Formation of the Home Owners Association (HOA)

3.1 Registration of the company

The company is formed by virtue of a Notice of incorporation in terms of section 13 (1) of the companies act of 1973.

The commissioner must

• assign to the company a unique registration number
• enter the prescribed information concerning the company in the company register
• endorse the notice of Incorporation and copy of the memorandum of Incorporation filled with it
• issue a registration certificate with
  • the date & time at which the Commissioner issued the certificate
  • the date, if any , stated by the incorporators in the Notice of Incorporation
• If the name of the company, as entered on the Notice of Incorporation is not satisfactory, the commissioner may alter the name accordingly or if prohibited or reserved then
  • An interim name is issued
  • the company is invited to amend the name
• a registration certificate issued is considered to be conclusive evidence of the newly formed or incorporated company

3.2 Memorandum of Incorporation

Each provision of a company’s MOI

• must be consistent with the companies Act of 1973
• is void to the extent that it contravenes or is inconsistent with the Act
  • includes provisions not covered by the Act
  • imposes higher standards, greater restrictions, or longer time periods
  • contains the restrictive conditions applicable to the company
  • prohibits the amendment of any particular provision of the MOI
  • must not negate, restrict ,limit, qualify, extend or alter the substance of the Act
  • The board may amend or repeal any necessary incidental rules relating to the governance of the company in the prescribed manner
  • A company’s MOI may also be amended in the prescribed manner

3.3 Record Keeping

Any documents, accounts, books, writing, records or information that a company is required to keep in terms of the Act must be kept

• In written form or in a manner that is convertible to a written form
• For a period of 7 years after incorporation

Every company must maintain:

• A copy of the MOI and any amendments
• A record of its directors and their respective information as required
• Copies of all reports presented at AGM’s
• Annual financial statements
• Accounting records
• Notices & minutes of member meetings & resolutions adopted
• Resolutions adopted
• Copies of communication
• Minutes of directors meetings & resolutions
• Members register
• Company’s record of directors

3.4 Location of company records

A company’s record must be accessible from the company’s registered office or another location within South Africa

3.5 Access to Company Records

Any member of a nonprofit Company has the right to inspect and copy the following records of the company:

• MOI
• Records in respect to directors
• Reports to annual meetings and annual financial statements
• Notices minutes of annual meetings and communications
• Meetings of members or communication to members

A non member also has the right to inspect or copies the members or Directors on payment of the prescribed amount

3.6 Financial year

A company must have a financial year, ending on a date set out in the companies Notice of incorporation

The board may change the financial year end by filing the appropriate notice thereof

3.7 Accounting records

A company must keep accurate accounting records in one of the official languages as is deemed necessary to:

• Enable the company to satisfy its obligations in terms of the ACT
• Include any accounting records, which must be kept in the prescribed manner
• Ensure records are accessible from the companies registered office

3.8 Annual Financial Statements

Each year, a company must prepare audited annual financial statements within six months after the end of its financial year, or shorter period as may be appropriate to provide notice of an annual general meeting.