“SOUTH AFRICAN LITCHI GROWERS’ ASSOCIATION NPC” (SALGA)

The headquarters of the Association shall be at Tzaneen or at such other place or places as the Board of Directors may decide

1. The headings of the clauses in this MOI are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this MOI nor any clause of this Unless a contrary intention clearly appears:
2.  
3. words importing;
4.  
5. any gender includes all genders;
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7. the singular includes the plural and vice versa; and
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9. natural persons include created entities (corporate or unincorporated) and the state and
10. vice versa;
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12. the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:
13. “the Act” or “Companies Act” means the Companies Act, 71 of 2008;
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15. “Associate Members” has the meaning ascribed thereto in the Member Schedule;
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17. “Auditor” means the Auditors of the Company from time to time;
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19. “the Board” means the Board of Directors of the Company from time to time;
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21. “Business Day” means any day, other than a Saturday, Sunday or official public holiday in the Republic of South Africa;
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23. “Bye-Laws” means the bye-laws promulgated by the Company (acting through its Board) from time to time, provided the Bye-Laws in existence as at the date of adoption of this MOI are as contained in Annexure C;
24. “the Commission” means the Companies and Intellectual Property Commission established by section 185 of the Act;
25. “the Commissioner” means the Commissioner of the South African Revenue Services;
26.  
27. “Director” means a member of the Board of the Company, as contemplated in section 66 of the Act, or an alternate Director of the Company, and includes any person occupying the position of a Director by whatever name designated;
28. “Electronic Communications and    Transactions   Act”    means   the   Electronic

1.  
2. Communications and Transactions Act, No 25 of 2002;
3.  
4. “Growers” means Members who are litchi producers;
5.  
6. “Grower Members” has the meaning ascribed thereto in the Member Schedule;
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8. “Honorary Life Members” has the meaning ascribed thereto in the Member Schedule;
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10. “the Income Tax Act” means the Income Tax Act 58 of 1962;
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12. “Member/s” means a person who holds a membership in, and specified rights in respect of the Company, as contemplated in schedule 1 of the Act read with the provisions of this MOI;
13. 1.1.21                    “Member Schedule” means the schedule attached hereto as Annexure A setting out the
14. different classes of Members;
15.  
16. “Member in Good Standing” means a Member who has no outstanding Membership Fees and whose financial obligations (if any) towards the Company are discharged in full;
17. “Litchis” means the fruit of Litchi chinensis,
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19. “Membership Fee” has means the fees payable in such quantity, frequency and on such conditions as determined by the Board in terms of the Bye-Laws from time to time (acting in the sole and absolute discretion), provided however that such determination (upon any revision or amendment being brought about by the Board) shall be published to the Members as soon as reasonably practically possible following such The Membership Fees as at the date of adoption of this MOI are as set out in Annexure B
20. “MOI” means the memorandum of incorporation of the Company;
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22. “Non-Profit Company” has the meaning ascribed to it in the Act;
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24. “Production region” means a geographical region as defined in clause 1 ;
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26. 1.1.28                    “Public Benefit Activity” or “PBA” means a public benefit activity as contemplated in
27. section 30(1) of the Income Tax Act;
28.  
29. “the record date” means the date set by the Board in order to determine which Members are entitled to (a) receive notice of Members’ meetings; and (b) decide any matter by written consent or electronic communication as contemplated in section 60 of the Act;
30. “the Republic” means the Republic of South Africa;
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32. “Rules” means the rules published by the Board as contemplated in clause 10 of this MOI;

