TERMS & CONDITIONS

The Woods Waterfall
Website Privacy Notice
1. Applicability
The Woods Waterfall (Hereinafter referred to as the “Woods” and/or “us”) is a private company incorporated in accordance with the company laws of the Republic of South Africa, with Company Registration Number: 1995/012536/23, and having its Registered Address situated at Suite 108, First floor, Link Hills Lifestyle Centre, Inanda Road, Waterfall KZN, 3610.
2. Purpose
Your privacy is important to us. We are committed to respecting your privacy and the security and confidentiality of your personal data, communications and choices.
The purpose of this Website Privacy Notice is to inform visitors to the website located at https://www.thewoodswaterfall.co.za (hereinafter referred to as the “Site”) about how we treat your Personal Information, as defined in the Protection of Personal Information Act, No. 4 of 2013 (Hereinafter referred to as the “POPI Act”) and your rights in relation to website privacy.
3. Scope
This Website Privacy Notice relates to the Personal Information collected electronically by or through the Site, through, inter alia, the following means:
– enquiries made via the online enquiries’ portal on the Site;
– email services related to the Site and to other electronic communications arising from the Sites’ services.
4. Privacy Principles Subscribed to
The broad privacy principles to which we subscribe are articulated in, inter alia, the POPI Act and concern:
 collection, collation, processing and disclosure of Personal Information;
 processing limitation;
 purpose specification;
 further processing limitation;
 record retention requirements;
 limitation on disclosure;
 third party disclosure of Personal Information;
 destruction of Personal Information; and
 exceptions for statistical purposes.
5. Technologies Deployed in Providing Website Services and Collecting Personal Information
The following technologies may be deployed in providing the Site services:
 Cookies
o ‘Cookies’ allow us to better serve users of the Site when they make use of our Site or request additional information on our Site. A ‘cookie’ is a bit of text that is placed on a user’s computer hard drive when the Site is visited.
o ‘Cookies’ may be placed on a User’s computer by us and/or by third parties, which are used to obtain data such as user-name, user preferences and web pages or advertisements viewed by the user. When the user revisits our Site, we can recognise him or her by the Internet ‘cookie’ and customise the users experience accordingly.
o You, as the User, can set your browser to provide notice whenever a ‘cookie’ is received, which gives you the opportunity to decide whether to accept it or not. Without ‘cookies,’ however, you may not be able to take full advantage of all our Site features.
o To the extent necessary in terms of any applicable legislation, by making use of the Site, you expressly authorise us and/or our associated business partners to make use of cookies in order to optimise your user experience whilst interacting with our Site and/or making use of any of our services.
 ‘Clickstream’
o Our Site may collect information about the ‘clickstream’ of users. This ‘clickstream’ data contains information on the pages that users came from, the navigational paths they took and the areas of the Site they visited.
o We may, from time to time, track such information from inside and outside of our Site. Additionally, we may, from time to time, track and match ‘clickstream’ data with Personal Information that you provide us in order to deliver information about other offerings to you. To the extent necessary in terms of any applicable legislation, by making use of the Site, you expressly authorise us and/or our associated business partners to track and match clickstream data with your Personal Information in order to optimise your user experience whilst interacting with our Site.
 Web Beacons
o Certain email that you, as the User, receive from us may contain ‘web beacons’ which consist of a line of code on our Site that deliver a small graphic image from another website or third party ad server. The ‘web beacon’ may not be visible as it is generally a 1×1 pixel in size and is designed to blend into the background of a web page. Web beacons allow third parties to obtain information such as the IP address of the computer that downloaded the page on which the web beacon appears, the URL of the page on which the web beacon appears, the time the page containing the web beacon was viewed, the type of browser used to view the page and the information in ‘cookies’ set by a third party. We may use ‘web beacons’ for activities such as monitoring the effectiveness of ad banners on our Site and in the email sent to you, the User. To the extent necessary in terms of any applicable legislation, by making use of the Site, you expressly authorise us and/or our associated business partners to make use of web beacons in order to optimise your user experience whilst interacting with our Site.
6. Security of Personal Information Collected and Processed
Information protection is strongest when the information remains in the possession of the data subject as owner of the information. You, as the User and data subject, are requested to carefully consider the nature and risk of submitting Personal Information before doing so. To comply with applicable law and in line with international standards and best practice, we commit ourselves to exercising all reasonable diligence, care and skill in processing Personal Information through the use of technical, administrative and physical controls.
7. Personal Information Collected and Processed
We may collect the following Personal Information:
 information you choose to provide in order to access our Site;
 information you choose to provide through the ‘contact us’ facility;
 information you provide in communications such as email;
 information you provide to our business partners and service providers;
 information about you, such as your demographics and lifestyle, from other sources;
 information collected through the use of common internet technologies such as ‘cookies’, ‘clickstream’ and ‘web beacons’ on our Site and emails; and
 two resources of Personal Information are collected and processed technologically during your visit to the Site (hereinafter collectively referred to as “Personal Information”).
Some information is transient and stored only for the purpose of current transactions and then deleted. Some information is persistent and stored for periods beyond the current transaction such as data from multiple transactions accumulated over time and retrieved when needed to enhance your experience and improve our services. To the extent any Personal Information is collected, stored, utilised and/or processed in any other manner whatsoever, by making use of the Sites, you, as the Data Subject, expressly authorise us and/or our associated business partners to collect the Personal Information, to store the Personal Information, to utilise the Personal Information and/or to process the Personal Information in such reasonable manner as we deem necessary in order to optimise your user experience whilst interacting with our Site and/or making use of any of our services.
8. Uses and Sharing of Personal Information
We may use the Personal Information you, as the User of the Site and/or services, submit to us in order to furnish you with information and to provide you with the services that you require. We shall only process such Personal Information to the minimum extent same is necessary to achieve this end.
Personal Information, such as names, email addresses and mobile telephone numbers, collected through our Site, by email and submitted by you, as the User, to us is necessary for the following:
 to respond to your requests for further information;
 the marketing and promotion of our and other associated business partners services that we believe you may find of interest;
 for the statistical analysis of users’ behaviour and for feedback purposes;
 for product/service/site development;
 to customise and improve the content and layout of our Site;
 for internal purposes, such as the administration and operation of our Site; and
 for compliance with our legal obligations, policies and procedures.
Please note that, unless we have asked for and obtained your explicit consent, we do not share your Personal Information with third party marketers. Please note further that where we make use of any 3rd party to process Personal Information collected by us, we have in place Data Processing Agreements which regulate the processing of such Personal Information in accordance with the provisions of the POPI Act.
We will use the Personal Information you, as the User, submit to us only for purposes consistent with the reason you submit it to us in the first place or, with your further permission, for other purposes, and only to the extent necessary to achieve such purposes.
When we provide your Personal Information to other companies on a temporary basis, in order for them to provide services to us, we require these other companies to protect your Personal Information in the same manner as we do. These third party service providers cannot use Personal Information for any purpose other than the reason you provided it to us.
In addition, the Personal Information you, as the User, provide us with is also used and shared with the following:
 permanent or temporary staff and part-time contractors in the performance of their duties;
 various third parties such as contractors, sub-contractors, suppliers and partners in the sourcing, supply and provision of products/services;
 other service providers websites and WAP sites to which our Site may link;
 data analysis and market research to provide better products/services;
 backup, archiving, business continuity and disaster recovery purposes;
 routine and non-routine internal requests, including court orders and law enforcement investigations.
 the provision of information to any applicable regulatory bodies governing the provision of our products/services, including but not limited to, any relevant ombudsman.
9. Choices
You, as the User, have the right to make choices as to what is done with your Personal Information. Sometimes, your choices are made in the form of registration or opting in or out of receiving communications or marketing material and engaging and/or interacting with our Site.
Once you, as the User, have submitted information to us and requested that we communicate with or market to you, you may at any time thereafter choose to opt out of further contact with us.
Personal Information submitted by you is kept for as long as the purpose for which you furnished it to us exists or for the retention periods specified in law.
10. Access to Your Personal information
You, as the User, may access the Personal Information that we hold about you.
You can ask us to correct any errors or delete Personal Information we have about you.
To protect your privacy, the privacy of others and to ensure the integrity of our business information we may have to verify your identity before we allow access to or change the information that we have about you, as the User.
Access to your Personal Information by our staff and third parties is limited and restricted by us through training, administrative, technical and physical controls in accordance with best practice standards.
All access to your Personal Information must comply with our policies relating to the protection of Personal Information.
11. Important Information
We may process Personal Information, some of which may flow to and from other legal jurisdictions. Please be aware that there may be implications in terms of the specific legal requirements in South Africa and other legal jurisdictions which may, depending upon the actual location of Personal Information, be relevant or become relevant. We seek to comply with complex technical and legal issues wherever possible, but users should be aware that international law and certain aspects of technology restrict our control in some respects.
As Personal Information is most safe, when under the control of its owners, you as the User and data subject, are cautioned to give careful consideration to the Personal Information you choose to disclose.
12. How to Complain
If you have a complaint, are concerned about your Personal Information or wish to report any malicious activity such as spamming and the like, please do the following:
 contact Nataleigh Strydom on +2713 763 4433, or;
 send an email to marketing@rpmg.co.za.
13. Privacy Information Officer
We have appointed a dedicated Privacy Information Officer who is responsible for the processing and protection of Personal Information.
In providing for your privacy, we use a combination of technical, administrative and physical controls based on compliance with the law and in line with international standards and best practice.
We regularly review and enforce our own compliance with this Website Privacy Notice to ensure that our own conduct is in line with the privacy undertakings made to you.

Privacy Information Officer
Name Nataleigh Strydom
Phone Number +2731 763 4433
Email Address info@thewoodswaterfall.co.za
14. Corporate Information and How to Contact Us
The Woods Waterfall
Name Maximprops 1007 CC
Company Registration Number 1995/012536/23
Registered address and the address for receipt of legal service of documents Suit 108, First floor, Link Hills Lifestyle Centre, Inanda Road, Waterfall, KZN 3652
Phone number +2731 763 4433

Website address https://www.thewoodswaterfall.co.za/
Email address info@thewoodswaterfall.co.za
VAT registration number 4910149790

About This cookie policy

This Cookie Policy explains what cookies are and how we use them, the types of cookies we use i.e, the information we collect using cookies and how that information is used, and how to control the cookie preferences. For further information on how we use, store, and keep your personal data secure, see our Privacy Policy.

You can at any time change or withdraw your consent from the Cookie Declaration on our website

Learn more about who we are, how you can contact us, and how we process personal data in our Privacy Policy.

Your consent applies to the following domains: www.thewoodswaterfall.co.za

What are cookies?

Cookies are small text files that are used to store small pieces of information. They are stored on your device when the website is loaded on your browser. These cookies help us make the website function properly, make it more secure, provide better user experience, and understand how the website performs and to analyze what works and where it needs improvement.

How do we use cookies ?

As most of the online services, our website uses first-party and third-party cookies for several purposes. First-party cookies are mostly necessary for the website to function the right way, and they do not collect any of your personally identifiable data.

The third-party cookies used on our website are mainly for understanding how the website performs, how you interact with our website, keeping our services secure, providing advertisements that are relevant to you, and all in all providing you with a better and improved user experience and help speed up your future interactions with our website.

What types of cookies do we use ?

Essential: Some cookies are essential for you to be able to experience the full functionality of our site. They allow us to maintain user sessions and prevent any security threats. They do not collect or store any personal information. For example, these cookies allow you to log-in to your account and add products to your basket, and checkout securely.

Statistics: These cookies store information like the number of visitors to the website, the number of unique visitors, which pages of the website have been visited, the source of the visit, etc. These data help us understand and analyze how well the website performs and where it needs improvement.

Marketing: Our website displays advertisements. These cookies are used to personalize the advertisements that we show to you so that they are meaningful to you. These cookies also help us keep track of the efficiency of these ad campaigns.

The information stored in these cookies may also be used by the third-party ad providers to show you ads on other websites on the browser as well.

Functional: These are the cookies that help certain non-essential functionalities on our website. These functionalities include embedding content like videos or sharing content of the website on social media platforms.

Preferences: These cookies help us store your settings and browsing preferences like language preferences so that you have a better and efficient experience on future visits to the website.

The below list details the cookies used in our website.

How can I control the cookie preferences ?

Should you decide to change your preferences later through your browsing session, you can click on the “Privacy & Cookie Policy” tab on your screen. This will display the consent notice again enabling you to change your preferences or withdraw your consent entirely.

In addition to this, different browsers provide different methods to block and delete cookies used by websites. You can change the settings of your browser to block/delete the cookies. To find out more about how to manage and delete cookies, visit wikipedia.org, www.allaboutcookies.org.

