sub-committees for such purpose as the PROPRIETOR may deem fit, to delegate to such sub-committees any of the powers and duties of the Committee itself, and to dissolve such sub-committees.
12.5 To organise and run the sporting competitions held at the ZLSC, including determining the entry fee for such competitions and obtaining sponsorships.
12.6 To administer handicapping of Members and affiliation to the SAGU, WGSA and the Union.
12.7 To enter teams in such leagues as the Committee may decide.
12.8 To make such recommendations relating to the maintenance and upkeep of the golf course and other facilities, as well as the administration of the Clubhouses and other sporting facilities, as it may deem fit.
12.9 To co-opt, at their discretion, a Member or Members for any purpose pertaining to the running of the ZLSC.
12.10 To make, vary and repeal by-laws, policies and guidelines for the regulation of the affairs of the ZLSC, its officials and employees and amend these Rules and Regulations as it sees fit.
12.11 To appoint the auditor.
12.12 To make staff appointments, suspension and discharge of employees of the ZLSC and fix remuneration and terms of employment.
12.13 To institute, conduct, defend, compound or abandon any legal proceedings by or against the ZLSC or its officers, or otherwise concerning the affairs of the ZLSC.
12.14 To acquire for the ZLSC any movable property calculated to benefit the ZLSC.
12.15 To sell, alienate or deal with the movable property assets of the ZLSC as it shall deem expedient in the interests of the ZLSC.
12.16 To appoint such attorneys, agents, officers and employees for permanent, temporary or special services as it may think fit, and to invest them with such powers as it may think expedient, and to determine their duties and fix, vary and pay their salaries or emoluments (if any) and to require security in such instances and to such amounts as it thinks fit, and to suspend or discharge any such persons as it may decide.
12.17 To make and give receipts, releases and other discharges for monies payable to the ZLSC, and issue invoices for the claims and demands of the ZLSC, duly signed by a person authorised to act on behalf of the ZLSC.
12.18 To grant consent to persons, who are not Members, to use the ZLSC's property, or enter any grounds or buildings managed or controlled by the ZLSC, upon such terms as it may think fit, or to refuse such consent as it may determine in its discretion.
12.19 To establish and maintain pension or provident funds for the benefit of officials, employees, ex-officials and ex-employees of the ZLSC, and to that end to make such capital and annual contributions as it deems fit.
12.20 To enter into reciprocity arrangements with other Clubs or sporting bodies.
13 REPORT BACK MEETINGS
13.1 A Report Back Meeting to Members (of which not less than fourteen days’ notice shall be given) shall be called as and when deemed necessary by the PROPRIETOR at such time and place as the PROPRIETOR may determine. A notice pinned on the Clubhouse notice board shall be sufficient notice in terms of this Article.
13.2 The business to be transacted at the Report Back Meeting of Members shall be:
13.2.1 To confirm the minutes of the previous Report Back Meeting.
13.2.2 To note the joining fees and subscriptions.
13.2.3 To receive the report of the Committee on the affairs of the ZLSC.
13.2.4 To consider any business of the ZLSC which is brought under the consideration by the report of the Committee.
13.2.5 To consider any other business tabled by the PROPRIETOR.
14 SUSPENSION AND EXPULSION OF MEMBERS
14.1 If any Member, in the opinion of the Committee, commits any breach of these Rules and Regulations or of the rules or by-laws of the ZLSC, or is guilty of conduct unbecoming of or prejudicial to the ZLSC’s interests, whether within or outside the precincts of the ZLSC, the Committee shall have the power after complying with 14.2:
14.1.1 To caution such Member; or
14.1.2 To expel such Member; or
14.1.3 To suspend such Member for such period and upon such terms as the Committee may deem fit.
14.2 Before acting under 14.1 the Committee shall give the Member concerned an opportunity to make written representations to the Committee, alternatively to call upon such Member to appear before the Committee and there explain his or her conduct and should such Member fail to make written representations or to appear before the Committee, to expel or otherwise deal with such Member as provided in these Rules and Regulations.
15 RIGHTS, DUTIES AND PRIVILEGES OF MEMBERS
15.1 All Members shall have the rights, duties, obligations and privileges as set out in these Rules and Regulations, subject to such limitations as are set out in these Rules and Regulations, be entitled to make use of all the facilities and amenities of the ZLSC at all times, subject to any other restrictions imposed by these Rules and Regulations, or by-laws, or the Rules made in terms thereof, or by the Committee.
15.2 A Member may nominate a spouse or common law partner as a “Co-Member” and such spouse shall have all the rights which a Member enjoys. In addition minor children of a Member shall enjoy usage rights as determined by the PROPRIETOR from time to time.
15.3 All nominated Members shall, subject to such limitations set out in these Rules and Regulations or bylaws or Rules, have the right to serve on any Committee of the ZLSC to which such Member may be elected.
15.4 All Members shall be subject to any conduct, security, traffic or safety regulations on the Development imposed by the PROPRIETOR.
15.5 All Members shall provide the ZLSC by written notice with their physical, postal and e-mail addresses as set out herein and the onus is on Members to ensure that the ZLSC has their current address.
15.6 All Members shall be bound by the terms of these Rules and Regulations and any by-laws and Rules made in terms hereof.