1.  
2. “Section” refers to a section in the Companies
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4. Save as otherwise contained herein:
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6. a reference to a Section by number refers to the corresponding Section of the Companies Act, 2008 (as amended);
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8. words that are defined in the Companies Act, 2008 (as amended) bear the same meaning in this Memorandum of Incorporation as in that Act;
9. if the Act is amended at any time to confer any right or benefit on the Company, then this MOI shall be deemed to have been amended so as to result in the Company enjoying the full benefit of any such benefit to the
10.  
11. the headings to the respective clauses are for reference purposes only and shall not be taken into account in the interpretation of the
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13. Unless otherwise indicated herein, where any consent/approval is required for any act to be done by a party (including the Company and its Directors) such consent/approval shall be in writing and signed by that party or his authorised agent (acting on his written authority) whose consent/approval is
14.  
15. If notice is required or permitted to be given or published to any person, it is sufficient if the notice is transmitted electronically directly to that person in a manner and form such that the notice can conveniently be printed by the recipient within a reasonable time and at a reasonable cost.
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17. If this MOI requires a document to be signed or initialled by or on behalf of:
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19. a person, that signing or initialling may be effected in any manner provided for in the Electronic Communications and Transactions Act; or
20.  
21. two or more persons, it is sufficient if:
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23. all of those persons sign a single original of the document, in person or as contemplated above; or
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25. each of those persons signs a separate duplicate original of the document, in person or as contemplated in (h) above, and in such a case, the several signed duplicate originals, when combined, constitute the entire
26. If a manner of delivery of a document, record, statement or notice is prescribed in terms of this Memorandum of Incorporation for any purpose-
27.  
28. it is sufficient if the person required to deliver such a document, record, statement or notice

1.  
2. does so in a manner that satisfies all of the substantive requirements as prescribed herein; and
3. any deviation from the prescribed manner does not invalidate the action taken by the person delivering the document, record, statement or notice, unless the deviation materially reduces the probability that the intended recipient will receive the document, record, statement or notice or is such as would reasonably mislead a person to whom the document, record, statement or notice is, or is to be,

The aims and objectives of the Association shall be:

1. the collection, collation and distribution of information concerning the marketing and production of litchis;
2. to encourage the co-ordination of export and local marketing of litchis and to assist in the distribution of information to exporters
3. to make provision for the necessary quality requirements and the application thereof in conjunction with the relevant State bodies;
4. to make recommendations concerning the handling and distribution of litchis;
5. to carry out research, to have research carried out and to co-ordinate such research concerning the marketing and production of litchis;
6. to increase the demand for litchis locally and overseas  by advertising, promoting and by such other means as the Association shall deem fit;
7. to collect funds by way of entrance fees, annual subscriptions and donations as well as levies on members’ fruit in terms of the constitution and bye-laws;
8. such income shall be used to defray administrative expenses and to further the objects of the Association;
9. to act as the official mouthpiece of the Litchi Growing Industry in all negotiations with State bodies and organised agriculture;
10. to lend money at the discretion of the board of directors to its employees or third persons, with or without security and to borrow monies in the interest of and for the benefit of the members and for the purposes thereof to bind the assets of the Association as security;
11. to insure any or all of the Association’s properties or assets or undertakings against risk of loss by fire, burglary, riot or other loss and to insure any employee or servant of the Association under any Fidelity Insurance Policy or against risk of loss of life or disablement or injury arising out of or in the course of such employment;
12. to invest and from time to time to re-invest the monies of the Association and or alter of vary such investments:  to receive and collect income, interest or rental:  to buy, sell, let and hire immovable property:  to maintain, repair and improve immovable property:  to cancel, cede and make over mortgage bonds and to institute and defend legal proceedings in any competent Court;
13. to engage and dismiss employees of the Association and to fix the terms of service and rates of remuneration of such employees;
14. to draw, make, accept, endorse, discount, execute and issue cheques, promissory notes, bills of exchange, bills of lading, debentures and other negotiable or transferable instruments;
15. to do all such other things as may be deemed incidental or conducive to the attainment of the aforegoing objects of any one of them.

The income property and monies of the Association from whatsoever source derived, shall be applied solely towards the promotion of the objects of the Association as herein set forth and no portion thereof shall be paid or transferred directly or indirectly by way of a dividend, bonus or otherwise by way of profit to the persons who are at the time or have been members of the Association, or to any other persons claiming through them, provided, however, that nothing herein contained shall prevent the payment in good faith of the out-of-pocket expenses of any officers, servants or members of the Association or the payment in good faith of remuneration to any person whomsoever in return for any services actually rendered to the Association.