THE WOODS WATERFALL Body Corporate
Promotion of Access to Information Manual
Manual in terms of
The Promotion of Access to Information Act (PAIA) and
The Protection of Personal Information Act (POPIA)
(“PAIA Manual”)
Private & Confidential
This PAIA Manual of the The Woods Waterfall Body Corporate must be –
✓ Available at the premises of the Body Corporate;
✓ Published on the website (if any) of the Body Corporate;
✓ Accessible to the Information Regulator, the trustees and employees
of the Body Corporate;
✓ Available to any person on request and payment of the prescribed fee;
✓ Reviewed regularly and updated as necessary.
Document Management
Date Version Description Author
1 March 2022
1.0
First Release
Mrs M Hoffman
Information Officer
…………………………………………………………………………………..
SIGNATURE OF CHAIRPERSON / INFORMATION OFFICER
Contents
1. DEFINITIONS …………………………………………………………………………………………………………………………… 1
2. INTRODUCTION ………………………………………………………………………………………………………………………. 3
3. PURPOSE OF THE PAIA MANUAL ……………………………………………………………………………………………….. 3
4. THE WOODS WATERFALL BODY CORPORATE ……………………………………………………………………………… 4
5. CONTACT DETAILS OF THE BODY CORPORATE…………………………………………………………………………….. 4
6. CONTACT DETAILS OF THE INFORMATION OFFICER …………………………………………………………………….. 4
7. HUMAN RIGHTS COMMISSION’S PAIA GUIDE ……………………………………………………………………………… 5
8. CATEGORIES OF RECORDS THAT ARE AUTOMATICALLY AVAILABLE ……………………………………………….. 6
9. RECORDS OF THE BODY CORPORATE THAT ARE AVAILABLE IN ACCORDANCE WITH OTHER LEGISLATION ………………………………………………………………………………………………………………………….. 6
10. RECORDS OF THE BODY CORPORATE THAT ARE AVAILABLE ONLY ON REQUEST TO ACCESS IN TERMS OF PAIA …………………………………………………………………………………………………………………………………. 7
11. PROCESS TO REQUEST ACCESS TO A RECORD OF THE BODY CORPORATE ………………………………………. 8
12. GROUNDS FOR REFUSAL OF ACCESS TO A RECORD OF THE BODY CORPORATE ………………………………. 9
13. MANDATORY DISCLOUSRE OF RECORDS OF THE BODY CORPORATE IN THE PUBLIC INTEREST ……….. 11
14. THIRD PARTY NOTIFICATION AND INTERVENTION OF A REQUEST FOR ACCESS TO A RECORD OF THE BODY CORPORATE …………………………………………………………………………………………………………………. 12
15. APPEALS AGAINST DECISIONS OF THE BODY CORPORATE ………………………………………………………….. 12
16. FEES FOR ACCESS AND REPRODUCTION OF RECORDS ………………………………………………………………… 12
17. AVAILABILITY AND UPDATING OF THE PAIA MANUAL ………………………………………………………………… 14
18. PROTECTION OF PERSONAL INFORMATION PROCESSED BY THE BODY CORPORATE ……………………… 15
19. PRESCRIBED FORMS ………………………………………………………………………………………………………………. 27
Annexures 1 FORM C REQUEST FOR ACCESS TO RECORD OF PRIVATE BODY
2
FORM 1
OBJECTION TO THE PROCESSING OF PERSONAL INFORMATION 3 FORM 2 REQUEST FOR CORRECTION OR DELETION OF PERSONAL INFORMATION OR DESTROYING OR DELETION OF RECORD OF PERSONAL INFORMATION
4
FORM 3
APPLICATION FOR THE ISSUE OF A CODE OF CONDUCT
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1. DEFINITIONS
PAIA means the Promotion of Access to Information Act 2 of 2000
POPI means the Promotion of Personal Information Act 4 of 2013
Information Regulator means the Regulator established in terms of Section 39 of POPIA
Person means a natural person or a juristic person
Private body means:
• a natural person who carries or has carried on any trade, business or profession, but only in such capacity
• a partnership which carries or has carried on any trade, business or profession; or
• any former or existing juristic person, but excludes a public body
Public body means:
• any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or
• any other functionary or institution when:
o exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or
o exercising a public power or performing a public function in terms of any legislation
Head, in relation to, a private body means:
• in the case of a natural person, that natural person or any person duly authorised by that natural person;
• in the case of a partnership, any partner of the partnership or any person duly authorised by the partnership;
• in the case of a juristic person:
o the chief executive officer or equivalent officer of the juristic person or any person duly authorised by that officer; or
o the person who is acting as such or any person duly authorised by such acting person
Information Officer means the head of a private body
Deputy Information Officer means the person to whom any power or duty conferred or imposed on an Information Officer by POPI has been delegated
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Requester in relation to a private body, means any person, including, but not limited to public body or an official thereof, making a request for access to a record of the organisation or a person acting on behalf of such person
Personal Requester means a requester seeking access to a record containing personal information about the requester
Personal Information means information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to: information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;
information relating to the education or the medical, financial, criminal or employment history of the person; any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the person, the biometric information of the person; the personal opinions, views or preferences of the person; correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; the views or opinions of another individual about the person; and the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person
Request for access means a request for access to a record of the organisation in terms of section 50 of PAIA
Record means any recorded information regardless of the form or medium, in the possession or under the control of the organisation irrespective of whether or not it was created by the organisation
Data Subject means the person to whom personal information relates
Third Party in relation to a request for access to a record held by the organisation, means any person other than the requester
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Processing means any operation or activity or any set of operations, whether or not by automatic means, concerning personal information, including the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use, dissemination by means of transmission, distribution or making available in any other form, or merging, linking, as well as restriction, degradation, erasure or destruction of information
2. INTRODUCTION
2.1 In recognition of our Constitutional rights to access to information and privacy, the State has enacted legislation.
2.2 The Promotion of Access to Information Act, No. 2 of 2000, (“PAIA”) came into operation on 9 March 2001. Section 51 of PAIA requires that The Woods Waterfall Body Corporate compiles a manual setting out the procedure to be followed should information, that is required for the purpose of exercising or protecting rights, be requested from us.
2.3 The Protection of Personal Information Act, No.4 of 2013 (“POPIA”) came into operation on 1 July 2020. The purpose of POPIA is to promote the protection of personal information processed by public and private bodies through regulation.
2.4 As a defined private body, we, The Woods Waterfall Body Corporate are required to comply with this legislation.
3. PURPOSE OF THE PAIA MANUAL
3.1 PAIA grants a requester access to records of a private body, if the record is required for the exercise or protection of any rights. POPIA requires that personal information is processed in a defined manner.
3.2 Requests for access to information in terms of PAIA are to be made in accordance with the prescribed procedures, at the rates provided. The forms and tariff are dealt with in paragraphs 6 and 7 of PAIA, and are set out below.
3.3 This PAIA Manual sets out the procedure to be followed by The Woods Waterfall Body Corporate where information is requested from it in terms of PAIA.
3.4 This PAIA Manual complies with the requirements of the guide mentioned in Section 10 of PAIA, as set out further below.
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4. THE WOODS WATERFALL BODY CORPORATE
4.1 The Woods Waterfall Body Corporate is established in terms of the Sectional Titles Schemes Management Act, No. 8 of 2011 (“STSMA”). The body corporate is responsible for the enforcement of the rules and for the control, administration and management of the common property for the benefit of all the owners.
4.2 The functions and powers of the body corporate are performed by the trustees of the body corporate.
5. CONTACT DETAILS OF THE BODY CORPORATE
5.1 The Woods Waterfall Body Corporate’s details are as follows:1
Chairperson
Mr R MacGregor
Physical address
2 Brackenhill Road, Waterfall
Postal address
P O Box 13 Kloof 3640
Telephone Number
0861708090
Facsimile
Email address
michelle@infinitepropertymanagement.co.za
Website
6. CONTACT DETAILS OF THE INFORMATION OFFICER
6.1 The Body Corporate is required to appoint an Information Officer to ensure compliance with PAIA and POPIA and to attend to requests for information. The Information Officer may appoint Deputy Information Officers should it be necessary to perform its duties and responsibilities. The Information Officer and Deputy Information Officer/s are required to be registered with the Information Regulator.
6.2 The Information Officer / Deputy Information Officer of the organisation is/are responsible for:
• Encouraging compliance with PAIA and POPIA;
• Dealing with requests for access;
• Working with the Information Regulator relating to investigations;
1 PAIA Section 51(1)(a)
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• Determining whether to grant a request for access to a complete/full record or only part of a record; and
• Providing adequate notice and feedback to the requester.
6.3 All requests for information must be addressed to the Information Officer / Deputy Information Officer. The Information Officer’s details are as follows:
Information Officer
Mrs M Hoffman
Physical address
1 Bishops Court, Delamore Road, Hillcrest
Postal address
P O Box 13 Kloof 3610
Telephone Number
0861708090
Facsimile
Email address
michelle@infinitepropertymanagement.co.za
7. HUMAN RIGHTS COMMISSION’S PAIA GUIDE
7.1 Requesters are referred to the Guide in terms of Section 10 which has been compiled by the South African Human Rights Commission (“SAHRC”), which contains information for the purposes of exercising Constitutional Rights.
7.2 The Guide is available from the SAHRC, the details of which are set out below:2
SAHRC
Physical address
Head Office
Braampark Forum 3
33 Hoofd Street
Braamfontein
Postal address
Private Bag 2700
Houghton
2041
Telephone Number
+27-11-877 3600
Facsimile
+27-11-403 0625
Email address
paia@sahrc.org.za
Website
www.sahrc.org.za
2 PAIA Section 51(1)(b) and Section 10
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8. CATEGORIES OF RECORDS THAT ARE AUTOMATICALLY AVAILABLE
8.1 No notice has been published on the categories of records that are automatically available without a person having to request access in terms of PAIA3.
9. RECORDS OF THE BODY CORPORATE THAT ARE AVAILABLE IN ACCORDANCE WITH OTHER LEGISLATION
9.1 The Body Corporate holds records in terms of the legislation set out below, which, unless disclosure is prohibited in terms thereof or by agreement, requests for access thereto may be made in terms of such legislation read with PAIA and POPIA4.
Title
Number
Basic Conditions of Employment Act
26 of 2005
Companies Act
71 of 2008
Compensation of Occupational Injuries & Diseases Act
130 of 1993
Consumer Protection Act
68 of 2008
Electronic Communications and Transactions Act
25 of 2002
Labour Relations Act
66 of 1995
Financial Intelligence Centre Act
38 of 2001
Sectional Title Schemes Management Act
8 of 2011
Occupational Health and Safety Act
85 of 1993
Skills Development Act
9 of 1999
Unemployment Insurance Act
30 of 1966
Value Added Tax Act
89 of 1991
9.2 Should any specific legislation be omitted from the above list, a requester may lodge a request with the Information Officer in terms of such legislation read with PAIA and POPIA and the Information Officer will consider such request in light thereof.
9.3 Records of a public nature and other statutory records may be accessed without a formal application.
3 PAIA Section 51(1)(c) and Section 52(2)
4 PAIA Section 51(d)
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10. RECORDS OF THE BODY CORPORATE THAT ARE AVAILABLE ONLY ON REQUEST TO ACCESS IN TERMS OF PAIA
10.1 The Body Corporate maintains the categories of records set out in the table below5:
Category Record Purpose Data Subject
Administrative
Visitors books
Legal requirements
Body Corporate
Body Corporate Rules
Legal requirements
Body Corporate
Health & Safety Plan
Legal requirements
Body Corporate
Minutes of Trustee Meetings
Legal requirements
Body Corporate
Trustee Resolutions
Legal requirements
Body Corporate
Internal correspondence
Legal requirements
Body Corporate
Insurance Policies
Legal requirements
Body Corporate
Managing Agent correspondence
Internal Management
Body Corporate
Body Corporate Members
Member database
Internal Management
Body Corporate Members
Member Agreements
Internal Management
Body Corporate Members
Member correspondence
Internal correspondence
Body Corporate Members
Financial
Financial Statements
Internal Management
Financial
Bank Statements
Internal Management
Financial
Levy Statements
Internal Management
Financial
Human Resources
Job Applications
Internal Management
Employees
Employment Contracts
Internal Management
Employees
Personal Records
Internal Management
Employees
Payslips / Salary Records
Internal Management
Employees
PAYE records
Internal Management
Employees
SETA Records
Internal Management
Employees
Disciplinary Code
Internal Management
Employees
Marketing
Advertisements
Internal Management
Marketing
Brochures
Internal Management
Marketing
Third Party
Rental Agreements
Written Agreement
Third Party
Supplier Agreements
Written Agreement
Third Party
Financial Records
Written Agreement
Third Party
Legal Correspondence
Written Agreement
Third Party
5 PAIA Section 51(1)(e)
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Category Record Purpose Data Subject
Tax records
PAYE records
Statutory Records
Employees
VAT records
Statutory Records
Employees
Skills Levies
Statutory Records
Employees
UIF
Statutory Records
Employees
Workman’s Compensation
Statutory Records
Employees
11. PROCESS TO REQUEST ACCESS TO A RECORD OF THE BODY CORPORATE
11.1 Requests must be submitted on the prescribed form (copy available as annexure hereto) to the Information Officer / Deputy Information Officer at its address, fax number or email address6.
11.2 The form for a request for access must:
11.2.1 Provide sufficient particulars to enable the Information Officer / Deputy Information Officer to identify –
11.2.1.1 The requester
11.2.1.2 The records/s requested
11.2.2 Indicate which form of access is required;
11.2.3 Specify a postal address or fax number of the requester in South Africa;
11.2.4 Indicate the right the requester is seeking to exercise or protect and provide an explanation of why the record is required for such;
11.2.5 If the requester wishes to be informed of the decision in any other manner in addition to a written reply, state the manner and necessary particulars to be so informed;
11.2.6 If the request is made on behalf of another person, to submit proof thereof.
11.3 If all reasonable steps have been taken to find a record requested and there are reasonable grounds for believing that the record is in the Body Corporate’s possession but cannot be found or does not exist the Information Officer must notify the requester by way of affidavit or affirmation7.
6 PAIA Section 53
7 PAIA Section 54
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11.4 The Information Officer / Deputy Information Officer will as soon as is reasonably possible but in any event within 30 days make a decision and notify the requester of such decision. Such 30 day period may be extended once for a further period of 30 days in certain instances and on notice to the requester.8
11.5 If granted the notice will state the access fee (if any) to be paid upon access, the form of access and that the requester may lodge an application with a court against the access fee to be paid. If refused the notice must state adequate reasons for the refusal, exclude any reference to the content of the record and state that the requester may lodge an application with a court against the refusal and the procedure (including the period) for lodging the application9.
11.6 The Information Officer must or may sever from any record requested such parts that cannot be disclosed and must disclose the rest10.
12. GROUNDS FOR REFUSAL OF ACCESS TO A RECORD OF THE BODY CORPORATE
12.1 Subject to certain exceptions (as set out below) access to information must be refused where its disclosure would involve the unreasonable disclosure of personal, commercial or confidential information about a third party or would endanger the life or safety of an individual or is otherwise privileged. Similarly access may be refused if the record contains commercial information where disclosure could cause harm, disadvantage or prejudice.
12.2 The Information Officer must refuse a request for access to information where disclosure would involve unreasonable disclosure of personal information about a third party (including a deceased individual) except where:
12.2.1 the individual has consented in writing;
12.2.2 is already publicly available;
12.2.3 the individual provided the information and was informed beforehand that the information belongs to a class of information that would or could be made available to the public;
