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Updated 15 Oct. '07

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St Francis Bay

 

 

Eastern Cape

 

 

South Africa

 

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Legal documentation provided courtesy of Rushmere Noach

 

ST FRANCIS BAY BEACH TRUST

  

made and entered into by and between

 

ALAN OWEN TONKIN

Identity No. xxxxxx xxxx xxx

 

(hereinafter called "the Founder")

of the one part;

 

and

 

ANTHONY CHARLES BALL

Identity No. xxxxxx xxxx xxx

and

PATRICK ROBERT KELLY

Identity No. xxxxxx xxxx xxx

and

JAMES EMLYNN HORNE

Identity No. xxxxxx xxxx xxx

 

(hereinafter called "the First Trustees")

of the other part.

 

WHEREFORE IT IS AGREED AS FOLLOWS

 

1. CREATION OF TRUST

The Founder and the Trustees hereby create a Trust upon the terms and conditions hereinafter set forth, to be known as the ST FRANCIS BAY BEACH TRUST.

 

2. INTERPRETATION

 

2.1 In this Deed of Trust, unless appears otherwise from the context:

 

2.1.1    any reference to natural persons shall include legal persons and vice versa;

 

2.1.2    the singular shall include the plural and vice versa.

 

2.2 The headings to clauses are used only for reference purposes and shall not influence the interpretation of any provision of this Agreement, and the following words and expressions shall have the meanings indicated next to each:-

 

2.2.1     "Income Tax Act" means the Income Tax Act, Act 58 of 1962, as amended;

 

2.2.2     "Commissioner" means the Commissioner for Inland Revenue, or the Commissioner's successor-in-title from time to time, of the Republic of South Africa;

 

2.2.3     "net income" means the gross income earned by the Trust less all costs of administration;

 

2.2.4     "South Africa" means the Republic of South Africa;

 

2.2.5     "Trust" means the ST FRANCIS BAY BEACH TRUST created in terms of this Trust Deed;

 

2.2.6     "Trust Fund" means the funds and other assets from time to time held by the Trustees on behalf of the Trust;

 

2.2.7      "Trust Capital" means the Trust Fund, excluding:

 

2.2.7.1 Trust income which is distributed, or earmarked for distribution

 

2.2.7.2 liabilities of the Trust, whether actual or contingent;

 

2.2.8    "Trust income" or "income" means all income of the Trust Fund excluding the amounts of donations received in any financial year of the Trust;

 

2.2.9    "the Act" means the Trust Property Control Act (Act 57 of 1988, as amended).

 

3. DONATIONS AND ACCEPTANCE

 

3.1       The Founder hereby irrevocably  donates an initial sum of R100,00 (One Hundred Rand) to the Trustees, to be held by them in Trust and to be dealt with and administered by them upon the terms and conditions contained herein.

 

3.2       The Trustees hereby accept the said donation on the terms set out herein and accept the office of Trustee and undertake to discharge their duties in terms of this Deed.

 

4. OBJECT

 

It is the sole object of the Trust to hold, control and administer a Fund in the Republic of South Africa for engaging in the conservation, rehabilitation and protection of the natural environment at St Francis Bay and, more particularly, for the preservation and rehabilitation of the St Francis Bay beach to a condition similar to that which pertained twenty-five (25) years ago, where the beach at low tide was up to 50 metres wide, and for this purpose to acquire funds and assets to be utilised for the above purpose.

 

5. RESTRICTIONS

 

5.1 The Trust Fund shall:

 

5.1.1     only be used to promote the objectives of the Trust in St Francis Bay, South Africa;

 

5.1.2    be utilised solely for the object for which the Trust has been established or for the investment of such funds:

 

5.1.2.1 with a financial institution as defined in section 1 of the Financial Institutions (Investment of Funds) Act 1984;

 

5.1.2.2      in securities listed on a licensed Stock Exchange as defined in section 1 of the Stock Exchanges Control Act, 1985; or

 

5.1.2.3      in such other prudent investments in financial instruments and assets as the Commissioner may determine after consultation with the Executive Officer of the Financial Services Board and the Director of Non-Profit Organisations;

 

Provided that the aforegoing provisions shall not prohibit the Trust from retaining any investment (other than any investment in the form of a business undertaking or trading activity or asset which is used in such business undertaking or trading activity) in the form that it was acquired by way of donation, bequest or inheritance.