Membership of the Association shall be limited to:

1. GROWER MEMBERS:
   Any person or entity engaging, in a proprietary capacity, in the commercial production of litchis.

2. ASSOCIATE MEMBERS:
   Any person or entity that receives litchis from growers for the purpose of preparing and packing for
   sale such litchis; and includes persons or entities that buy litchis from growers and / or act as agents

   for the sale of litchis, and act as agents or contractors for litchi processing.

3. AFFILIATE MEMBERS:
   Persons or entities that have an interest in the litchi industry, including but not limited to: litchi
   nurseries, agricultural advisors, wholesalers, retailers, equipment suppliers, researchers and
   educators or any persons who in the sole discretion of the Board should be afforded Membership.
   Affiliate Members may also include persons who are situated, resident or domiciled outside of South

   Africa.

4. HONORARY LIFE MEMBERS:
   Persons appointed by the Board (acting in their sole and absolute discretion) in recognition of special

   or extraordinary services rendered to the litchi industry.

5. SPECIAL MEMBERS:   

   Any person who, in the discretion of the Board (acting in their sole and absolute discretion), merits membership by virtue of special qualifications or experience, of value to the Litchi industry.

6. INTERNATIONAL MEMBERS:             

   Any person or entity situated, resident or domiciled outside of South Africa.

1. Application for membership shall be made in writing on the prescribed form accompanied by the entrance fee and subscriptions, provided for in the Bye-Laws, to the Management who in their sole discretion shall be entitled to accept or reject any such application;
2. A register of members shall be kept by the General Manager of the South African Litchi Growers’ Association

Only Grower and Non-Grower members, in good standing (i.e. members who have paid their subscriptions and levies in respect of the current period) and Honorary Members shall be eligible to hold any office in the Association or to vote at general meetings of the Association at which each such member shall be entitled to one (1)vote only, provided that Grower members, shall, in respect of the year following that in which they have grown more than 200 (TWO HUNDRED) levied tons of litchis, have one  additional vote in respect of every additional 200 (TWO HUNDRED) levied tons of litchis grown.  No member, duly authorised by proxy in writing shall be entitled to vote on behalf of more than two members of the Association not present at any meeting of the Association.

Membership of the Association shall terminate:

1. On the date that a members ceases to be qualified as provided for in paragraphs 6.1 and 6.2 above; or
2. On the expulsion and removal of a member from the register of members in terms hereof.

The entrance fees and subscriptions payable by members shall be those prescribed from time to time in terms of the Bye-Laws.

1. A member shall be entitled to resign at any time provided that he shall have notified the Association in writing of his intention so to do.
2. The Board of Directors shall be entitled to suspend or expel and remove from the register of members, any member who, without good cause:
   1. Breaches any of the provisions of this constitution and or the Bye-Laws of the Association, or
   2. fails to discharge his liability in respect of any monies due by him to the Association within 30 (THIRTY) days of the month end in which such monies become due.
3. Any suspension of membership shall be such period as Management may determine, during which period, the member affected shall not be entitled to exercise his voting rights or attend Association meetings.
4. Any such resignation, suspension or expulsion shall not thereby release such defaulting member from his liability to the Association and neither shall such resignation and or defaulting member be entitled to any refund of his entrance or subscription fee, or any part thereof.

The Board of Directors consist of 17 (SEVENTEEN) directors, who are members of the association and will consist of the following:

Area Directors (5)
One Director each of the following regions/areas:

• • Limpopo: Louis Trichardt, Levubu and Venda
  • Limpopo: Tzaneen and Hoedspruit
  • Mpumalanga: White River, Kiepersol,Nelspruit, Hazyview and Kangwane
  • Mpumalanga: (Onderberg) Malelane and Baberton.
  • Kwazulu Natal

Area Directors shall be elected by the members of that area, at the Annual General Meeting of the Association.

Co-operative Directors (3)
One Director nominated by the Co-operative in each area which has packed the greatest average volume of levied litchis over the immediate preceding two seasons, and of which Co-operative he is either a Director or the Manager, provided that the area in which such Co-operative serves, packs at least 10% of the litchi crop levied by the Association.