12.2.4 the information relates to health or wellbeing of someone under the care of the requester who is under 18 years old and incapable of understating the nature of the request and such access would be in the individuals best interests,
8 PAIA Section 56
9 PAIA Section 56
10 PAIA Section 59
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12.2.5 the information relates to a deceased and the requester is, or has the consent of, the next of kin;
12.2.6 the information relates to an individual’s position or function11;
12.2.7 the record contains
12.2.7.1 trade secrets of a third party;
12.2.7.2 financial, commercial, scientific or technical information of third party the disclosure of which would likely cause harm,
12.2.7.3 information supplied in confidence by a third party, the disclosure of which could put that third party at a disadvantage or prejudice –
Except where consented in writing or the results of any product or environmental testing or investigation carried out by a third party and its disclosure would reveal a serious public safety or environmental risk12;
12.2.8 Disclosure would constitute an action for breach of duty of confidence owed to a third party in terms of an agreement13;
12.2.9 Disclosure would endanger life or physical safety of an individual14;
12.2.10 Record is privileged from production in legal proceedings, unless privilege is waived 15;
12.2.11 Record contains information about research being or to be carried out by or on behalf of a third party the disclosure of which is likely to expose the third party; a person that is or will be carrying out the research on behalf of the third party; or the subject matter of the research to serious disadvantage16.
12.3 The Information Officer may refuse a request for access to information where:
12.3.1 Disclosure would likely prejudice or impair
12.3.1.1 security of a building, structure or system, including a computer or communication system, a means of transport or any other property or
12.3.1.2 methods, systems or plans and procedures for the protection of a witness in protection, he safety of the public or security of property17;
11 PAIA Section 63
12 PAIA Section 64
13 PAIA Section 65
14 PAIA Section 66
15 PAIA Section 67
16 PAIA Section 69
17 PAIA Section 66
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12.3.2 Record
12.3.2.1 Contains trade secrets of the Body Corporate;
12.3.2.2 Contains financial, commercial, scientific or technical information of the Body Corporate the disclosure of which would likely cause harm;
12.3.2.3 Contains information, the disclosure of which could reasonably be expected to put the Body Corporate at a disadvantage in contractual negotiations or prejudice the Body Corporate in commercial completion;
12.3.2.4 Is a computer program
Except if it contains information about the results of any product or environmental testing or other investigation carried out by or on behalf o the Body Corporate and its disclosure would reveal a serious public safety or environmental risk18.
12.3.3 Record contains information about research being or to be carried out by or on behalf of a third party the disclosure of which is likely to expose the Body Corporate; or a person that is or will be carrying out the research on behalf of the Body Corporate; or the subject matter of the research to serious disadvantage 19.
13. MANDATORY DISCLOSURE OF RECORDS OF THE BODY CORPORATE IN THE PUBLIC INTEREST
13.1 The Information Officer must grant a request for access to a record of the Body Corporate if:
13.1.1 The disclosure would reveal evidence of a substantial contravention of or failure to comply with the law or imminent and serious public safety or environment la risk;
13.1.2 The public interest in the disclosure clearly outweighs the harm contemplated20.
18 PAIA Section 68
19 PAI Section 69
20 PAIA Section 70
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14. THIRD PARTY NOTIFICATION AND INTERVENTION OF A REQUEST FOR ACCESS TO A RECORD OF THE BODY CORPORATE
14.1 The Information Officer considering a request for access to a record that might relate to a third party21, contain commercial information of a third party22, require an agreed duty of confidence23 or relate to research information of a third party and the disclosure would expose them to serious disadvantage24 must take all reasonable steps to inform the third party of the request25.
14.2 The third party may either consent to or refuse the request for access. The Information Officer must consider the third parties response, or where they could not be located such fact, and will make a decision, in terms of the provisions of PAIA on whether or not to grant access.
15. APPEALS AGAINST DECISIONS OF THE BODY CORPORATE
15.1 A requestor aggrieved by a decision of the Information Officer to refuse a request for access, fees, time periods or forms of access may within 30 days apply to a court for appropriate relief and a Third Party aggrieved by a decision of the Information Officer regarding access to a record may similarly apply within 30 days to Court for appropriate relief26.
16. FEES FOR ACCESS AND REPRODUCTION OF RECORDS
Copies of a manual
16.1 A copy of the manual can be obtained for a fee of R1,10 for every photocopy of an A4 page.
Reproduction fees
16.2 Where information is automatically available from the Body Corporate, the fees for reproducing copies or transcriptions of the information are charged, as set out below.
Access fees
16.3 Access fees are the fees charged for copies or transcriptions of information requested in terms of POPIA, as set out below.
21 PAIA Section 63
22 PAIA Section 64
23 PAIA Section 65
24 PAIA Section 69
25 PAIA Section 71
26 PAIA Section 78
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Other fees
16.4 Request fees of R50,00 is the fee payable by a non-personal requester who wants access to a record.
16.5 A search fee of R30,00 per hour or part thereof is the fee payable for searching and preparing the record for disclosure.
16.6 The Information Officer must by notice require the requester, other than a personal requester, to pay the prescribed request fee (if any), before processing the request27. Personal requesters will be charged the cost pf reproduction only.
16.7 If the request is not limited to records containing information which is personal to the requester and if the head of the private body is of the opinion that the time taken to give effect to the request will exceed six hours the requester can be called upon to pay a deposit of not more than one third of an estimate of the access fee which will become payable.
16.8 If a deposit has been paid in respect of a request for access which is refused the Information Officer must repay the deposit. The Information Officer shall withhold a record until the requester has paid the applicable fees, if any.
16.9 The Body Corporate’s bank account details will be provided to the requester at the time that the request for access is made, where a deposit is required.
16.10 The fees prescribed in the POPIA Regulations applicable to Body Corporates are set out below.
Item Description Fee
1
The fee for a copy of the manual as contemplated in regulation 9(2)(c) for every photocopy of an A4 size page or part thereof
R1,10 2 The fees for reproduction referred to in regulation 11(1) are as follows:
(a)
For every photocopy of an A4 size page or part thereof
R1,10
(b)
For every printed copy of an A4 size page or part thereof held on a computer or in electronic or machine-readable form
R0,75
(c)
For a copy in a computer readable form on –
(i) Stiffy disc
R7,50
(ii) Compact disc
R70,00
(d)
(i) For a transcription of visual images, for an A4 size page or part thereof
R40,00
(ii) For a copy of visual images
R60,00
27 PAIA Section 54
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(e)
(i) For a transcription of an audio record, for an A4 size page or part thereof
R20,00
(ii) For a copy of an audio record
R30,00 3 The request fee payable by a requester, other than a personal requester, referred to in regulation 11 (2) is R50,00 R50,00 4 The access fees payable by a requester referred to in regulation 11(3) are as follows:
(1)(a)
For every photocopy of an A4 sized page or part thereof
R1,10
(b)
For every printed copy of an A4 size page or part thereof held on a computer or in electronic or machine-readable form
R0,75
(c)
For a copy in a computer readable form on –
R
(i). Stiffy disc
R7,50
(ii). Compact disc
R70,00
(d)
(i) For a transcription of visual images, for an A4 size page or part thereof
R40,00
(ii). For a copy of visual images
R60,00
(e)
(i) For a transcription of an audio record, for an A4 size page or part thereof
R20,00
(ii). For a copy of an audio record
R30,00
(f)
To search for and prepare the record of disclosure, R30,00 for each hour or part of an hour reasonably required for such search and preparation
R30,00
(2)
For purposes of section 54(2) of the Act (PAIA), the following applies
(a)
Six hours as the hours to be exceeded before a deposit is payable; and
(b)
One third of the access fee is payable as a deposit by the requester
(3)
The actual postage is payable when a copy of a record must be posted to a requester
17. AVAILABILITY AND UPDATING OF THE PAIA MANUAL
Regulation Number R.187 of 15 February 2002
17.1 This PAIA Manual of the The Woods Waterfall Body Corporate is made available in terms of Regulation No. R.187 of 15 February 2002 and is available to view at its premises.
17.2 A copy will be made available against payment of the prescribed fee, as set out above.
17.3 The PAIA Manual will be updated as may be necessary.
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18. PROTECTION OF PERSONAL INFORMATION PROCESSED BY THE BODY CORPORATE
18.1 In order for the Body Corporate to fulfil its statutory obligations, it necessarily processes personal information. The Body Corporate will accordingly only process personal information in terms of the prescripts of POPIA and will only provide access thereto in accordance with POPIA.
18.2 POPIA sets out the eight necessary conditions for the processing of information, subject to specified exclusions and exemptions. The conditions are the following:
• Accountability;
• Processing limitation;
• Purpose specification;
• Further processing limitation;
• Information quality;
• Openness;
• Security safeguards; and
• Data subject participation.
Condition 1 – Accountability
Responsible party to ensure conditions for lawful processing28
18.3 The responsible party must ensure that the conditions, and all measures that give effect to such conditions, are complied with at the time of the determination of the purpose and means of the processing and during the processing itself.
Condition 2 – Processing limitation
Lawfulness of processing29
18.4 Personal information must be processed –
18.4.1 lawfully;
18.4.2 in a reasonable manner that does not infringe the privacy of the data subject.
Minimality30
18.5 Personal information may only be processed if, given the purpose for which it is processed, it is adequate, relevant and not excessive.
28 POPIA Section 8
29 POPIA Section 9
30 POPIA Section 10
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Consent, justification and objection31
18.6 Personal information may only be processed if –
18.6.1 the data subject or a competent person where the data subject is a child consents to the processing;
18.6.2 processing is necessary to carry out actions for the conclusion or performance of a contract to which the data subject is party;
18.6.3 processing complies with an obligation imposed by law on the responsible party;
18.6.4 processing protects a legitimate interest of the data subject;
18.6.5 processing is necessary for the proper performance of a public law duty by a public body; or
18.6.6 processing is necessary for pursuing the legitimate interests of the responsible party or of a third party to whom the information is supplied.
18.7 The responsible party bears the burden of proof for the data subject’s or competent person’s consent.
18.8 The data subject or competent person may withdraw his, her or its consent, as referred to above, at any time: Provided that the lawfulness of the processing of personal information before such withdrawal or the processing of personal information in terms of the above will not be affected.
18.9 A data subject may object, at any time, to the processing of personal information –
18.9.1 in terms of subsection (1)(d) to (f), in the prescribed manner, on reasonable grounds relating to his, her or its particular situation, unless legislation provides for such processing; or
18.9.2 for purposes of direct marketing other than direct marketing by means of unsolicited electronic communications as referred to in section 69.
18.10 If a data subject has objected to the processing of personal information in terms of subsection (3), the responsible party may no longer process the personal information.
Collection directly from the data subject32
18.11 Personal information must be collected directly from the data subject, except as otherwise provided for below.
31 POPIA Section 11
32 POPIA Section 12
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18.12 It is not necessary to comply with the above if –
18.12.1 the information is contained in or derived from a public record or has deliberately been made public by the data subject;
18.12.2 the data subject or a competent person where the data subject is a child has consented to the collection of the information from another source
18.12.3 collection of the information from another source would not prejudice a legitimate interest of the data subject;
18.12.4 collection of the information from another source is necessary –
• to avoid prejudice to the maintenance of the law by any public body, including the prevention, detection, investigation, prosecution and punishment of offences;
• to comply with an obligation imposed by law or to enforce legislation concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997);
• for the conduct of proceedings in any court or tribunal that have commenced or are reasonably contemplated;
• in the interests of national security; or
• to maintain the legitimate interests of the responsible party or of a third party to whom the information is supplied;
18.12.5 compliance would prejudice a lawful purpose of the collection; or
18.12.6 compliance is not reasonably practicable in the circumstances of the particular case.
Condition 3 – Purpose specification
Collection for specific purpose33
18.13 Personal information must be collected for a specific, explicitly defined and lawful purpose related to a function or activity of the responsible party.
18.14 Steps must be taken in accordance with section 18(1) to ensure that the data subject is aware of the purpose of the collection of the information unless the provisions of section 18(4) are applicable.
33 POPIA Section 13
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Retention and restriction of records34
18.15 Subject to subsections (2) and (3), records of personal information must not be retained any longer than is necessary for achieving the purpose for which the information was collected or subsequently processed, unless –
18.15.1 retention of the record is required or authorised by law;
18.15.2 the responsible party reasonably requires the record for lawful purposes related to its functions or activities;
18.15.3 retention of the record is required by a contract between the parties thereto; or
18.15.4 the data subject or a competent person where the data subject is a child has consented to the retention of the record.
18.16 Records of personal information may be retained for periods in excess of those contemplated in subsection (1) for historical, statistical or research purposes if the responsible party has established appropriate safeguards against the records being used for any other purposes.
18.17 A responsible party that has used a record of personal information of a data subject to make a decision about the data subject, must –
18.17.1 retain the record for such period as may be required or prescribed by law or a code of conduct; or
18.17.2 if there is no law or code of conduct prescribing a retention period, retain the
record for a period which will afford the data subject a reasonable opportunity, taking all considerations relating to the use of the personal information into account, to request access to the record.
18.18 A responsible party must destroy or delete a record of personal information or de-identify it as soon as reasonably practicable after the responsible party is no longer authorised to retain the record in terms of subsection (1) or (2)
18.18.1 The destruction or deletion of a record of personal information in terms of subsection (4) must be done in a manner that prevents its reconstruction in an intelligible form.
18.18.2 The responsible party must restrict processing of personal information if –
• its accuracy is contested by the data subject, for a period enabling the responsible party to verify the accuracy of the information;
• the responsible party no longer needs the personal information for achieving the purpose for which the information was collected or subsequently processed, but it has to be maintained for purposes of proof;
34 POPIA Section 14
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• the processing is unlawful and the data subject opposes its destruction or deletion and requests the restriction of its use instead; or
• the data subject requests to transmit the personal data into another automated processing system