 

5.2 Unless the Commissioner otherwise directs:

 

5.2.1     the Trust shall not carry on any business undertaking or trading activity, otherwise than to the extent that –

 

(aa) the gross income derived from such business undertaking or trading activity does not exceed the greater of-

 

(A)     15 per cent of the gross receipts of such public benefit organisation;  or

 

(B)      R25 000;

 

(bb) the undertaking or activity is-

 

(A)     integral and directly related to the sole object of such public benefit organisation;  and

 

(B)     carried out or conducted on a basis substantially the whole of which is directed towards the recovery of cost and which would not result in unfair competition in relation to taxable entities;

 

(cc) the undertaking or activity, if not integral and directly related to the sale object of such public benefit organisation as contemplated in item (bb), is of an occasional nature and undertaken substantially with assistance on a voluntary basis without compensation;  or

 

(dd) the undertaking or activity is approved by the Minister by notice in the Gazette;

 

5.2.2    the Trust may not accept any donation which is revocable at the instance of the donor for reasons other than a material failure to conform to the designated purposes and conditions of such donation, including any misrepresentation with regard to the tax deductibility thereof in terms of section 18A: Provided that a donor may not impose conditions which could enable such donor or any connected person in relation to such donor to derive some direct or indirect benefit from the application of such donation;

 

5.2.3    at least 75% of the funds received by or accrued by the Trust by way of donations which qualify for a deduction in terms of Section 18A of the Income Tax Act shall be distributed (or an obligation will be incurred to so distribute) within twelve (12) months from the financial year end during which such donations are received by the Trust.

 

5.3         The Trustees may not:

 

5.3.1    distribute any of its funds to any person, other than in pursuance of the sole object of this Trust;

 

5.3.2     make any loans, other than a loan to a beneficiary in order to achieve the objectives of the Trust;

 

5.3.3     cause any person making a donation to the Trust to be benefited directly from the Trust Fund or its income;

 

5.3.4     pay any remuneration to any employee, office bearer or other person which is excessive, having regard to what is generally considered reasonable in the sector and in relation to the service rendered.

 

5.4       The a foregoing shall not preclude the Trustees from paying interest on any loan made to the Trust by any person at rates of interest which do not exceed market related rates from time to time.

 

6 TRUSTEES

 

6.1        The minimum number of Trustees shall be three (3) persons, who are not connected persons in relation to each other.

 

6.2       If any of the Trustees vacates the office of Trustee for any reason whatsoever, the remaining Trustees shall be entitled to assume or co-opt a further Trustee or Trustees to fill the vacancies.

 

6.3       If the number of Trustees falls below the minimum of three (3), the remaining Trustees shall, pending the appointment of the necessary additional Trustees, have the power to exercise all the functions and powers of  the Trustees under this Deed, and shall be required in so far as it is within their power, to increase the appointed Trustees to the required number.

 

6.4       Any Trustee engaged in any profession or business will be entitled to charge for services rendered to the Trust at a rate to which he/she or his/her firm would have been entitled in the ordinary course of his/her profession or business, if so resolved by the Trustees.

 

6.5       The appointment of a Trustee shall in each instance automatically terminate:

 

6.5.1     if the Trustee's estate is sequestrated or is voluntarily surrendered (or being a legal person is placed in liquidation or under judicial management) or if the Trustee proposes a general compromise with his/her creditors; or

 

6.5.2      if the Trustee is declared mentally ill by a competent Court or is declared incapable of managing his/her own affairs or if he/she is detained in terms of the Mental Health Act, 1973 (Act 18 of 1973), as a patient in an institution or as a President's patient; or

 

6.5.3     if the Trustee is disqualified in terms of the provisions of section 218(1)(b), (c) or (d) of the Companies Act No. 61 of 1973 or any amendment thereto or substitution therefor, from being appointed or acting as a Director of a company; or

 

6.5.4     if the Trustee's appointment is revoked by a Resolution of the Trustees.