Non Grower Directors (5)
One director who is a Non-Grower member (or his nominee) for each area who personally or directly packs the minimum quantity of litchis prescribed in the Bye-Laws.

Additional Directors (3)
The Board of Directors shall appoint 3 Additional Directors to represent research, marketing or any other function as deemed necessary.

Managing Director (1)
A Managing Director who shall be appointed by the Board of Directors.

Apart from the Managing Director who shall be a paid employee of the Association and who shall hold office for such period as the Board of Directors may decide, all other Directors shall hold office for year, but shall thereafter be eligible for re-election or re-nomination.

Directors shall each have one vote at meetings of the Board of Directors and shall be entitled to nominate in writing an alternate Director to be present and to vote at meetings of the Board on his behalf.

The Board shall meet or confer at least once per year and as often and at such times as the Board may deem necessary for the despatch of business and may adjourn or otherwise conduct its proceedings in such a manner as it may determine.  Matters arising at any meetings shall be decided by a majority of votes and in the case of an equality of votes, the Chairman shall have a second or casting vote. A two thirds majority of the directors present at any meeting shall be required in respect of all fiscal matters to be decided upon by the board.  A member of the Board may and the Secretary, on the requisition of a member of the Board shall, at any time summon a meeting of the Board.

The Board shall ensure that proper minutes of all meetings are kept and the minutes of each meeting are submitted for approval to the next meeting of the Board for approval and thereafter be signed by the Chairman.

The Board shall in addition ensure that accurate records are kept of all financial and contractual transactions.

A Chairman and Vice-Chairman of the Board of Directors shall be nominated by the Board at their first meeting.

The Board shall be entitled to expel from the Board of Directors any Director who without good cause is absent from 2 consecutive meetings of the Board.

The quorum necessary for the transaction of the business of the Board shall be 40% of the elected Board Members.

The Board of Directors shall have the following powers:

1. The business of the Association shall be administered by the Board who may exercise all such powers of the Association as are not by these presents required to be exercised by the Association in general meeting, subject nevertheless, to such directions as may from  time to time be given to the Board by the Association in general meeting, but no direction given by the Association in general meeting shall  invalidate any prior act of the Board which would have been valid if such direction had not been given.
2. The Board shall appoint a Managing Director / General Manager for such period as the Board may determine to administer and manage the day to day affairs of the Association.
3. The board may delegate any of its powers to sub-committees, consisting of such members or member or such other persons as it may deem fit.  Any sub-committee, shall in the exercise of the powers so delegated, conform to any directions that may have been given to it by die Board and shall, subject to such directions, conduct its proceedings in such manner as it may itself determine.
4. The Board shall have power to frame the Bye-Laws in terms of this Constitution providing for the election and qualifications of members and  Directors of the Association, the rates of subscriptions and entrance fees, the qualifications for membership, the use of the Associations property and facilities, the formation, control and management of the business and affairs of the Associations generally and make amendments and additions thereto from time to time;
5. The Boards shall have the power to suspend or terminate a member’s membership on the grounds set out herein and in the Rules.  Such expelled or suspended member shall have the right to appeal to the general meeting of members in the area in which he conducts his Litchi business.