18.19 Personal information referred to in subsection (6) may, with the exception of storage, only be processed for purposes of proof, or with the data subject’s consent, or with the consent of a competent person in respect of a child, or for the protection of the rights of another natural or legal person or if such processing is in the public interest.
18.20 Where processing of personal information is restricted pursuant to subsection (6), the responsible party must inform the data subject before lifting the restriction on processing.
Condition 4 – Further processing limitation
Further processing to be compatible with purpose of collection35
18.21 Further processing of personal information must be in accordance or compatible with the purpose for which it was collected in terms of section 13.
18.22 To assess whether further processing is compatible with the purpose of collection, the responsible party must take account of –
18.22.1 the relationship between the purpose of the intended further processing and the purpose for which the information has been collected;
18.22.2 the nature of the information concerned;
18.22.3 the consequences of the intended further processing for the data subject;
18.22.4 the manner in which the information has been collected; and
18.22.5 any contractual rights and obligations between the parties.
18.23 The further processing of personal information is not incompatible with the purpose of collection if –
18.23.1 the data subject or a competent person where the data subject is a child has consented to the further processing of the information;
18.23.2 the information is available in or derived from a public record or has deliberately been made public by the data subject;
35 POPIA Section 15
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18.23.3 further processing is necessary –
• to avoid prejudice to the maintenance of the law by any public body including the prevention, detection, investigation, prosecution and punishment of offences;
• to comply with an obligation imposed by law or to enforce legislation;
• concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997);
• for the conduct of proceedings in any court or tribunal that have commenced or are reasonably contemplated; or
• in the interests of national security.
18.24 the further processing of the information is necessary to prevent or mitigate a serious and imminent threat to –
18.24.1 public health or public safety; or
18.24.2 the life or health of the data subject or another individual;
18.24.3 the information is used for historical, statistical or research purposes and the responsible party ensures that the further processing is carried out solely for such purposes and will not be published in an identifiable form; or
18.24.4 the further processing of the information is in accordance with an exemption granted under section 37.
Condition 5 – Information quality
Quality of information36
18.25 A responsible party must take reasonably practicable steps to ensure that the personal information is complete, accurate, not misleading and updated where necessary.
18.26 In taking the steps referred to in subsection (1), the responsible party must have regard to the purpose for which personal information is collected or further processed.
Condition 6 – Openness
Documentation 37
18.27 A responsible party must maintain the documentation of all processing operations under its responsibility as referred to in section 14 or 51 of PAIA.
36 POPIA Section 16
37 POPIA Section 17
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Notification to data subject when collecting personal information38
18.28 If personal information is collected, the responsible party must take reasonably practicable steps to ensure that the data subject is aware of –
18.28.1 the information being collected and where the information is not collected from the data subject, the source from which it is collected;
18.28.2 the name and address of the responsible party;
18.28.3 the purpose for which the information is being collected;
18.28.4 whether or not the supply of the information by that data subject is voluntary or mandatory;
18.28.5 the consequences of failure to provide the information;
18.28.6 any particular law authorising or requiring the collection of the information;
18.28.7 the fact that, where applicable, the responsible party intends to transfer the information to a third country or international organisation and the level of protection afforded to the information by that third country or international organisation;
18.28.8 any further information such as the –
• recipient or category of recipients of the information;
• nature or category of the information;
• existence of the right of access to and the right to rectify the information collected;
• existence of the right to object to the processing of personal information as referred to in section 11(3); and
• right to lodge a complaint to the Information Regulator and the contact details of the Information Regulator,
which is necessary, having regard to the specific circumstances in which the information is or is not to be processed, to enable processing in respect of the data subject to be reasonable.
18.29 The steps referred to in subsection (1) must be taken –
18.29.1 if the personal information is collected directly from the data subject, before the information is collected, unless the data subject is already aware of the information referred to in that subsection; or
18.29.2 in any other case, before the information is collected or as soon as reasonably practicable after it has been collected.
38 POPIA Section 18
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18.30 A responsible party that has previously taken the steps referred to in subsection (1) complies with subsection (1) in relation to the subsequent collection from the data subject of the same information or information of the same kind if the purpose of collection of the information remains the same.
18.31 It is not necessary for a responsible party to comply with subsection (1) if –
18.31.1 the data subject or a competent person where the data subject is a child has provided consent for the non-compliance;
18.31.2 non-compliance would not prejudice the legitimate interests of the data subject as set out in terms of this Act;
18.31.3 non-compliance is necessary –
• to avoid prejudice to the maintenance of the law by any public body, including the prevention, detection, investigation, prosecution and punishment of offences;
• to comply with an obligation imposed by law or to enforce legislation concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997);
• for the conduct of proceedings in any court or tribunal that have been commenced or are reasonably contemplated; or
• in the interests of national security;
18.31.4 compliance would prejudice a lawful purpose of the collection;
18.31.5 compliance is not reasonably practicable in the circumstances of the particular case; or
18.31.6 the information will –
• not be used in a form in which the data subject may be identified; or
• be used for historical, statistical or research purposes.
Condition 7 – Security Safeguards
Security measures on integrity and confidentiality of personal information39
18.32 A responsible party must secure the integrity and confidentiality of personal information in its possession or under its control by taking appropriate, reasonable technical and organisational measures to prevent –
18.32.1 loss of, damage to or unauthorised destruction of personal information; and
18.32.2 unlawful access to or processing of personal information
18.32.3 In order to give effect to subsection (1), the responsible party must take reasonable measures to –
39 POPIA Section 19
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18.32.4 identify all reasonably foreseeable internal and external risks to personal information in its possession or under its control;
18.32.5 establish and maintain appropriate safeguards against the risks identified;
18.32.6 regularly verify that the safeguards are effectively implemented; and
18.32.7 ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards.
18.33 The responsible party must have due regard to generally accepted information security practices and procedures which may apply to it generally or be required in terms of specific industry or professional rules and regulations.
Information processed by operator or person acting under authority40
18.34 An operator or anyone processing personal information on behalf of a responsible party or an operator, must –
18.34.1 process such information only with the knowledge or authorisation of the responsible party; and
18.34.2 treat personal information which comes to their knowledge as confidential and must not disclose it,
unless required by law or in the course of the proper performance of their duties.
Security measures regarding information processed by operator41
18.35 A responsible party must, in terms of a written contract between the responsible party and the operator, ensure that the operator which processes personal information for the responsible party establishes and maintains the security measures referred to in section 19.
18.36 The operator must notify the responsible party immediately where there are reasonable grounds to believe that the personal information of a data subject has been accessed or acquired by any unauthorised person.
Notification of security compromises42
18.37 Where there are reasonable grounds to believe that the personal information of a data subject has been accessed or acquired by any unauthorised person, the responsible party must notify –
18.37.1 the Regulator; and
18.37.2 subject to subsection (3), the data subject, unless the identity of such data subject cannot be established.
40 POPIA Section 20
41 POPIA Section 21
42 POPIA Section 22
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18.38 The notification referred to in subsection (1) must be made as soon as reasonably possible after the discovery of the compromise, taking into account the legitimate needs of law enforcement or any measures reasonably necessary to determine the scope of the compromise and to restore the integrity of the responsible party’s information system.
18.39 The responsible party may only delay notification of the data subject if a public body responsible for the prevention, detection or investigation of offences or the Regulator determines that notification will impede a criminal investigation by the public body concerned.
18.40 The notification to a data subject referred to in subsection (1) must be in writing and communicated to the data subject in at least one of the following ways:
18.40.1 Mailed to the data subject’s last known physical or postal address;
18.40.2 sent by e-mail to the data subject’s last known e-mail address;
18.40.3 placed in a prominent position on the website of the responsible party;
18.40.4 published in the news media; or
18.40.5 as may be directed by the Regulator.
18.41 The notification referred to in subsection (1) must provide sufficient information to allow the data subject to take protective measures against the potential consequences of the compromise, including –
18.41.1 a description of the possible consequences of the security compromise;
18.41.2 a description of the measures that the responsible party intends to take or has taken to address the security compromise;
18.41.3 a recommendation with regard to the measures to be taken by the data subject to mitigate the possible adverse effects of the security compromise; and
18.41.4 if known to the responsible party, the identity of the unauthorised person who may have accessed or acquired the personal information.
18.42 The Regulator may direct a responsible party to publicise, in any manner specified, the fact of any compromise to the integrity or confidentiality of personal information, if the Regulator has reasonable grounds to believe that such publicity would protect a data subject who may be affected by the compromise.
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Condition 8 – Data Subject Participation
Access to personal information43
18.43 A data subject, having provided adequate proof of identity, has the right to –
18.43.1 request a responsible party to confirm, free of charge, whether or not the responsible party holds personal information about the data subject; and
18.43.2 request from a responsible party the record or a description of the personal information about the data subject held by the responsible party, including information about the identity of all third parties, or categories of third parties, who have, or have had, access to the information—
• within a reasonable time;
• at a prescribed fee, if any;
• in a reasonable manner and format; and
• in a form that is generally understandable
18.44 If, in response to a request in terms of subsection (1), personal information is communicated to a data subject, the data subject must be advised of the right in terms of section 24 to request the correction of information.
18.45 If a data subject is required by a responsible party to pay a fee for services provided to the data subject in terms of subsection (1)(b) to enable the responsible party to respond to a request, the responsible party—
18.45.1 must give the applicant a written estimate of the fee before providing the services; and
18.45.2 may require the applicant to pay a deposit for all or part of the fee
18.46 A responsible party may or must refuse, as the case may be, to disclose any information requested in terms of subsection (1) to which the grounds for refusal of access to records set out in the applicable sections of Chapter 4 of Part 2 and Chapter 4 of Part 3 of the Promotion of Access to Information Act apply.
18.47 The provisions of sections 30 and 61 of the Promotion of Access to Information Act are applicable in respect of access to health or other records.
43 POPIA Section 23
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18.48 If a request for access to personal information is made to a responsible party and part of that information may or must be refused in terms of subsection (4)(a), every other part must be disclosed.
Correction of personal information44
18.49 A data subject may, in the prescribed manner, request a responsible party to—
18.49.1 correct or delete personal information about the data subject in its possession or under its control that is inaccurate, irrelevant, excessive, out of date, incomplete, misleading or obtained unlawfully; or
18.49.2 destroy or delete a record of personal information about the data subject that the responsible party is no longer authorised to retain in terms of section 14.
18.50 On receipt of a request in terms of subsection (1) a responsible party must, as soon as reasonably practicable—
18.50.1 Correct the information;
18.50.2 Destroy or delete the information;
18.50.3 provide the data subject, to his or her satisfaction, with credible evidence in support of the information; or
18.50.4 where agreement cannot be reached between the responsible party and the data subject, and if the data subject so requests, take such steps as are reasonable in the circumstances, to attach to the information in such a manner that it will always be read with the information, an indication that a correction of the information has been requested but has not been made.
18.50.5 If the responsible party has taken steps under subsection (2) that result in a change to the information and the changed information has an impact on decisions that have been or will be taken in respect of the data subject in question, the responsible party must, if reasonably practicable, inform each person or body or responsible party to whom the personal information has been disclosed of those steps;
18.50.6 The responsible party must notify a data subject, who has made a request in terms of subsection (1), of the action taken as a result of the request.
Manner of access45
18.51 The provisions of sections 18 and 53 of PAIA (form of access) apply to requests made in terms of section 23 of POPIA (as set out above).
44 POPIA Section 24
45 POPIA Section 25
The Woods Waterfall Body Corporate
Promotion of Access to Information Manual
November 2021
Page 27
Part B – Processing of special personal information46
18.52 Part B deals with the manner in which special personal information is to be processed and the restrictions and exceptions around such.
Part C – Processing of special personal information of children47
18.53 Part C similarly sets out how special personal information in respect of children is to be processed.
Chapter 4 Exemptions from conditions for processing of personal information48
18.54 Chapter 4 deals with the exemptions from the conditions for processing of personal information if the Regulator grants an exemption or is processed for the purpose of discharging a relevant function, as defined, which is performed with the view to protecting members of the public against dishonesty, malpractice or incompetence of, amongst others, bodies corporate.
Chapter 9 Transborder information flows49
18.55 Chapter 9 prohibits a responsible party in the Republic from transferring personal information about a data subject to a third party who is in a foreign country unless
18.55.1 the third party who receives such is bound by a law, corporate rules or an agreement which provide an adequate level of protection;
18.55.2 the data subject consents;
18.55.3 the transfer is necessary for the conclusion or performance of a contract; or
18.55.4 the transfer is of benefit to the data subject (and if it was obtainable the data subject would likely consent).
19. PRESCRIBED FORMS
19.1 The forms prescribed in terms of PAIA and POPIA are annexed hereunder.
46 POPIA Sections 26 to 33
47 POPIA Sections 34 to35
48 POPIA Sections 36 to 38
49 POPIA Sections 72