16.1 Should any Member in the opinion of the Disciplinary Committee, commit any breach of these Rules and Regulations, Rules and/or by-laws of the ZLSC, fail to pay the Annual Subscription, special levies, or any other charges due and payable to the ZLSC, or be guilty of improper, dishonest, un- sportsmanlike, offensive, unseemly, or objectionable conduct, or conduct likely to reflect on or discredit the ZLSC or its Members as a group, or of
conduct that is prejudicial to the interests or reputation of the ZLSC, whether within the ZLSC’s premises or outside them and in whatever form or manner, the Disciplinary Committee shall have the power in its discretion:–
16.1.1 To reprimand such Member;
16.1.2 To deprive such Member of all or any rights and privileges of membership for such period as the Disciplinary Committee may deem fit;
16.1.3 To suspend such Member for such period as the Disciplinary Committee may deem fit;
16.1.4 To impose a fine on such Member for such amount as it may deem fit which shall be a debt owing to the ZLSC and payable on demand, provided that the maximum fine which may be imposed shall not exceed an amount equivalent to 20% (twenty) percent of that Member’s Annual Subscription;
16.1.5 To call upon a Member in writing to resign. If he or she fails to resign within 7 (seven) days the Disciplinary Committee may expel such Member from the ZLSC;
16.1.6 To declare such Member for such period as the Disciplinary Committee shall deem fit ineligible for election or re-election to the Committee or the ZLSC or any sub-committee of the Committee;
16.1.7 To publish the names of Members against whom disciplinary action has been taken in such form and place as the Committee in its sole discretion may deem fit and appropriate, including but not limited to publication in any newsletter issued by the Committee or the ZLSC;
16.1.8 To publish names of Members who, having been sent a demand to pay, fail to pay their Annual Subscription or any other amount within 60 (sixty) days of it becoming due, in such form and place as the Committee in its sole discretion may deem fit and appropriate.
16.2 The powers set out in 16.1 may be exercised only after the Members affected by such disciplinary action have been given the opportunity to make oral or written representations to the Disciplinary Committee within 30 (thirty) days after being notified by the Disciplinary Committee of the impending disciplinary action. After considering the representations by the Member affected, the Disciplinary Committee must notify the Members immediately in writing of its decision.
16.3 A Member shall have the right of appeal to the Appeal Committee against any such disciplinary action taken against that Member. Such an appeal shall be lodged in writing with the Appeal Committee within 28 (twenty eight) days of the notice of decision of the Disciplinary Committee. If so requested in writing by the Member appealing, the Member shall be given an opportunity to make oral or written representation to the Appeal Committee by such date stipulated by the Appeal Committee. The Appeal Committee may confirm or reverse all or part of the decision of the Disciplinary Committee or refer the matter back to the Disciplinary Committee for further deliberation and decision and must notify the Member in writing of its decision within 14 (fourteen) days of the decision.
16.4 The procedure set out in article 16.2 shall not apply in respect of disciplinary action contemplated in articles 16.1.1 and 16.1.8 or to Members who have failed to pay any amounts referred to in the introduction to article 16.1 within 60 (sixty) days of becoming due. Any disciplinary action taken in respect of late payment of any nature may extend beyond the actual date of payment of the total amount due.
17.1 The liability of any Member shall be limited to the amount owed by the Member to the ZLSC.
17.2 The ZLSC shall have no liability to any Member or his or her guests in respect of any loss or damage of any nature whatsoever, including without limitation in respect of any property which may be lost, damaged or stolen on or from the ZLSC premises or in relation to the death of or injury to any person.
17.3 The Member further indemnifies ZLSC and the PROPRIETOR against any act or omission on the part of the Member which causes damage to ZLSC or any third party arising out of the use of any of the ZLSC facilities. In particular the Member indemnifies the ZLSC in respect of any damage arising out of his or his guests striking of golf balls either within the golf course or as same may stray outside thereof.
18 USE OF CLUBHOUSE BUILDINGS
18.1 It is recorded that the Clubhouses together with the associated commercial rights is owned by the PROPRIETOR. The use of the Clubhouse is governed by terms and conditions stipulated by the PROPRIETOR from time to time and used at the Member or any guest at their sole risk.
19 ALTERATIONS TO THE GOLF COURSE
19.1 Only the PROPRIETOR may make changes or alterations to the golf course and other sporting facilities.
20 AMENDMENT OF THE RULES AND REGULATIONS
20.1 Alterations of these Rules and Regulations or name change of the ZLSC may be made by the PROPRIETOR at its discretion.
20.2 Whenever any addition or alteration is made to these Rules and Regulations, a copy thereof shall be supplied to each Member on application.
21.1 These Rules and Regulations and rules and by-laws as amended from time to time, shall be binding on all Members.
21.2 All notices posted on the notice board or sent to the e-mail address on record for each member shall be considered due notice to every Member.
21.3 Members shall communicate any change of address, e-mail address or cell phone number to the secretary who shall keep an official register of all Members and their addresses.
21.4 One copy of these rules shall be supplied to each Member of the Club free of charge on application.
22.1 No caddies shall be allowed on the Zimbali Lakes Golf Course, except for special events, and then only with the prior written approval of the PROPRIETOR.
23 TOURNAMENTS AND EVENTS
23.1 It is recorded that the ZLSC and/or the PROPRIETOR shall stage music concerts, events or golf and other sporting tournaments from time to time and all Members acknowledge that their playing rights in respect of the golf course or affected facilities, shall be withheld for the duration of such event or tournament.
24.1 The PROPRIETOR shall be entitled to cede its rights under these Rules and Regulations either partially or in full and in respect of the various facilities making up the ZLSC and/or sell/dispose of the ZLSC assets either wholly or in part. Any disposal of the whole must be accompanied by a cession and assignment of the PROPRIETOR’S rights and obligations hereunder to the transferee.