1. The annual and Special General Meetings of the Association shall be convened by notice in writing to each member, at least 14 (FOURTEEN) days prior to the date of the meeting, specifying the date, place, time and agenda of the meeting:
   1. The Annual General Meeting shall be held not later than two months after the 30 September in each year, to deal with the following matters:-
   2. To receive and consider the annual report of the Chairman of the Board;
   3. To receive and approve the annual financial statements and budget for the ensuing year;
   4. To elect Directors as provided for in Clause 12 above or to take note of Area Directors elected at separate meetings held in each area prior to the Annual General Meeting.
   5. To consider matters of general interest.
2. A Special General Meeting may be called by the Chairman and one member of the Board or at the request of three members who shall deliver such a request to the Managing Director in writing and the Special General Meeting so called shall only deal with the specific matter for which the meeting was called or requested;
3. No business shall be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business, which quorum, unless otherwise determined by the Association, shall be 5% of the total number of members appearing in the membership register on the last day of the month preceding the meeting;
4. Should there not be a quorum as aforesaid further notice of 14 (FOURTEEN) days shall be given of a general meeting and if within one half hour of the time appointed for such meeting a quorum is not present, the members then present shall form a quorum.
5. At any general meeting a resolution put to the vote of the meeting shall be decided by a show of hands.  A declaration by the Chairman of the meeting that a resolution has been carried or lost and an entry to that  effect in the minute book of  the Association shall be conclusive evidence of the fact, without proof of the actual number or proportion of the votes recorded in favour or against such resolution;
   1. In the case of an equality of votes whether on a show of hands or on a poll, the Chairman of the meeting at which the voting takes place shall be entitled to a second or casting vote.

No alteration to the Constitution shall be made, except at a General meeting, of which at least 28 (TWENTY EIGHT) days notice in writing specifying the proposed amendment to the Constitution, has been sent to all members and unless the amendment be approved by a majority of two thirds of those present and voting at the meeting.

The Association shall keep proper books of account which shall, during business hours, be available for inspection at the Headquarters of the Association, to any member who shall be entitled to make copies of or extracts therefrom.  The financial year of the Association shall commence on the 1^st day of OCTOBER in each year.

The association shall be dissolved if at least two thirds of those entitled to vote at the Annual General Meeting, vote in favour of such dissolution. No motion for dissolution of the association shall be considered unless all members are advised thereof at least three months prior to the consideration of the motion;

If upon liquidation or dissolution of the Association, there remains any property whatsoever, after the satisfaction of all the debts and liabilities of the Association, it shall not be paid to or distributed amongst the members of the Association, but shall be given or transferred to some other institution or institutions having objectives similar to those of the Association to be determined by the members of the Association at or before the time of the dissolution

The South African Litchi Growers’ Association (referred to hereafter in the sub clauses of this clause 21 as SALGA) must have a committee, board of management or similar governing body consisting of at least three (3) persons, who are not connected persons in relation to each other, to accept the fiduciary responsibility of SALGA;

1. No single person may directly or indirectly control the decision–making powers relating to SALGA;
2. SALGA may not directly or indirectly distribute any of its funds or assets to any person other than in the course of furthering its objectives;
3. SALGA is required to utilise substantially the whole of its funds for the sole or principal object for which it has been established;
4. No member may directly or indirectly have any personal or private interest in SALGA;
5. Substantially the whole of the activities of SALGA must be directed to the furtherance of its sole or principal object and not for the specific benefit of any individual member or minority group;
6. SALGA may not have a share or interest in any business, profession or occupation which is carried on by its members;
7. SALGA must not pay to any employee, office bearer, member or other person any renumeration as defined in the Fourth Schedule of the Income Tax Act which is excessive having regard to what is generally considered reasonable in the sector and in relation to the service rendered;
8. Substantially the whole of SALGA’s funding must be derived from its annual or other long term members or from an appropriation by the government of the Republic of South Africa in the national, provincial or local sphere;
9. SALGA must as part of its dissolution transfer its assets to:
   1. Another entity approved by the Commissioner or the South African Revenue Service in terms of Section 30(B) of the Income Tax Act.
   2. A Public Benefit Organisation approved in terms of Section 30.
   3. An institution, board or body which is exempt from tax under Section 10(1)(cA)(i); or
   4. The government of the Republic of South Africa in the national, provincial or local sphere.
10. The persons contemplated in Article 21.1 above must submit any amendment of this constitution to the Commissioner of the South African Revenue Service within thirty (30) days of such amendment;
11. SALGA will comply with such reporting requirements as may be determined by the Commissioner of the South African Revenue Service from time to time;
12. SALGA is not and may not knowingly become a party to and will not knowingly permit itself to be used as part of an impermissible avoidance arrangement contemplated in Part 11A of Chapter 111 of the Income Tax Act or a transaction, operation or scheme contemplated in Section 103(5) of the Act.