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SECTION NO: ________
CONTRACT OF SALE
entered into by and between
MAXIMPROPS 1007 CC
and
________________________________________
in respect of the purchase and sale of a proposed unit in the
sectional title scheme to be known as
THE WOODS WATERFALL
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1. THE SCHEDULE
1.1. THE SELLER: MAXIMPROPS 1007 CC
Registration number: 1995/012536/23
Physical Address: c/o Lester Hall, Fletcher Inc., 44 Old Main Road, Kloof, 3610
Postal Address: c/o Lester Hall, Fletcher Inc., Private Bag X7016, Hillcrest, 3650
Telephone number: 031 818 7280
Email: saf@lesterhall.co.za
1.2. THE PURCHASER:
Name: ………………………………………………………………………………………………………………………………………..
Identity Number/Registration Number: ………………………………………………………………………………………………
Marital Status (for individual): ………………………………(in/out of COP)……………………………………
Physical address: ……………………………………………………………………………………………………………………………
Postal address: ……………………………………………………………………………………………………………………………….
Telephone number: …………………………………………………………………………………………………………………………
Cellular number: ……………………………………………………………………………………………………………………………..
E-mail: ……………………………………………………………………………………………………………………………………………
1.3. THE SCHEME:
1.3.1. NAME: The Woods Waterfall
1.3.2. LAND: Erf 1045 Waterfall
1.4. DESCRIPTION OF PROPERTY:
1.4.1. PROPOSED SECTION NO: _______
Approximate extent of the Section (m2) _______
together with an undivided share in the common property of the land and building to be erected and apportioned to the said section in accordance with the participation quota of the section as will be specified on the schedule annexed to the sheets of the Sectional Plan.
1.4.2. EXCLUSIVE USE AREA (if applicable): GA _______
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PB _______
Garden/Parking Area(s) to be allocated in terms of section 10(8) of Act 8/2011 as per clause 8.3 of the Conditions of Sale.
1.5. THE PURCHASE PRICE:
The Purchase Price of the Property is the sum of: R______________________
inclusive of VAT
1.6. PAYMENT OF PURCHASE PRICE: (delete what is not applicable)
1.6.1. DEPOSIT is the sum of: R_____________________
It is payable within 7 (seven) days of Date of Signature to the Conveyancer’s trust account.
1.6.2. FURTHER DEPOSIT/ GUARANTEE NO.1 in the amount of: R_____________________
It is payable to the Conveyancer’s trust account within 30 (thirty) days of the Conveyancer’s request therefor. In the case of a guarantee being issued, it is to be made payable on Date of Transfer and secured by delivery thereof to the Conveyancers within 30 (thirty) days of the Conveyancer’s request therefor. The guarantee shall be irrevocable, unconditional and issued by a financial institution in a form and on terms acceptable to the Conveyancers.
1.6.3. LOAN/GUARANTEE(S) NO. 2 in the amount of: R_____________________
It is payable on the Date of Transfer and is to be provided for by the raising of a loan from a financial institution and shall be secured by guarantee(s) issued by such financial institution in a form acceptable to the Conveyancers. The guarantee(s) shall be delivered to the Conveyancers within 30 (thirty) days of the Conveyancers request.
1.6.4. DEPOSIT FROM PRIOR SALE/ GUARANTEE(S) NO 3 of: R_____________________
It is payable to the Conveyancer’s Trust Account. In the case of a guarantee being issued it is to be made payable to the Conveyancer’s Trust Account on the date of registration of the Purchaser’s property so sold. The guarantee shall be delivered to the Conveyancers within 14 (fourteen) days after the fulfilment of the conditions of clause 2.2.1 of the Conditions of Sale. The guarantee shall be irrevocable, unconditional and issued by a financial institution in a form and on terms acceptable to the Conveyancers.
1.7. DESCRIPTION OF PURCHASER’S PROPERTY (PRIOR SALE):
__________________________________________________________________________
(“the Purchaser’s property”)
1.8. ANTICIPATED DATE OF POSSESSION:
Subject to the terms and conditions set out in Clause 6 of the Conditions of Sale, the anticipated date of possession is:
_____/_____/_________
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1.9. OCCUPATIONAL RENTAL R_____________________
1.10. ESTIMATED MONTHLY LEVY PAYABLE: R_____________________
1.11 PROPERTY PRACTITIONER:
1.11.1 Name/Business Name _________________________________________
1.11.2 Income Tax No/VAT No __________________________
1.11.3 The Commission payable by the Seller (inclusive of VAT) ____%
1.12 CONVEYANCERS:
Lester Hall, Fletcher Inc.
44 Old Main Road, Kloof, 3610
Private Bag X7016, Hillcrest, 3650
Tel : 0861 2777 27
Email : saf@lesterhall.co.za
2. SALE
2.1. Subject to and in accordance with the provisions hereof and the Conditions of Sale annexed hereto as Annexure “A”, the Seller sells to the Purchaser who purchases the Property described in clause 1.4 above.
2.2. The Section shall be erected substantially in accordance with the Plans. The Purchaser agrees that he shall not be entitled to amend or procure any amendments to the Plans. The Purchaser acknowledges that the Section will be situated on the Land in substantially the same position as indicated on the Site Plan, annexed hereto as Annexure “B”, and is to be built in accordance with the Plans.
2.3. The Purchaser agrees that the precise area, boundaries and description of the Property shall be shown on the Sectional Plan and as finally determined and approved by the Surveyor–General and shall be binding upon the parties, provided always that the building area of the Section shall be within 5% (five percent) of the area stated in 1.4.1 above. In the event of any dispute in regard hereto, the Land Surveyor’s Certificate shall be final and binding on the parties.
3. PAYMENT OF PURCHASE PRICE
3.1. The deposit referred to in clause 1.6.1 above shall be paid to the Conveyancers as stipulated in clause 1.12 above. The deposit is non-refundable in the event of a breach by the Purchaser and subsequent cancellation, the Purchaser agreeing that the aforesaid penalty is fair and reasonable as to an agreed pre-estimate of losses that the Lessor may suffer as a result of such cancellation
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to be finally quantified in accordance with clause 14.1.2.1 of the Conditions of Sale.
3.2. Such payments shall be invested by the Conveyancers in an interest-bearing account on behalf of the Purchaser until the Date of Transfer whereupon the Conveyancers shall release the capital to the Seller and all accrued interest earned in respect of such deposits, less 5% of the interest accrued which is payable to the Legal Practitioners’ Fidelity Fund on a monthly basis in terms of Section 86(5)(b) of the Act, and the Conveyancer’s usual fee, to the Purchaser. .
3.3. The Purchaser hereby authorises the Conveyancers to invest such monies with Investec Corporate Cash Manager or Nedbank Corporate Saver in terms of section 86(4) of the Legal Practice Act.
3.4. The Purchaser acknowledges that:
3.4.1. the Conveyancers are designated as an “accountable institution” in terms of the Financial Intelligence Centre Act No. 46 of 2001 (“FICA”);
3.4.2. certain obligations are placed on the Conveyancers in terms of FICA and the Prevention of Organised Crime Act No. 21 of 1998 (“POCA”) and the Regulations promulgated in terms thereof;
3.4.3. the Conveyancers are not able to invest any amounts paid into trust with them on the Purchaser’s behalf until such time as the Purchaser has complied with the requirements of FICA and has signed the necessary investment mandate, both of which the Purchaser undertakes to do as soon as possible after request therefor by the Conveyancers.
3.5. The Purchaser shall secure the due payment of the amounts referred to in clauses 1.6.2, 1.6.3 and 1.6.4 above by furnishing the Conveyancers with a guarantee(s) from a registered South African commercial bank, in a form and on terms acceptable to the Conveyancers for such amount. Such guarantee(s) shall be furnished by the Purchaser within the prescribed time frames stipulated in clauses 1.6.2, 1.6.3 and 1.6.4, provided that if the Purchaser requires a loan for the amount stated in 1.6.3 above or intends securing a portion of the purchase price by prior sale in the amount stated in 1.6.4, such guarantee(s) shall also not be called for until either the loan has been granted or the property has been conclusively sold in accordance with the conditions precedent contained in clauses 2.1 and 2.2 respectively of the Conditions of Sale. The aforesaid guarantee/s shall be payable on the Date of Transfer.
3.6. Alternatively, the Purchaser shall be entitled to pay the amount referred to in 1.6.2, 1.6.3 and 1.6.4 above to the Conveyancers in cash, which amount shall be invested by the Conveyancers in accordance with the provisions of clause 3.2 above.
3.7. Notwithstanding anything to the contrary herein contained, inasmuch as the total Purchase Price is a Value Added Tax (“VAT”) inclusive price determined at the current rate of 15% (fifteen percent) then, in the event of the rate at which VAT is chargeable being amended after the date of signature hereof by the Purchaser, but in circumstances in which the amended rate will apply to this transaction, then the purchase price shall be adjusted accordingly, the intention being that the Seller shall receive and retain the same net purchase price after payment of VAT regardless of the rate at which VAT is payable.
3.8. Unless otherwise provided, all payments hereunder shall be made without set-off, deduction or demand to the Seller at the offices of the Conveyancers. All bank charges incurred by the Conveyancers in connection with this transaction, shall be for the account of the Purchaser.
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4. PHASED DEVELOPMENT
This sale is subject to the following special condition which is imposed by the Seller in terms of Section 11(2) of Act 95/1986, namely, the Seller, in terms of Section 25 of Act 95/1986, hereby reserves for itself the real right to extend, for its personal account, the Scheme by the erection and completion from time to time but within a period of 20 (twenty) years of:
4.1. a further building or buildings,
4.2. a horizontal extension of an existing building or buildings, and
4.3. a vertical extension of existing buildings
on that part of the common property outlined on the Site Plan, to divide such building or buildings into a section or sections and common property and to confer the right of exclusive use over parts of such common property upon the owner or owners of one or more of such sections in the Scheme.
5. CONDITIONS PRECEDENT
5.1 This Contract is subject to and conditional upon:
5.1.1 the relevant local authority approving the Site Plan and the building plans for the Scheme; and
5.1.2 the Seller satisfying the Seller’s bank’s development finance pre-sale requirements, as defined by the said bank, in order for construction to commence; and
5.1.3 the Department of Water and Sanitation approving a Water Use Licence in respect of the Land;
by no later than 12 (twelve) months from Date of Signature.
5.2 Should either of the aforesaid conditions not be met timeously, then in that event, this entire Contract shall lapse and be of no further force and effect between the Parties. It is recorded that the aforesaid conditions have been inserted solely for the benefit of the Seller, who may waive compliance with one or both of the aforesaid conditions prior to expiry of the 12 (twelve) month period.
6. CONSUMER PROTECTION ACT
6.1. The Purchaser, who is a Juristic Person, 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 Contract, is exempt from the provisions of the CPA (save for the provisions of section 60 and 61 of the CPA). It is recorded that the aforesaid warranty is material to the Seller in entering into this Contract of Sale. 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, and such other financial information in respect to the Purchaser as the Seller may reasonably require, in order to confirm that the Purchaser’s asset value and/or turnover is as warranted.
6.2. It is recorded that as the Seller is disposing of the Property in the “ordinary course of business”, as contemplated in the CPA, the provisions of the CPA shall apply to the sale of the Property in terms of this Contract, except insofar as 5.1 is applicable.
Delete If not applicable
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7. PROTECTION OF PERSONAL INFORMATION ACT NO 4 of 2013 (“POPI”)
7.1. The Purchaser consents, as required by POPI, to the Property Practitioner, Conveyancer and Mortgage Originator (if applicable) gathering and processing personal information for the express purpose of concluding the sale and transfer of the Property in accordance with this Contract.
7.2. The Purchaser further consents to the sharing of personal information between the Property Practitioner, Conveyancers, Mortgage Originator (if applicable), Municipality, Compliance Officers and appropriate third parties for the reasons/purposes set out in the Contract only.
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OFFER AND ACCEPTANCE
The Purchaser acknowledges that this offer shall not be capable of being withdrawn and shall remain open for acceptance by the Seller for a period of 21 (twenty-one) days after the date of signature of the Purchaser.
DATED at ………….………………….…… this ……………… day of ……………………………. 20___.
AS WITNESS:
__________________________________ ____________________________________
SELLER
DATED at …………………………….…… this ……………… day of ……………………… …… 20___.
AS WITNESS:
__________________________________ ____________________________________
PURCHASER
Who acknowledges that he /she is acquainted with and understands the contents of the Contract and that all the annexures referred to in this Contract were attached hereto when he/ she signed same.
DECLARATION IN TERMS OF REGULATION 37 TO ACT 22/2019
I, _______________________________________________________________________________
[Insert name of Property Practitioner as defined in clause 1.11 above]
hereby warrants the validity of my Fidelity Fund certificate as at the date of signature of this Contract.
I further declare that my valid FFC number is: _______________. The date of issue is ____________
DATED at …………………….………… this ……………… day of ………………………………20……….
_________________________________
Property Practitioner:
who also accepts any benefits conferred in terms of the Contract.
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GUARANTOR
This portion to be signed by member / director/ trustee in the event of the Purchaser being a close corporation / company / trust.
(Full names) _______________________________________________________________________
of________________________________________________________________________________
(Full address and telephone number)
hereby consents to the conclusion of this Contract 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 Contract, 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 this Contract shall prejudice the suretyship obligations hereby undertaken by the aforesaid guarantor, the object being that he shall remain liable at all times as surety and co-principal debtor, even if this Contract is varied or amended or novated and even if the aforesaid Purchaser is granted an indulgence by the Seller.
Signed by the Guarantor at …………………….…on this…………. day of……………….…………20___.
AS WITNESSES:
1. ___________________________
2. ____________________________ __________________________________ GUARANTOR
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Annexure “A”
CONDITIONS OF SALE
1. DEFINITIONS AND INTERPRETATIONS:
The following words and expressions shall, unless the context otherwise requires, have the meanings assigned to them respectively, namely:
1.1 “Act 95/1986” means the Sectional Titles Act No. 95 of 1986, as amended, and regulations in force thereunder from time to time;
1.2 “Act 8/2011” means the Sectional Titles Schemes Management Act No. 8 of 2011 as amended, and any regulations in force thereunder from time to time;
1.3 “Act 9/2011” means the Community Schemes Ombud Service Act No. 9 of 2011 as amended, and any regulations in force thereunder from time to time;
1.4 “Act 22/2019” means the Property Practitioners Act No 22 of 2019 as amended, and any regulations in force thereunder from time to time;
1.5 “Architect” means ASA Architects (Pty) Ltd appointed by the Seller;
1.6 “Body Corporate” means the controlling body of the Scheme to be established in terms of Act 8/2011;
1.7 “Buildings” means the buildings to be erected on the land;
1.8 “Conditions of Sale” means these conditions of sale;
1.9 “Conservation Servitude” means the conservation Servitude comprising the grassland, wetland and 1:100-year flood line registered over a part of the Land;
1.10 “Contract” means this Contract of Sale and all annexures hereto;
1.11 “Conveyancers” means the Conveyancers described in clause 1.12 of the Contract of Sale;
1.12 “CPA” means the Consumer Protection Act No 68 of 2008, as amended, and regulations made in terms of the Act;
1.13 “Date of Signature” means the date of signature of this Contract by the last signing of the Seller or Purchaser;
1.14 “Date of Transfer” means the date of registration of transfer of the Property into the name of the Purchaser in the Deeds Registry in Pietermaritzburg;
1.15 “Date of Possession” means the date of issue of the practical completion certificate by the Principle Agent for beneficial possession from which date all risk, profit and loss in and to the Property shall pass to the Purchaser, who shall be liable for estimated levies and other outgoings in respect of the Property;
1.16 “Days” means ordinary calendar days, including Saturdays, Sundays and public holidays;
1.17 “Developer” means the Seller;
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1.18 “Ecosystem Management Plan” means the plan which will guide the management and use of the Conservation Servitude;
1.19 “Exclusive Use Area/s” means portions of the common property as referred to in clause 1.4.2 of the Contract of Sale which shall be allocated as garden area(s) and parking bay(s) in accordance with clause 8.3 below;
1.20 “Juristic Person” means a partnership, association, trust, body corporate, company, close corporation or other legal or juristic person;
1.21 “Land” means the land described in clause 1.3.2 of the Contract of Sale;
1.22 “Land Surveyor” means Kim De Villers & Associates;
1.23 “Participation Quota” means, in relation to a section or the owner of a section, a percentage determined in accordance with the provisions of Section 32 (1) of Act 95/1986 in respect of that Section for the purposes referred to in Section 32(3) of that Act and shown on a Sectional Plan in accordance with the provisions of section 5(3)(g) of that Act.
1.24 “Plans” means the site plan being Annexure “B” hereto, block plan being Annexure “C1” hereto, elevations being Annexure “C2” hereto and floor plan of the Section being Annexure “D” hereto.
1.25 “Property” means the Unit to be established in terms of Act 95/1986, consisting of:
1.25.1 the Section;
1.25.2 an undivided share in the common property in the Scheme apportioned to the Section in accordance with the Participation Quota to be specified on the Sectional Plan; and
1.25.3 the Exclusive Use Area/s.
1.26 “Property Practitioner” means the party described in clause 1.11 of the Contract of Sale;
1.27 “Purchaser” means the party referred to in clause 1.2 of the Contract of Sale, his successors in title and assigns;
1.28 “Rules” means the rules of the Body Corporate. The Body Corporate Management and Conduct Rules means: –
1.28.1 the Management Rules referred to in Act 8/2011 supplemented by Additional Management Rules as contained in Annexure “G1” and such further Additional Management Rules as may be proposed at the time of the opening the Sectional Title Register; and
1.28.2 the Substituted Conduct Rules as are contained in Annexure “G2” and such further Additional Conduct Rules as may be proposed prior to the opening the Sectional Title Register;
1.29 “Schedule” means the Schedule described in clause 1 of the Contract of Sale;
1.30 “Schedule of Finishes” means the specifications attached hereto marked “F”. It is specifically recorded that the specifications contained in the Schedule of Finishes are subject to amendment from time to time and subject to final revision by the Architect and any reference to these specifications shall refer to final amended specifications as determined by the Architect;
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1.31 “Scheme” means the sectional title scheme described in clause 1.3.1 of the Contract of Sale to be registered in accordance with the provisions of Act 95/1986 in respect of the Land and
Buildings to be constructed thereon;
1.32 “Section” means the section comprised in and forming part of the Unit as described in clause 1.4.1 of the Contract of Sale;
1.33 “Sectional Plan” means the Sectional Plan to be prepared by the Land Surveyor in respect of the Buildings comprised in the Scheme;
1.34 “Sectional Title Register” means the register referred to in section 12 (1) (b) of Act 8/2011, and includes any sectional plan registered under said Act;
1.35 “Seller” means the party referred to in clause 1.1 of the Contract of Sale;
1.36 “Unit” means the Section purchased by the Purchaser from the Seller together with the undivided share in the common property apportioned to the Section in accordance with the Participation Quota to be specified on the Sectional Plan;
1.37 words importing a gender shall include all genders and the singular shall include the plural and vice versa;
1.38 words or expressions defined in the Acts shall have the same meanings in this Contract;
1.39 clause headings are inserted purely for convenience and shall not be relevant in interpreting the contents of the clauses to which they relate;
1.40 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 Contract shall prejudice the Seller’s rights under this Contract in any manner whatsoever, or be regarded as a waiver of the Seller’s rights in terms of this Contract, 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 Contract;
1.41 if there is any conflict between the provisions or the information in the Contract and the plans and schedules which constitute annexures to this Contract, the provisions of the Contract shall prevail and be regarded as correct and binding;
1.42 any reference to a natural person shall include the legal person and/or an association of persons and vice versa;
1.43 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 the provision as if it was a substantive provision contained in the body of this Contract;
1.44 if a number is reflected in numerals and words, the words shall prevail in the event of any conflict between the two; and
1.45 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;
1.46 in interpreting this Contract, no provision shall be construed in a limiting fashion or in accordance with the Eiusdem Generis Rule (i.e., whenever specific words of a particular class are used in conjunction with general words then the specific words shall not limit the scope of the
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general words. If any provision is followed by the word “including” in specific examples, such examples must not be construed as to limit the general ambit of the provision concerned);
1.47 any reference to any statute, legislation or regulations shall be deemed to include any lawful amendments thereto or re-enactments thereof;
1.48 this Contract shall be governed by and construed according to the Laws of the Republic of South Africa;
1.49 the expiration or termination of this Contract shall not affect those provisions of this Contract 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;
1.50 this Contract 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 Contract 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 may be;
1.51 nothing in the Contract shall be construed as binding the Seller and the Purchaser to the provisions of the CPA in instances where the CPA would not otherwise be binding on them. Where the CPA is applicable, the provisions of the Contract shall be read in conjunction with the provisions of the CPA, and insofar as the provisions of the Contract are inconsistent with the provisions of the CPA, the provisions of the CPA shall prevail;
1.52 a fully executed email copy of this Contract shall be accepted as an original and this Contract 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 Contract as at the Date of Signature; and
1.53 this Contract incorporates annexures by reference, which annexures shall have the same force and effect as the provisions set out in the body of this Contract. The various documents forming part of this Contract are to be taken as mutually explanatory. In the event of any conflict or inconsistency the provisions contained in the main body of the Contract will prevail.
2. SUSPENSIVE CONDITIONS
2.1 Mortgage Bond
2.1.1 If this Contract reflects a mortgage bond in clause 1.6.3 of the Contract of Sale, then this Contract is subject to and conditional upon the Purchaser obtaining a loan for the amount set out in clause 1.6.3 of the Contract of Sale from a recognized financial institution and the Seller receiving a copy of the written approval of such loan by the aforesaid financial institution within 45 (forty five) days from the Date of Signature or within such further period of time that the Seller, entirely in its own discretion, may grant to the Purchaser in writing.
2.1.2 It is the intention of the Seller and the Purchaser that the Conveyancers be appointed by the financial institution to attend to the registration of the mortgage bond in favour of the aforesaid financial institution on Date of Transfer. The Purchaser undertakes to utilise his best endeavours to prevail upon the aforesaid financial institution to appoint the Conveyancers in this regard.
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2.1.3 It is specifically recorded that on or about the Date of Possession the financial institution granting the mortgage bond shall require the Purchaser to sign a Letter of Satisfaction. In no way detracting from the Seller or Purchaser’s rights in this Contract or in terms of Law, it is specifically recorded and agreed that the Purchaser shall in no way delay or refuse to comply with his obligations to timeously and on request sign the aforesaid Letter of Satisfaction without qualification. In this regard the Purchaser is specifically referred to his rights as set out under clause 6 below and accepts the provisions of the penalties as set out under clause 16 below.
2.1.4 The Purchaser warrants that:
2.1.4.1 he is aware of the financial requirements of financial institutions relating to the mortgage loan that is to be applied for and undertakes to the best of his ability to immediately provide and sign, upon request by the relevant financial institution concerned, all information and documentation which may be required by it in order to apply for and approve his loan application;
2.1.4.2 there are no existing judgements noted against his name which would preclude any financial institution from approving his loan application.
2.2 Sale of property (delete where not applicable)
2.2.1 Purchase Price to come from the sale of the Purchaser’s property already sold
The Purchaser warrants that he has sold his existing property as provided for in clause 1.7 of the Contract of Sale, which sale is not subject to any suspensive conditions.
OR
2.2.1 Purchase Price to come from the conditional sale of the Purchaser’s property already sold
The Purchaser warrants that he has sold his existing property as provided for in clause 1.7 of the Contract of Sale, subject however to certain suspensive conditions which shall be required to be fulfilled within 45 (forty five) days after the Date of Signature. If the sale of the Purchaser’s existing property is dependent on prior transfers, then the suspensive conditions relating to the sale of the Purchaser’s existing property shall only be deemed to have been fulfilled when such prior transfers have been registered.
OR
2.2.1 Sale subject to the Sale of the Purchaser’s property
This sale is conditional upon the sale of the Purchaser’s property as provided for in clause 1.7 of the Contract of Sale, which the Purchaser undertakes to actively market and to ensure the fulfilment of all suspensive conditions contained in that sale agreement within 90 (ninety) days after the Date of Signature. If the sale of the Purchaser’s existing property is dependent on prior transfers, then the suspensive conditions relating to the sale of the Purchaser’s existing property shall only be deemed to have been fulfilled when such prior transfers have been registered.
2.2.1 This Contract is also subject to the Purchaser’s conveyancers effecting registration of transfer of the existing property within 60 (sixty) days of the sale becoming a conclusive sale.
2.2.2 In the event of the Seller receiving any other written offer which is not subject to the sale of
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another property from a bona fide third party, before the sale of the Purchaser’s existing property becomes conclusive, which offer the Seller wishes to accept, the Seller shall by written notice advise the Purchaser of such offer and the Purchaser shall within 48 (forty eight) hours of receipt of such notice waive the suspensive conditions in this clause in writing to the Conveyancers failing which the Seller shall be entitled to accept the offer from the new Purchaser in which event this offer shall fall away and be of no further force or effect.
2.3 It is recorded that the suspensive conditions contained in 2.1 and/or 2.2 are inserted for the benefit of the Purchaser.
2.4 The Purchaser may elect to waive compliance with either one or both suspensive conditions by giving written notice to the Seller within the time period afforded to the Purchaser as referred to in 2.1 and 2.2 above.
2.5 Upon delivery of such notice of waiver, the suspensive condition/s shall be deemed to have been fulfilled and this Contract shall be of full force and effect.
2.6 Should the suspensive conditions referred to in 2.1 and/or 2.2 not be fulfilled within the prescribed time periods aforesaid and the period for fulfilment thereof not be extended in writing by the parties, then the Contract shall lapse and in that event the parties shall be obliged to restore each other to the status quo ante as at the Date of Signature.
3. CONDITIONS OF TITLE AND OWNERSHIP
The Purchaser shall be obliged to accept ownership of the Property subject to: –
3.1 the conditions, reservations and servitudes which affect the Property;
3.2 such conditions of sectional title as are imposed by the Seller, the local authority and the Minister of Local Government (KwaZulu-Natal);
3.3 such other conditions in this Contract as the Developer may require to be registered against the title deeds to the Property on the Date of Transfer, in such form as the Registrar of Deeds may permit.
4. OPENING OF REGISTER
4.1 The Seller shall procure the registration of the Sectional Plans in phases upon completion of the Buildings.
4.2 If the Seller has not obtained the opening of the Sectional Title Register which relates to the Property hereby sold within 24 (twenty four) months of Date of Signature then the Purchaser shall at any time thereafter, have the right to cancel this sale by giving written notice thereof to the Seller, in which event the Purchaser shall forthwith restore possession of the Property to the Seller or his nominee as the Purchaser shall not be entitled to claim or allege any right of possession or tenancy of the Property. Against such restoration, the Purchaser shall be entitled to a refund of all payments made by the Purchaser in respect of the capital amount of the purchase price plus interest earned on any portion of the purchase price held in trust. Neither party shall have any claim of any nature whatsoever against the other arising out of such cancellation, provided the Unit is returned to the Seller in a condition which is similar to that in which it was on the date of possession, fair wear and tear excepted.
4.3 All costs of and incidental to the approval and registration of the Sectional Plans, the opening of
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the Sectional Title Register for all phases, the issue to the Seller of the Certificates of Real Right in terms of Section 25 of Act 95/1986, the issue to the Seller of the Certificates of Registered Sectional Title for the units referred to in the Sectional Plans, shall be paid by the Seller. The Seller shall also be responsible for the costs of preparing a common property allocation plan as provided for in section 10(8) of Act 8/2011 which plan shall only be finalised on completion of the Scheme.
4.4 Until the Sectional Title Register is opened in the Deeds Office and the Body Corporate has been constituted, the Seller shall be entitled to exercise all the rights and powers which the Body Corporate would be empowered to exercise under Act 8/2011 in relation to the Scheme and owners or occupiers of sections in the building, as if the Register was open and the Property had been transferred to the Purchaser.
4.5 Until the applicable Sectional Title Register is opened and transfer of the Property to the Purchaser is effected, and he becomes a member of the Body Corporate, the Purchaser shall continue to be liable to the Seller for the due and faithful performance of all his obligations in terms of this Contract and the Rules.
4.6 Any breach by the Purchaser of the Rules shall constitute a breach of the entire Contract in which event the Seller may avail itself of the provisions of clauses 14 and 15 hereof.
5. COMPLETION OF THE SECTION
5.1 The building work will be undertaken by the Seller and the Seller shall ensure that the Section is completed substantially in accordance with the Plans and Schedule of Finishes and in a proper and workmanlike manner in compliance with National Building Regulations and the requirements of the local authority.
5.2 The Seller may, in its sole discretion, elect not to install any item on the Schedule of Finishes, provided that the Seller installs a similar item of a similar quality in its place. If there is any dispute as to whether the Seller has installed an item of similar quality, such disputes shall be referred to the Architect, acting as an expert and not an arbitrator, whose decision shall be final and binding on the parties
5.3 The Purchaser acknowledges that the Section will be situated on the Land in substantially the position as indicated on the site plan and is to be built substantially in accordance with the Plans. If there is any dispute between the Purchaser and the Seller then such dispute shall be referred to the Architect, acting as an expert and not as an arbitrator, whose decision shall be final and binding upon the parties.
5.4 The Purchaser acknowledges that he shall not be entitled to give any instructions of any nature to the building contractors, subcontractors, the Architect or anyone else engaged upon the building work other than the representative of the Seller. If at the time when possession of the Section is given to the Purchaser the building work in respect of the rest of the scheme has not been completed, then the provisions of this clause shall apply to the Buildings still to be erected, or still in the course of erection, and to those areas of the Land where building work is being performed.
5.5 The Purchaser acknowledges that the Seller has established several basic configurations for sections to be built on the Land. The Seller shall have the right at its sole discretion to determine the number of sections to be built in terms of each configuration notwithstanding the plan and estimated participation quota schedule lodged in the Deeds Registry by virtue of Section 25 of Act 95/1986. The Purchaser acknowledges that the Seller’s right will not be prejudicial to the
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Purchaser and undertakes not to make application to Court as provided for in Section 25(13) of the Act.
5.6 In no way detracting from the Seller’s rights in terms of this Contract or at Law, it is specifically recorded that the Purchaser shall not be entitled to delay or refuse to comply with his obligations in terms of this Contract, if he disputes that the Property has been erected and completed as aforesaid in clause 5.1 or should he believe that the Seller has not complied with any of its obligations in terms of this Contract. Any dispute in this regard shall be referred to the Architect who, acting as an expert and not as an arbitrator, shall determine such dispute and his decision shall be final and binding on the parties. In addition, the Seller may elect, in its sole and absolute discretion, to cancel this Contract forthwith.
5.7 It is recorded that the Schedule of Finishes makes provision for the Purchaser to choose certain finishes. The Purchaser shall be obliged to make his selection in this regard within 15 (fifteen) days after the Seller gives the Purchaser written notice thereof, failing which the Seller will be entitled to make this selection on the Purchaser’s behalf. Any amounts payable in terms hereof shall be payable by the Purchaser to the Seller on demand, prior to installation and before the Date of Transfer. Should the Purchaser not make or secure payment timeously upon demand, the mora and/or breach provisions of the sale agreement may become applicable, or the Seller may elect, at its sole discretion, to ignore the Purchaser’s selection and the Purchaser shall be obliged to accept unit accordingly. This clause is not applicable where Units are already in the course of construction in which instance the Schedule of Finishes will specify the finishes applicable to the Unit.