 

7. DUTIES

 

The Trustees shall –

 

7.1       maintain proper accounting and other records of all transactions concluded by them in their capacities as such, and ensure that all financial transactions of the Trust are conducted by means of a banking account;

 

7.2       cause to be framed as at the last day of February (or as at such other date as the Trustees shall from time to time determine) an account of the administration of the Trust disclosing the Trust Fund, all receipts and payments made by or to the Trust, and the manner in which the Trust Fund is held or invested;

 

7.3       procure that the books and records of the Trust, and the account referred to in 7.2 above, be audited annually by auditors appointed by the Trustees for that purpose, if the Trustees so resolve, or if so required by the Master of the High Court or by any law of the Republic of South Africa;

 

7.4        be entitled, if any of the Trustees is a practising Chartered Accountant and Auditor, to appoint that Trustee, or any firm in which he/she is a partner from time to time, to be the Auditor of the Trust;

 

7.5        from time to time furnish the Master and the Commissioner with such information regarding the affairs of the Trust as he/she may legally require;

 

7.6        instruct the auditors of the Trust from time to time to disclose such information regarding the affairs of the Trust to the Master  and the Commissioner as he/she may legally require;

 

7.7        comply with such reporting requirements as may be determined by the Commissioner from time to time;

 

7.8        maintain proper Minutes of all meetings of the Trustees and all decisions from time to time taken by the Trustees.

 

8. POWERS OF TRUSTEES

 

The Trustees will from time to time be entitled to exercise all powers as they in their exclusive discretion regard to be necessary for the efficient administration of the Trust in pursuance of its object, which powers shall include, but not be limited to, the powers set out in Schedule A, which may be exercised subject to the limitations contained in this Trust Deed.

 

9. MEETINGS AND DECISION-MAKING

 

9.1        The Trustees shall meet as determined by themselves but shall meet at least once a year.

 

9.2       The seat of the Trustees and the place where the records of the Trust are kept shall be Port Elizabeth or such other place as the majority of the Trustees may resolve from time to time.

 

9.3       Three (3) Trustees shall constitute a quorum. If a quorum is not present within fifteen (15) minutes of the duly appointed and notified time for the commencement of a Meeting of Trustees, the meeting shall be adjourned for a period of not less than two (2) days and written notice of the time and place of the adjourned meeting shall be given to those Trustees who were not present at the meeting. At the adjourned meeting, the Trustees who are present shall constitute a quorum but only business from the adjourned meeting shall be dealt with.

 

9.4        Unless otherwise agreed in writing by all of the Trustees, at least seven (7) days' prior written notice of every Meeting of the Trustees and the matters to be discussed thereat must be given to the Trustees.  Written notice shall be validly given on the date of posting of the notice to the Trustee concerned or, if the Trustee's address includes a telefax number, notice shall instead be given by telefaxing a copy of the notice to that telefax address and shall be validly given on the date of despatch of the telefax.

 

9.5       Save as is elsewhere stipulated in this Trust Deed, all questions arising at any Meeting of the Trustees shall be decided by the majority vote of the Trustees present at the meeting.

 

9.6        A Trustee shall not be qualified to vote on any Resolution in which that Trustee has a personal financial interest.

 

9.7      The Trustees shall elect a Chairperson from their body, to hold office for such period as the Trustees may decide. The Chairperson shall not enjoy a casting vote.

 

9.8        Every decision taken by the Trustees must be recorded in a Minute Book and shall be signed by the Chairperson of that Meeting.

 

9.9        A Resolution in writing signed by all of the Trustees from time to time shall be as valid and effectual as if it had been passed at a Meeting of the Trustees duly called and constituted.

 

9.10      All contracts, deeds or other documents which require to be signed on behalf of the Trust shall be signed in such a manner as the Trustees from time to time determine.

 

10. LIABILITY AND FIDUCIARY DUTIES OF TRUSTEES

 

10.1 Subject to the provisions of the Act:

 

10.1.1    no Trustee shall be liable for any loss of income or capital which the Trust may suffer as a result of any bona fide error or omission of such Trustee or which may arise from any cause other than deliberate personal fraud on the part of the Trustee thus held liable;

 

10.1.2   no Trustee shall be responsible for the act or omission of any fellow Trustee or any person to whom any rights or obligations were delegated in a proper manner or for any loss suffered by the Trust because the whole or any part of an investment made in accordance with this Deed cannot be recovered; and

 

10.1.3   each Trustee shall be indemnified from the Trust Fund against all costs, losses or expenditures that such Trustee may incur or for which a Trustee may become liable as a result of any bona fide action in carrying out the duties of a Trustee.

 

10.2      No action entered into by or on behalf of the Trust in which any Trustee has any direct or indirect personal interest shall be void or voidable, simply by reason of that interest, and no Trustee who thus does business with the Trust shall (merely because of the office held) be responsible to account to the Trust for any profit which has been made out of such business, provided the Trustee concerned has declared the nature and extent of this interest to the other Trustees or any such interest was in any case known to all the ot