5.8 The Purchaser shall, within 30 (thirty) days of the Date of Possession, deliver to the Seller a list, signed by himself, enumerating any defects in the Section where same are due to defective materials or workmanship, and the Seller shall procure that such defects are made good as expeditiously as possible in the circumstances. Once such defects have been made good to the satisfaction of the Architect, acting as an expert and not an arbitrator, and whose decision shall be final and binding on the parties, the Purchaser shall have no further claim against the Seller, save as otherwise provided for herein. Should the Purchaser fail to deliver the aforesaid list to the Seller within the aforesaid 30 (thirty) day period, then in that event, the Purchaser shall be deemed to have inspected the Section and not found any defects therein.
5.9 Save as provided in this Contract and the CPA to the contrary, the Purchaser purchases the Property voetstoots and shall have no claim against the Seller in respect of any defects whether latent or patent in the Property or the common property of the Scheme.
5.10 The Seller warrants that the Property will be enrolled with the National Home Builders Registration Council as contemplated in the Housing Consumer Protection Measures Act, No. 95 of 1998.
5.11 As is required in terms of Section 13(2)(a) of the aforesaid Act 95 of 1998, the Seller warrants that:
5.11.1 the Section shall be constructed in a proper and workmanlike manner;
5.11.2 the Section will be fit for habitation on the Date of Possession;
5.11.3 the Section shall be constructed in accordance with:
5.11.3.1 the National Home Builders Registration Council Technical Requirements to the extent applicable to the Section at the date of enrolment of such Section with the National Home Builders Registration Council; and
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5.11.3.2 the terms, plans and specifications referred to in this Contract.
5.12 As provided for in Section 13(2)(b) of the aforesaid Act 95 of 1998, the Seller undertakes to:
5.12.1 rectify any major structural defects in the Section caused by non-compliance with the National Home Builders Registration Council’s Technical Requirements which occur within a period of 5 (five) years from the Date of Possession and of which the Seller is notified of by the Purchaser within that period;
5.12.2 rectify non-compliance with or deviation from the terms, Plans and Schedule of Finishes referred to in this Contract or any deficiency related to design, workmanship or material, of which the Seller is notified by the Purchaser of within a period of 3 (three) months from the Date of Possession;
5.12.3 repair roof leaks attributable to workmanship, design or materials occurring and of which the Seller is notified by the Purchaser within a period of 12 (twelve) months from the Date of Possession.
5.12.4 Notwithstanding anything contained herein or elsewhere, under no circumstances whatsoever, shall the Seller be liable to make good any damage to any Section or the common property of the Scheme caused by the Purchaser or the Purchaser’s employees, contractors, agents, representatives or any other person who comes upon the Scheme by virtue of the Purchaser’s rights thereto. Further, the Purchaser shall be liable for the costs of repairing any damage caused to the common property or any section in the Scheme by the Purchaser, its contractors, agents, representatives, employees or other persons who come upon the Scheme by virtue of the Purchaser’s rights thereto.
5.12.5 Notwithstanding anything contained herein or elsewhere, and in no way detracting from the generality of any other provision of this Contract, it is specifically recorded that the Seller shall not be liable for the rectification of any defects or faults in the Section caused by surface water, storm water or rain water, normal settlement or cracking resulting from normal settlement, normal shrinkage, thermo cracking, geological disturbances, or normal wear and tear from use or neglect by the Purchaser.
5.12.6 Notwithstanding anything contained herein or elsewhere, under no circumstances whatsoever, shall the Seller be responsible for the payment of special or consequential damages arising out of any defects in any buildings or part of the Scheme, including the Unit.
5.13 The Purchaser agrees that the Seller and/or its agent, contractors and workmen shall at all times have access to the Section for the purposes of carrying out such work as may be necessary to enable the contractor to rectify any defects in terms of its contract with the Seller. The Purchaser shall have no claim whatsoever against the Seller by reason of any inconvenience or interference with the Purchaser’s rights arising here out and the Purchaser shall not, in any way whatsoever, interfere with the performance of the aforesaid work.
6. POSSESSION
6.1 The Purchaser shall be entitled to inspect the Section, prior to the Date of Possession, at such times and on such dates as may be agreed to by the Seller (whose agreement shall not be unreasonably withheld), the Purchaser acknowledging that his visits to the site in this regard need to be limited and regulated due to the fact that the Land is partially a construction site (and thus poses a hazard to visitors) and further, as the presence of parties not connected with the construction of the Scheme may hinder the progress of same.
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6.2 The Seller undertakes to use its best endeavours to give the Purchaser beneficial occupation of the Section on the anticipated Date of Possession as set out in clause 1.8 of the Contract of Sale.
6.3 The Purchaser acknowledges that the actual possession date may vary from that stated and the Seller undertakes in this regard that in the event that there is a delay, or acceleration of the possession date, “Date of Possession” shall be amended to mean such earlier or later date. The Seller will endeavour to give the Purchaser at least 30 (thirty) days written notice, where possible and/or foreseeable, of the new Date of Possession.
6.4 In no way detracting from the Seller’s rights in terms of this Contract or at Law, it is specifically recorded that the Purchaser shall not be entitled to delay or refuse to comply with his obligations in terms of this Contract, if he disputes that the Section is sufficiently complete for beneficial Possession, or should he believe that the Seller has not complied with its obligations in terms of clause 6.2 hereof, or should he believe that the Seller has not compiled with any other of its obligations in terms of this Contract. Any dispute as to whether or not the Section is sufficiently complete for possession shall be referred to the Architect who, acting as an expert and not as an arbitrator, shall determine such dispute and his decision shall be final and binding on the parties.
6.5 Notwithstanding anything contained herein or elsewhere, the Seller shall not incur any liability whatsoever by reason of the Section not being available for possession on the anticipated Date of Possession.
6.6 The Purchaser waives all claims against the Seller for any loss or damage to property or any injury to person which the Purchaser may sustain in or about the Scheme, the Section, or on any other portion of the Land and indemnifies the Seller against any such claim that may be made against the Seller by a member of the Purchaser’s family or any tenant, employee, nominee, invitee or any other person, by virtue of the Purchaser’s rights thereto, for any loss or damage to property or injury to person suffered in or about the Scheme, the Section, or any other part of the Land, howsoever such loss or damage or injury to person may be caused (save for any damage to property or injury to person caused by the intentional or grossly negligent act of the Seller).
6.7 Notwithstanding anything contained herein, the Purchaser shall not be entitled to beneficial occupation of the Section until such time as he has made or secured all payments in terms of the purchase price, costs and all other amounts for which he is liable in terms of this Contract and signed all such documentation and supplied all such information as to enable the Conveyancers to effect transfer of the Property without delay.
6.8 Should the Property be sufficiently complete for beneficial occupation, but the Purchaser not have compiled with his obligations as referred to in 6.7 above, then in that event, without prejudice to the Seller’s right to claim specific performance or to any other rights the Seller may have in terms of this Contract or at Law, and at the Seller’s election, the keys to the Property shall only be given to the Purchaser once he has compiled with his aforesaid obligations. Notwithstanding the aforesaid, the Purchaser shall be deemed to be liable to pay occupational rental, levies, rates, utilities and all other outgoings in respect of the Property as if he had been given occupation thereof.
6.9 From the Date of Possession, the Purchaser:
6.9.1 shall be entitled to beneficial occupation of the Section (except in those instances as provided for in 6.7 above) and it shall be used subject to and in compliance with Act 8/2011, and the Rules of the Body Corporate and shall be used for residential purposes only and for no other purpose whatsoever;
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6.9.2 shall, at his own expense, maintain the interior of the Section in a good, clean and thoroughly tenantable and attractive condition, and where necessary repair or refurbish any damaged item and replace any lost item and permit the Seller or Body Corporate or its agent at all reasonable times to enter and inspect the Section, and if found to be in default of this provision, the Seller shall have the right at the cost of the Purchaser to carry out such repairs as are necessary to maintain the particular Section in good state of repair or to comply with any law, by-law, ordinance or regulation. The Purchaser shall refund any such amounts expended by the Seller on demand;
6.9.3 shall, at his own expense, maintain in a good working order and condition all electrical, plumbing sewerage installations and appurtenances of whatever nature, within the Section;
6.9.4 shall be entitled to the use and enjoyment, along with occupiers of other sections in the Scheme, of those parts of the common property of the Scheme not subject to rights of exclusive use, subject to the Rules. In using the common property of the Scheme, the Purchaser shall do so in such manner so as to not interfere unduly or unreasonably with the lawful rights of the use and enjoyment thereof by other occupiers of the units in the Scheme or other persons lawfully upon the Scheme;
6.9.5 shall procure that all other occupants of the Section comply with the provisions of this Contract;
6.9.6 shall accept the benefit of and risk in and to the Property;
6.9.7 shall be liable for the payment of all services provided to the Section and any deposits or connection fees payable in connection with the supply of such services. In no way detracting from the generality of the aforesaid, it is specifically recorded that it shall be incumbent upon the Purchaser to make application for, and to pay the relevant deposits in respect of water, electricity, sewer and telephone connections to the Property;
6.9.8 shall not use the Section in such a manner as to cause damage thereto or to the other sections, nor shall he store or permit the storage therein of any flammable materials which may cause damage or pose a fire risk, or vitiate any policy of insurance in respect of the Buildings, or which is likely to have the effect of increasing the premium payable in terms of such insurance policy;
6.9.9 shall not be entitled to divide the Property for the purpose of selling, donating or in any other manner alienating or disposing of the Purchaser’s right of occupancy of any portion thereof to any other person prior to the Date of Transfer;
6.9.10 shall not be entitled to let or otherwise part with possession of the Section, except upon the express prior written permission of the Seller and on condition that any such letting and/or parting with possession shall in no way release the Purchaser from any of the Purchaser’s obligations to the Seller hereunder or in terms of the Rules that may be enforceable from time to time;
6.9.11 acknowledges that on the Date of Possession the Scheme may be incomplete and that he and every person claiming occupation and use through him may suffer inconvenience from building operations and from noise and dust resulting therefrom and the Purchaser shall have no claim whatsoever against the Seller, it’s contractors or the Body Corporate, by reason of any such inconvenience;
6.9.12 acknowledges that, on the Date of Possession, construction of the infrastructure (including
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driveways) on the Land may not be completed until the erection of all the Buildings, provided however that prior to possession of the Section, the Seller will provide access to the Section for use by the occupants of the Section and their invitees and their vehicles; and
6.9.13 acknowledges that from the Date of Possession he shall be responsible for the security of the Section purchased.
6.10 The Seller shall, either personally or through its servants or agents, be entitled at all reasonable times to have access to the Section and the common property of the Scheme for the purpose of inspection or to carry out any maintenance or repairs whether relative to the Section or not, and the Purchaser shall have no claim against the Seller for any disturbance in his possession arising out of the exercise of the rights hereby conferred.
7. PURCHASER’S ACKNOWLEDGMENTS
7.1 The Purchaser acknowledges that: –
7.1.1 the Seller shall be entitled to subdivide any section in the Scheme owned by it and/or consolidate any two adjacent sections in the Scheme owned by it, as the Seller in its sole and absolute discretion requires. The Purchaser hereby consents to the aforesaid subdivisions and consolidations, insofar as his consent may be required, and hereby irrevocably and in rem suam, nominates, constitutes and appoints any director of the Seller, with power of substitution, to call and attend any meeting of the Body Corporate or of the trustees of the Body Corporate, on the Purchaser’s behalf, and to vote in favour of such resolution that may be required to give effect to any consolidation or subdivision of the sections in the Scheme that the Seller may require, as aforesaid;
7.1.2 for so long as the Seller owns a section or the right to extend the Scheme by the erection of at least one section, as anticipated in Section 25 of Act 95/1986;
7.1.2.1 the Purchaser irrevocably and in rem suam appoints the Seller to exercise the Purchaser’s voting rights with regard to the appointment of the Trustees of the Body Corporate and the appointment of Managing Agents of the Scheme; and
7.1.2.2 the Purchaser shall not be entitled to vote in favour of the amendment of any of the Rules without the Seller’s prior written consent,
provided all the Seller’s rights and obligations in terms hereof shall lapse when the Seller no longer owns a section in the Scheme or the right to extend the Scheme by the erection of at least one section, as anticipated in Section 25 of Act 95/1986.
7.1.3 the Purchaser will be bound in relation to the occupancy of the Property, and in relation to the use of the common property, by the Conduct Rules applicable to the Scheme. The Purchaser acknowledges that he has perused the said Conduct Rules and has fully acquainted himself with the contents thereof.
7.1.4 the Purchaser will be bound by the Ecosystem Management Plan as defined in clause 1.18 above in relation to the use of the Conservation Servitude.
7.1.5 the Seller may make such alterations or amendments to the Management and/or Conduct Rules as well as to file such altered and amended Management and/or Conduct Rules as required by Act 9/2011, as the Seller believes is necessary to give effect to the provisions of this Contract, and so as to provide for the harmonious operation of this Scheme, and for
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that purpose the Purchaser irrevocably and in rem suam, nominates, constitutes and appoints the Seller as the Purchaser’s duly authorised attorney, agent and proxy on the Purchaser’s behalf, and to the Purchaser’s exclusion, to attend all such meetings and do all such things as are necessary to give effect to the provisions of this clause. Provided all the Seller’s rights and obligations in terms hereof shall lapse when the Seller no longer owns a section in the Scheme or the right to extend the Scheme by the erection of at least one section, as anticipated in Section 25 of Act 95/1986;
7.1.6 he has purchased the Property in the Scheme and transfers may be effected in phases. Transfer to the Purchaser will take place simultaneously with transfers to other purchasers in each phase of the Scheme, as a result of which transfer of the Property to the Purchaser may be delayed. The Purchaser shall pay occupational rental and other charges described in clause 6 above from Date of Possession to Date of Transfer, both days inclusive;
7.1.7 the maximum number of people who shall be entitled to occupy the property shall be determined by multiplying the number of bedrooms of any Unit by two;
7.1.8 the Seller and/or the Property Practitioner may have used models, brochures and other advertising material in marketing the Scheme to the Purchaser and the public at large. The furniture, finishes and fittings shown in the advertising material is for advertisement purposes only and the finishes shall be in accordance with the Schedule of Finishes;
7.1.9 he understands the English language and considers itself fluent therein;
7.1.10 he has had an opportunity to carefully read and consider the provisions of the Contract and that he has been free to secure independent legal advice in respect of the provisions of same;
7.1.11 the Seller undertook that the Seller or the Conveyancers, would explain any provisions of the Contract which the Purchaser may not have understood fully and, to the extent that the Purchaser made the Seller aware of any provisions of the Contract he did not understand, such provisions were fully explained to the Purchaser;
7.1.12 the Seller shall enter into an agreement with its nominated service provider to procure the installation of the necessary infrastructure required in order to provide electronic communication services to the Property which will include the laying of a fibre optic cable on the Scheme. The Purchaser shall be responsible for contracting with the internet service provider of his choice from the list of available service providers and for purchasing the required hardware, including the hardware for DSTV if so required.
7.2 It is recorded that the eThekwini Municipality requires the discharge and treatment of sewerage and effluent emanating from the Scheme to be dealt with privately. In this regard, the Developer shall enter into agreement with the eThekwini Municipality and Fisher Road Water Service Provider (Pty) Ltd on such terms and conditions as the Developer deems fit, which agreement shall be ceded to the Body Corporate at the inaugural meeting, in order to deal with the efficient discharge and treatment of sewerage and effluent. The costs of discharging and treating the sewerage and effluent emanating from the Scheme in terms of the agreement contemplated above, shall be met by the Body Corporate from the monthly levy payable to it by its members. The Developer however warrants that the aforesaid Fisher Road Waste Water Services Provider (Pty) Ltd owns the property on Fisher Road on which a fully operational sewer works has been constructed (which sewer works is capable of dealing with the treatment of all sewerage and effluent emanating from the Scheme when fully developed).
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7.3 It is recorded that the Unit may be served by a solar hot water generation system or an electric geyser in accordance with eThekwini Municipality requirements.
7.4 The Purchaser shall not, sell, assign, cede or dispose of the Purchaser’s rights under this Contract.
8. RULES
8.1 The Rules of the Scheme will be approved by and filed with the Community Schemes Ombud Service in accordance with Act 9/2011 prior to the opening of the Sectional Title Register.
8.2 The Purchaser undertakes and agrees to be bound by all the terms and conditions contained in the Rules.
8.3 The Purchaser acknowledges that it is the Seller’s intention to allocate exclusive use areas by way of an allocation to be contained in the Rules. The Purchaser further acknowledges that it may not be practicable to allocate such exclusive use areas until such time as the entire Scheme has been completed, and the Purchaser hereby irrevocably and in rem suam appoints the Seller as his duly authorised attorney, agent and proxy and on his behalf and to his exclusion, to attend all meetings either special or general, of the Body Corporate, and then and there to do all such things as are necessary to vote in favour of any proposed amendment of the Rules required to allocate exclusive use areas as described above. The costs of preparing the exclusive use allocation plan in terms of section 10(8) of Act 8/2011 shall be borne by the Seller.
9. OCCUPATIONAL RENTAL
From Date of Possession until the Date of Transfer (both days inclusive), the Purchaser shall pay to the Seller monthly occupational rental as stipulated in clause 1.9 of the Contract of Sale. Such occupational rental shall be payable monthly in advance on the 1st (first) day of each and every month and shall be calculated using the aforesaid prime overdraft rate on the first day of that particular month. All payments in terms of this clause are to be made payable to the Conveyancers upon demand.
10. LEVY AND OTHER CHARGES
10.1 The Purchaser accepts liability from the Date of Possession for the payment of a monthly levy referred to in clause 1.10. of the Contract of Sale to the Body Corporate (and prior to the Body Corporate’s formation, to the Seller) in respect of those items listed in Act 8/2011.
10.2 The amount as determined in clause 1.10 of the Contract of Sale is an estimation of the monthly levies payable by the Purchaser to the Body Corporate, made in good faith by the Seller and the Seller shall not be responsible for any inaccuracy in this estimation.
11. TRANSFER
11.1 Transfer of the Property shall be attended to by the Conveyancers referred to in clause 1.12 of the Contract of Sale.
11.2 The Purchaser shall immediately upon request by the Conveyancers do all such things and furnish them with all necessary information and documentation and sign all such documentation as is required to prepare for and effect registration of transfer into the name of the Purchaser.
11.3 All conveyancing fees and disbursements incidental to the preparation and registration of transfer
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to and bonds by the Purchaser, occupational rent, and a pro rata share of the rates and levies, shall be paid by the Purchaser to the Conveyancers immediately upon request.
11.4 The Purchaser acknowledges that:
11.4.1 he is aware that in order for the sale to proceed a tax clearance is required from SARS. The Purchaser warrants that all income tax and all VAT obligations are current and undertakes to the best of his ability immediately to provide upon request by SARS, all information, other documentation which may be required by them in order to enable them to issue a tax clearance certificate and to facilitate prompt issue of the transfer duty exemption receipt;
11.4.2 a valid query by SARS regarding the Purchaser’s tax affairs;
11.4.3 failure to comply with the request by the Conveyancers to furnish information or documentation required by them or to sign conveyancing documents, or to pay conveyancing costs upon request; shall constitute a breach by the Purchaser of his obligations and shall entitle the Seller to give notice in terms of Clauses 14 and/or 15 hereof;
11.4.4 he shall not be entitled to transfer of the Property until the whole of the purchase price, costs, interest and other charges have been paid or secured to the Conveyancers’ satisfaction;
11.4.5 the Seller will not be in a position to give transfer of the Property to the Purchaser until such time as the Buildings which comprises the Property has been completed, and the Sectional Plan relating thereto has been registered in the Deeds Office, Pietermaritzburg;
11.4.6 subject to the Sectional Plan aforesaid having been registered, the Purchaser shall be entitled to transfer when, and not until, the full purchase price costs, interest and other charges have been paid or secured to the Conveyancers’ satisfaction;
11.4.7 upon registration of transfer, an adjustment in respect of the parties’ liability in respect of occupational interest, levies and other charges relating to the Property, shall be made by the Conveyancers;
11.4.8 the documentation necessary to effect registration of transfer may be lodged in the Deeds Registry as part of a set, including the transfer of other sections in the Scheme, and that no documentation in that set, including the documentation relating to the transfer of the Property, can be withdrawn from the Deeds Registry without the entire set being withdrawn. If it becomes necessary to withdraw the aforesaid set from the Deeds Registry, due to the fact that the Purchaser has not complied with his obligations in terms of this Contract, the Seller shall suffer damages, including, but in no way limited to the loss of interest that it would have accrued to the Seller on the accumulative purchase price of the properties in the set, from the date of withdrawal of the set until the date of its re-lodgement and subsequent registration. The Seller shall be entitled to recover from the Purchaser all damages which the Seller may have suffered (including the aforesaid interest) as a result of the aforesaid set having to be withdrawn and all transfers in the set having been delayed by virtue of the Purchasers failure to comply with the provisions of this Contract.
12. INSURANCE
Until the Sectional Title Register has been opened and the Body Corporate established the Section shall be insured by the Seller with an insurance company selected by the Seller against such risks and perils as the Seller may require for such sums as the Seller may determine, but substantially in accordance with the provisions of the Rules.
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13. PROPERTY PRACTITIONER’S COMMISSION
13.1 The Purchaser warrants that the Property Practitioner and nobody else initiated this sale and was the effective cause thereof and as such is entitled to Property Practitioner’s Commission, and that the Purchaser was not introduced, either directly or indirectly, to the Seller or the Property by any other Property Practitioner.
13.2 The Seller will pay Property Practitioner’s Commission which commission will be earned and payable upon Date of Transfer and not before, provided that should this Contract be cancelled, or should registration not be effected due to the failure by the Purchaser to carry out all or any of the Purchaser’s obligations in terms of this Contract, then in such event the Purchaser shall be liable to the Property Practitioner for the Property Practitioner’s Commission which will thereupon become immediately due and payable.
13.3 The Property Practitioner warrants the validity of his/her/its Fidelity Fund certificate as at date of signature of this Contract.
13.4 The Mandatory Disclosure Form as defined in Section 1 of Act 22/2019 and as required in terms of section 67(1) of said Act is not applicable to this Contract as the Property is vacant land. As such this Contract may be interpreted in accordance with section 67(2) of said Act.
14. BREACH
If the Purchaser:
14.1.1 fails to pay any amount in terms of this Contract, or commits any breach of the remaining conditions of this Contract or of the Rules, and should the Purchaser fail to remedy such breach within 7 (seven) days of receipt of a written notice calling on him to remedy such breach, or
14.1.2 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 –
14.1.2.1 cancel this Contract, and retake possession of the Property, in which event, 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 case the amount or amounts paid to the Seller or the Conveyancers (including any amount held in trust by the Conveyancers or any interest thereon) may be retained by the Seller by way of set off or partial set off against the damages claimed by the Seller (it being recorded that damages that the Seller may suffer in this regard may include, inter alia, lost interest, agents commission 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 Contract, the difference in such purchase prices) or
14.1.2.2 claim immediate performance by the Purchaser of all his obligations in terms of this Contract whether or not the due date for the performance shall otherwise have arrived.
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14.2 For the purposes of this Contract any act or omission on the part of any tenant, nominee or other person who occupies the Property or invitee of the Purchaser, or of such tenant, nominee or other person who goes about the common property shall be deemed to be an act or omission of the Purchaser.
14.3 If this Contract is cancelled as hereinbefore provided, the Purchaser and all persons claiming a right of possession through the Purchaser shall forthwith be obliged to vacate the Property and to deliver it to the Seller. It is specifically recorded in this regard that no lease or other similar right of possession in favour of the Purchaser shall be created or come into existence by virtue of this Contract. 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 Contract 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 exercised and/or enjoyed by the Purchaser in the interim.
14.4 In the event of the Seller cancelling the sale as contemplated in the above clauses, any and all improvements made to the Property shall belong to and vest in the Seller, without any obligation on the part of the Seller to compensate the Purchaser therefor.
15. MORA AND ARREAR INTEREST
15.1 In the event of the Purchaser failing to comply with any of his obligations or any terms or conditions of this Contract on due date or in the event of there being any delay in connection with the registration of transfer for which the Purchaser is responsible, the Purchaser hereby undertakes to automatically pay interest on the full purchase price at the prime overdraft rate charged from time to time by Investec Bank plus 2%, calculated from the date upon which the obligation in question fell due for performance up to the date upon which it was actually performed, or for the period of any delay in registration of transfer which results therefrom, which period shall be determined solely by the Conveyancers. The Purchaser shall be obliged to pay such penalty interest to the Conveyancers before registration of transfer. A certificate signed by the conveyancers confirming the amount of such interest shall be conclusive proof of the amount owing by the Purchaser to the Seller.
15.2 For the purpose of this clause the Purchaser shall be deemed to be responsible for any delay in the registration of transfer which is caused inter alia by failure on the part of any financial institution from which he obtains mortgage finance, or any bond registration conveyancers nominated by such financial institution to procure the issue of guarantees as contemplated in this Contract and to lodge documents in the Office of the Registrar of Deeds when called upon to do so by the Conveyancers.
15.3 Furthermore, the Purchaser shall automatically, and without notice, be liable for interest on any amounts in arrear at the prime overdraft rate charged from time to time by Investec Bank, which interest shall be calculated from the date upon which such amount became due to date of payment, both says inclusive.
16. DOMICILIUM
16.1 The Parties chose as their respective domicillia citandi et executandi (the address nominated by the Parties where notices may be sent) the physical, postal address and/or email address stated
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in the Schedule.
16.2 Either party shall be entitled to change the domicilium address by giving written notice thereof to the other which may be delivered by hand, by email or by prepaid registered post.
16.3 Any notice which is given by either party to the other party’s domicilium address, being the physical, postal or email address stated in the Schedule, shall be deemed to have been duly given:
16.3.1 if hand delivered; on the day on which hand delivery takes place, either by handing such notice to the party concerned or by placing/affixing it in a prominent place at the party’s domicilium;
16.3.2 if posted by pre-paid registered post; on the fourth day following the date of posting of such notice;
16.3.3 where sent by email to the stated email address in the Schedule to this Contract; on the day on which the email is actually sent which date shall be established by reference to the aforesaid machine’s activity report used to send such notice.
16.4 Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by either party shall be an adequate written notice to it notwithstanding that it was not sent or delivered to its chosen domicilium citandi et executandi.
17. JURISDICTION AND COSTS
17.1 The parties hereby consent to the jurisdiction of the Magistrate’s Court otherwise having jurisdiction under section 28 of Magistrate Court Act of 1944, as amended. Notwithstanding that such proceedings are otherwise beyond the said court’s jurisdiction; this clause shall 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.
17.2 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 might otherwise have jurisdiction.
17.3 All legal costs incurred by either party in consequence of any default of the provisions of this Contract 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 cost 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 judgment awarded in favour of the aggrieved party in relation to, in terms of or arising out of this Contract in respect of any legal proceedings arising out of this Contract.
18. ELECTRICAL CERTIFICATE
18.1 The Seller shall at the Seller’s own expense furnish a certificate of compliance from an accredited person in respect of all electrical installations in the Property in accordance with the requirements of the Electrical Installation Regulations made under the Occupational, Health and Safety Act No. 85 of 1983. Such certificate shall be delivered to the Purchaser prior to the Date of Possession.
18.2 If the accredited person reports that he is unable to issue such certificate of compliance unless certain works are undertaken to the electrical installation, the Seller shall be entitled to have the
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work done so that the certificate can be furnished timeously.
19. TRUSTEE FOR A COMPANY TO BE FORMED
19.1 In the event of the signatory to this Contract having concluded this Contract in his capacity as a Trustee for a company to be formed (which signatory is hereinafter in this paragraph 19 referred to as the “Signatory”), then the Signatory by his signature hereto warrants that the said company:
19.2 will be formed;
19.2.1 will ratify and adopt the terms and conditions of the Contract; and
19.2.2 will provide the Seller with written proof thereof;
all within a period of 30 days from the date of signature of this Contract by the Signatory.
19.3 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 Contract.
19.4 If the terms and conditions of Clause 19.1 above are not fulfilled, then the Signatory will by his signature to this Contract be deemed ipso facto to have concluded the Contract in his personal capacity as Purchaser.
20. JOINT AND SEVERAL LIABILITY
Should this Contract be signed by more than one person as Purchaser the obligations of all the signatories shall be joint and several.
21. WAIVER
No latitude or extension of time which may be allowed by the Seller in respect of any payment provided for herein, or any matter or thing which the Purchaser is bound to perform or observe in terms hereof shall under any circumstances be deemed to be a waiver of the seller’s rights at any time and without notice, to require strict and punctual compliance with each and every provision or term hereof.
22. INDEMNITY
The Seller does not warrant any information given in respect of the Property, whether this information is given prior to or subsequent of this Contract, save for the information in respect of the Property specifically warranted in this Contract. The Seller shall not be liable for any claim of any nature whatsoever that may arise due to any inaccuracies in information given in good faith by the Seller or the agent to the Purchaser in respect of the Property, or contained in any marketing material, 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 in good faith (save for the information specifically warrantied in this Contract).
23. ANNEXURES
The Purchaser acknowledges that the following annexures also form an integral part of the
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Conditions of Sale and form annexures to this Contract.
“B” – Site plan
“C1” – Block plan
“C2” – Elevations
“D” – Floor plan
“F” – Schedule of finishes
“G1” – Additional Management Rules
“G2” – Substituted Conduct Rules
“H” – Table of costs
“I” – Off plan sectional title schemes transfer processes
24. ENTIRE CONTRACT
The Purchaser acknowledges that this Contract constitutes the sole basis of the contract between himself and the Seller, and that he has not been induced to enter into such contract by any representations or warranties (including, but in no way limited to, any artist’s impression of the Scheme, 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. Any mutual Contract between the Purchaser and the Seller to cancel, alter or add to this Contract 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.